State v. Sparks

{¶ 17} I respectfully dissent.

{¶ 18} Pursuant to R.C. 2953.08, I agree with the majority that the state is not permitted to appeal judicial modification of a sentence when the underlying felony is a fifth, fourth, or third degree. State v. Cunningham,113 Ohio St. 3d 108, 2007-Ohio-1245, 863 N.E.2d 120, interpreting R.C. 2953.08(B)(3). I further agree with the majority that the state generally is not permitted to appeal a judicial modification of a sentence on the grounds that it is contrary to law. Id. However, unlike the majority, I interpretCunningham to allow an appeal by the state when it challenges the jurisdiction of the trial court.

{¶ 19} In Cunningham, the defendant committed a fourth-degree felony theft. After finding that R.C. 2953.08(B)(3) did not allow the state to appeal, theCunningham court addressed the state's jurisdiction argument. The state contended that the trial court lacked jurisdiction to modify the defendant's original sentence because the defendant did not timely file his motion under the judicial-release statute. The Cunningham court found that the trial court did have jurisdiction because the defendant timely filed his motion.

{¶ 20} Here, unlike Cunningham, the trial court did not have jurisdiction to modify the original sentence because the defendant is not an "eligible offender" under the judicial-release statute. The trial court originally imposed a total sentence of 12 years, which makes the defendant ineligible for judicial release. See R.C. 2929.20(A).

{¶ 21} Further, once a trial court imposes a sentence, it lacks the inherent authority to modify that sentence. See, e.g., State v. Addison (1987),40 Ohio App. 3d 7, 530 N.E.2d 1335. Consequently, a trial court can modify a sentence only as authorized by statute.Cunningham, supra, at ¶ 23. *Page 279

{¶ 22} Therefore, because the trial court lacked statutory and inherent authority to make the modification, the modified sentence is invalid. State v. Moore, Highland App. No. 03CA18, 2004-Ohio-3977, 2004 WL 1689674. See alsoState v. Garretson (2000), 140 Ohio App. 3d 554,748 N.E.2d 560; State v. Clark, Cuyahoga App. No. 82519, 2003-Ohio-3969, 2003 WL 21715019.

{¶ 23} Accordingly, I dissent.