I write separately because R.C. 2953.08(A)(2) and 2953.08(G)(1)(b) expressly preclude Beasley's appeal of the maximum prison term imposed for a fifth-degree-felony drug conviction as a matter of right. The majority does not follow the narrow statutory review required for a fifth-degree felony and by our holding in State v. McNeel (May 22, 1998), Hamilton App. No. C-960980, unreported.
A sentence that imposes a prison term for a fifth-degree felony is reviewable as a matter of right, under R.C.2953.08(A)(2), only if the trial court does not specify one or more of the sentencing factors in R.C. 2929.13(B)(1)(a) through (h). The General Assembly has provided, "If the court specifies that it found one or more of those factors to apply relative to the defendant, the defendant is not entitled under this division to appeal as a matter of right the sentence imposed upon the offender." R.C. 2953.08(A)(2). Here, the trial court correctly found that the factor identified in R.C. 2929.13(B)(1)(g) applied to Beasley, as he had previously served a prison term.
The limited appeal of a prison term for a fifth-degree felony in R.C. 2953.08(A)(2) is reinforced by R.C. 2953.08(G)(1)(b), which states that an appellate court may "increase, reduce, or otherwise modify" a prison term for a fifth-degree felony in those instances where the trial court failed to specify its finding of a factor under R.C. 2953.08(B)(1)(a) through (h) or to follow the procedures, or if the trial court followed the procedures, where there was an insufficient basis for imposing a prison term. We have regularly recognized a defendant's standing to appeal a prison term imposed for a fifth-degree felony when the challenge addresses the sufficiency of the evidence as to a finding of one of the essential factors in R.C. 2929.13(B)(1)(a) through (h). See State v. Flahive (1998), 127 Ohio App.3d 32, *Page 698 711 N.E.2d 746; State v. Shryock (Aug. 1, 1997), Hamilton App. No. C-961111, unreported.
The majority relies on the provisions of R.C. 2953.08(A)(1) generally governing an appeal of maximum sentences as a matter of right. Conversely, R.C. 2953.08(A)(2) specifically addresses an appeal from the imposition of a prison term for a fifth-degree felony. Therefore, it is a special statutory provision. Absent a manifest intent by the General Assembly that the general provision is to prevail, the special provision controls as an exception to the general provision when there is an irreconcilable conflict. R.C. 1.51. The preclusion of an appeal as a matter of right when the trial court makes one of the specific findings under R.C.2929.13(B)(1)(a) through (h) seems clear enough, but if the two sections are deemed to be in conflict, R.C. 2953.08(A)(2), as the special provision, must prevail.
The General Assembly's limitation of the court's inherent power to sentence within the range of former statutory penalties and the innovation of sentence review were products of Am.Sub.S.B. No. 2 and Am.Sub.S.B. No. 269. "In looking to the face of a statute or Act to determine legislative intent, significance and effect should be accorded every word, phrase, sentence and part thereof, if possible." State v. Wilson (1997), 77 Ohio St.3d 334,336, 673 N.E.2d 1347, 1349. For a fifth-degree felony, the difference in the range between the maximum and minimum terms is six months. It is reasonable to conclude that if a prison term is proper for a defendant who has previously served a prison term, then whether that defendant serves six or twelve months is a matter the General Assembly entrusted to the trial court's discretion as provided in R.C. 2929.13(B)(1)(g). This limited appeal favors conservation of judicial resources in the context of a six-month spread for a felony conviction and the overriding purposes and principles of sentencing in R.C. 2929.11. Similar to R.C. 2953.08(D), in which the General Assembly provided no appeal from an agreed sentence, its intent was to provide a more narrow appeal for a prison term imposed for a fifth-degree felony. Accordingly, only the imposition of a prison term and not the length of the prison term may be challenged on appeal from a fifth-degree felony conviction.
The importance of this issue involves more than legal jousting. Since appellate decisions are the benchmarks of criminal sentencing, we are responsible for statutory construction of the host of new criminal sentencing laws enacted by the General Assembly in Am.Sub.S.B. No. 2 and Am.Sub.S.B. No. 269. Although the practical result of the majority's analysis affords Beasley no relief, I, nevertheless, would hold that the plain meaning of the statutory language requires us to dismiss this appeal rather than to affirm the trial court. *Page 699