The state of Ohio (the "state") appeals from the trial court's sentencing order placing defendant-appellee on probation after the jury returned a guilty verdict for one count of aggravated robbery (R.C. 2911.01) and a not guilty verdict on the accompanying firearm specification. The state contends that the appellee is ineligible for probation pursuant to R.C.2951.02(F)(3) despite the jury's not guilty verdict on the firearm specification. We agree with the state's assertion.
The following assignment of error is presented for our review:
"The trial court erred by placing a defendant on probation where he was found guilty of aggravated robbery but not guilty of the firearm specification, where there was evidence that a firearm was used in the crime and the term firearm was in the body of the indictment. (T. Vol. 2)."
This court, in State v. Pope (Sept. 2, 1993), Cuyahoga App. No. 63606, unreported, 1993 WL 335442, was faced with this very issue and held that a criminal defendant armed with a firearm or dangerous ordnance, when an offense other than carrying a concealed weapon is committed, is conclusively ineligible for probation pursuant to R.C. 2951.02(F)(3), notwithstanding the absence of an express R.C. 2941.141 firearm specification.
Probation is precluded by R.C. 2951.02, which provides in part as follows:
"(F) An offender shall not be placed on probation * * * when any of the following applies:
"* * *
"(3) The offense * * * was committed while the offender wasarmed with a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code." (Emphasis added.)
The above statute does not refer to a firearm actually being "used" during the commission of an offense; rather, the prohibition refers to the fact that the offender was "armed" at the time of the commission of the offense. State v. Theiss (1988), 48 Ohio App. 3d 251, 253, 549 N.E.2d 201, 202-203; Statev. Pope, supra, at 8-9.
In contrast, R.C. 2941.141 is a penalty enhancement statute and provides, inter alia, for the imposition of a term of actual incarceration upon an *Page 180 offender for having a firearm on or about his person or under his control during the commission of a felony so long as the indictment contains the applicable specification. As such, it is clear that R.C. 2941.141 provides for the imposition of a mandatory term of incarceration as a penalty enhancement to the actual sentence imposed for the commission of the crime as set forth in the indictment. State v. Pope, supra, at 9. R.C.2941.141 calls for actual incarceration while R.C. 2951.02 does not. Ergo, a jury's failure to affirmatively find on a firearm specification merely precludes the imposition of the mandatory actual term of incarceration. State v. Pope, supra, at 10;State v. Knox (June 11, 1991), Franklin App. No. 89AP-1168, unreported, 1991 WL 115820.
In this case, as in Pope, the jury returned a guilty verdict on one count of aggravated robbery. In doing so, the jury had to have found that the appellee had a deadly weapon, to wit, a firearm, on or about his person or under his control during the commission of the crime. Id. "This, standing alone, renders [appellee] ineligible for probation. Cf. State v. Koss (1990),49 Ohio St. 3d 213, 219-220, 551 N.E.2d 970, 975-976 (although jury acquitted defendant of the gun specification, trial court correctly determined that defendant was ineligible for probation because the offense of voluntary manslaughter was committed with a firearm)."
"Thus, a criminal defendant armed with a firearm or dangerous ordnance when the offense was committed, with the exception of R.C. 2923.12 (carrying a concealed weapon), is conclusively ineligible for probation pursuant to R.C. 2951.02(F)(3), notwithstanding the absence of an express R.C. 2941.141 firearm specification." State v. Pope at 10-11. Therefore, the not guilty verdict on the firearm specification does nothing to change the status of the appellee's ineligibility for probation.
The appellee relies upon this court's decision in State v.Anderson (July 12, 1990), Cuyahoga App. No. 58743, unreported, 1990 WL 96074, wherein we held that the defendant was entitled to expungement of his criminal record for his conviction of aggravated robbery, as the offense was probationable. TheAnderson court reasoned that, because the original trial record was not before the court, there was no evidence showing the gun specified in the indictment was capable of expelling projectiles and, therefore, the record failed to prove the gun was a "firearm" pursuant to R.C. 2923.11(B)(1). Anderson is distinguishable from the within case.
In this case, the original trial record is indeed before us and we are satisfied there was the requisite evidence presented to the jury that the gun the appellee was armed with was a "firearm" as defined in R.C. 2923.11(B)(1). In fact, the jury's finding on this point is not challenged on appeal. A review of the jury verdict form in the instant case reveals the jury convicted him of: *Page 181
"Aggravated Robbery in violation of R.C. 2911.01, in that he did, on or about June 6, 1991, in the State of Ohio, County of Cuyahoga, in attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense upon Earle Dorman and/or Yellow Cab have a deadly weapon * * * on or about his person or under his control * * *."
The "deadly weapon" as referred to in the indictment was a "firearm."
As the offense in this case is non-probationable, the state's assignment of error is well taken.
Judgment is reversed and remanded for re-sentencing consistent with this opinion.
Judgment reversedand cause remanded.
MATIA, J., concurs.
JAMES D. SWEENEY, J., dissents.