This is an appeal from a judgment of the Court of Common Pleas of Butler County determining that defendant-appellant, Steven H. Theiss, was ineligible for probation by reason of the fact that he was "armed" with a firearm at the time of the offense. The facts giving rise to the appeal are not in dispute, and are as follows.
On May 1, 1987, appellant was arrested by an officer of the Hamilton Police Department while sitting alone in his motor vehicle on "B" Street near the river in the city of Hamilton, Butler County, Ohio. At the time of the arrest, appellant was charged with public indecency and removed from his vehicle. The vehicle was searched by officers of the Hamilton Police Department wherein the officers found approximately twelve grams of cocaine and a loaded pistol either under the front seat or between the front seats of appellant's vehicle. Upon questioning by the officers, appellant took the police to his apartment where they were shown marijuana plants which appellant admitted growing.
As a result of the above incident, on or about June 5, 1987, the Butler County Grand Jury issued an indictment charging the appellant with possession of drug abuse instruments, public indecency, trafficking in marijuana, carrying a concealed weapon, drug abuse, permitting drug abuse, and aggravated trafficking in drugs.
Pursuant to a plea agreement, count five of the indictment alleging aggravated trafficking in drugs was amended to a lesser charge of drug abuse, and the prosecution dismissed the gun specification as to count five. Appellant then entered a guilty plea to all charges.
On October 15, 1987, appellant appeared for sentencing in the Court of Common Pleas of Butler County at which time the sentencing judge imposed a minimum sentence for counts one, three, four, five, and six. As to count two, the charge of carrying a concealed weapon, the appellant was sentenced to a term of two years with the sentence being suspended and appellant being placed on probation. At sentencing, the sentencing judge stated:
"[T]here is no question that the defendant, by virtue of his prior record and the nature of these offenses would, but for the particular section, be favorably considered for * * * probation by this court."
The court further stated:
"In any event, * * * it is the opinion of the court that the wording of the statute is unequivocal and the court has no power to place the defendant on probation because of the fact that he had this firearm under those circumstances."
The trial court thus found that R.C. 2951.02(F)(3) made the appellant ineligible for probation as to counts one, three, four, five and six, but not as to count two. It is from the sentence and decision of the court, finding appellant ineligible for probation, that appellant has filed this appeal assigning the following as error:
"The trial court erred in finding that appellant was ineligible for probation as to Counts I, III, IV, V and VI of the indictment charged herein, pursuant to Section 2951.02(F)(3) of the Ohio Revised Code."
The issue to be determined by this court on appeal is whether the mere possession of a firearm at the time of the commission of a felony offense makes a defendant automatically ineligible *Page 253 for consideration for probation.
R.C. 2951.02(F)(3) provides, in part:
"An offender shall not be placed on probation or otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following applies:
"* * *
"The offense involved was not a violation of section 2923.12 of the Revised Code and was committed while the offender was armed with a firearm or dangerous ordnance, as defined in section2923.11 of the Revised Code.
Effective July 1, 1983, the Ohio legislature amended R.C.2951.02 to provide that an offender convicted of carrying a concealed weapon was eligible to be placed on probation. (See 140 Ohio Laws, Part I, 583, 604, 605.) Prior to that date, the Ohio Supreme Court had determined, in State v. Carter (1983), 3 Ohio St.3d 15, 3 OBR 362, 444 N.E.2d 1334, syllabus, that a conviction for violation of this statute would preclude the trial court from placing a defendant on probation. The trial court in the case sub judice was faced with the dilemma of determining probation eligibility as it applied to appellant. It is obvious that appellant is eligible for consideration of probation for the offense of carrying a concealed weapon, but ineligible for probation on any of the other charges if the court determines that the word "armed" applies to the facts of this case.
The Carter court specifically dealt with the meaning of the term "armed." In that case, the court stated:
"The word `armed' must be accorded its usual and ordinary meaning. That meaning according to Webster's Third New International Dictionary (unabridged) is: `furnished with weapons of offense or defense: FORTIFIED, EQUIPPED.' (Emphasis added.) Thus, as in this statute, it can only mean someone who is `in possesion of a firearm.' The fact that its application to the offense of carrying a concealed weapon gives rise to a somewhat what disconcerting tautologous result does not make it ambiguous. If the General Assembly considers the result an anomaly, it can readily amend the statute in question. It is not for us to judicially legislate." Id. at 16-17, 3 OBR at 364,444 N.E.2d at 1336.
It is interesting to note that R.C. 2951.02(F)(3) does not refer to a firearm actually being "used" in the commission of an offense or that it be utilized in any way during the offense. The prohibition goes to the fact that the offender was armed with a firearm at the time of the commission of the offense.
In State v. Butler (Dec. 3, 1987), Cuyahoga App. No. 53785, unreported,1 the court was faced with a similar problem in determining eligibility for probation. That court stated:
"Seemingly in response to the Carter decision, R.C. 2951.02 was amended on July 1, 1983 to provide that an offender who was convicted of carrying a concealed weapon in violation of R.C.2923.12 may be eligible for probation under certain circumstances. Thus, R.C. 2951.02(F)(3) was amended to state that an offender was ineligible for probation when `[t]he offense involved was not a violation of section 2923.12 of the Revised Code and was committed while the offender was armed with a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code.' Cases *Page 254 decided under the amended version of R.C. 2951.02(F)(3) confirm that probation is not available for an offender where (1) the offense is one other than carrying a concealed weapon, R.C.2923.12, and (2) the offender was armed with a firearm or dangerous ordnance when the offense was committed. * * *" (Footnote omitted.) Id. at 4-5.
This court agrees with the finding of the trial court that appellant was "armed" at the time of the commission of the offenses as contemplated by R.C. 2951.02(F)(3). While this finding may work to bring about a harsh result, we agree with the statement of the Carter court that it is not for us to judicially legislate. It is a question for consideration by the General Assembly.
Appellant's assignment of error is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
HENDRICKSON, J., concurs.
JONES, P.J., dissents.
1 Reporter's Note: The court of appeals' decision was later affirmed in State Butler (1989), 42 Ohio St.3d 174,538 N.E.2d 98.