[Cite as State v. Leasure, 2018-Ohio-1470.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 17 CA 33
GARY R. LEASURE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 17 CR 19
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: April 13, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT SCOTT P. WOOD
PROSECUTING ATTORNEY CONRAD & WOOD
CHRISTOPHER REAMER 120 East Main Street
ASSISTANT PROSECUTOR Suite 200
239 West Main Street, Suite 101 Lancaster, Ohio 43130
Lancaster, Ohio 43130
Fairfield County, Case No. 17 CA 33 2
Wise, John, P. J.
{¶1} Appellant Gary R. Leasure appeals his sentence entered in the Fairfield
County Court of Common Pleas following a plea of guilty to one count of trespassing,
one count of violation of a protection order, and one count of resisting arrest.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows:
{¶3} On January 13, 2017, Appellant Gary Leasure was indicted on the following
counts: Count 1: possession of heroin, in violation of R.C. §2925.11 (C)(6)(a), a felony
of the fifth degree; Count 2: possession of drug abuse instruments, in violation of R.C.
§2925.12, a misdemeanor of the second degree; Count 3: Trespass in a permanent or
a temporary habitation, in violation of R.C. §2911.12(8), a felony of the fourth degree;
Count 4: violation of a protection order, in violation of R.C. §2919.27, a misdemeanor of
the first degree; and, Count 5: resisting arrest, in violation of R.C. §2921.33, a
misdemeanor of the second degree, to which Appellant entered pleas of not guilty.
{¶4} On March 31, 2017, Appellant entered a guilty plea to Count 3, Count 4 and
Count 5, a felony and two misdemeanors, and was placed on 5 years of community
control.
{¶5} On July 6, 2017, a motion was filed to revoke Appellant's community control.
{¶6} On July 31, 2017, an oral hearing was held on the motion to revoke
Appellant's community control. At that time, Appellant waived his right to a hearing and
stipulated to violations of his community control. Further, Appellant requested that the
trial court impose the balance of his sentence. Appellant further requested that the
Fairfield County, Case No. 17 CA 33 3
sentences for the two misdemeanor violations run concurrent with the felony sentence.
(Revocation Hearing, T. at 6-7).
{¶7} At the revocation hearing, the trial court revoked Appellant's community
control and imposed a sentence of 16 months in a state penal institution on Count 3.
With regard to Count 5, the trial court ordered that 90 days in the Fairfield County Jail
run concurrent with the 16 month prison sentence. On Count 4, the trial court ordered
that Appellant be sentenced to 180 days in the Fairfield County Jail, consecutive to the
16 month prison sentence. The trial court also gave Appellant 210 days of jail time credit.
(Revocation Hearing, T. at 11).
{¶8} As a result of the trial court's imposition of consecutive sentencing with
regard to Count 3 and Count 4, 180 days of the 210 days of jail time credit was first
applied to the misdemeanor sentence and only 30 days was applied to the 16 month
prison sentence.
{¶9} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶10} “I. THE TRIAL COURT ERRED IN IMPOSING A SENTENCE THAT IS
CONTRARY TO LAW.”
I.
{¶11} In his sole assignment of error, Appellant argues that the trial court erred in
imposing consecutive sentences in this matter. We agree.
{¶12} Appellant herein argues that the trial court erred by failing to run his
misdemeanor jail sentences concurrent to his felony prison sentence pursuant to R.C.
§2929.41(A) provides, in relevant part:
Fairfield County, Case No. 17 CA 33 4
Except as provided in division (B)(3) of this section, a jail term or
sentence of imprisonment for misdemeanor shall be served concurrently
with a prison term or sentence of imprisonment for felony served in a state
or federal correctional institution.
{¶13} This language was recently discussed by the Supreme Court of Ohio in State
v. Polus, 145 Ohio St.3d 266, 2016–Ohio–655, 48 N.E.3d 553, where the court held that
a trial court must impose concurrent sentences for felony and misdemeanor convictions
under R.C. §2929.41(A) unless the exception within R.C. §2929.41(B)(3) pertaining to
certain motor vehicle offenses applies.
{¶14} In this case, the parties acknowledge that the exception found in R.C.
§2929.41(B)(3) does not apply. Thus, we find that the trial court erred in imposing
consecutive sentences for Appellant's felony and misdemeanor offenses.
{¶15} Appellant's sole assignment of error is sustained.
{¶16} For the forgoing reasons, the judgment of the Fairfield County Court of
Common Pleas is reversed. Pursuant to App.R. 12(B), we modify the trial court's order
by instructing that Appellant's misdemeanor sentence of 180 days in jail on Count Four,
Violation of a Protection Order, in violation of R.C. §2919.27(A)(1), is to be served
Fairfield County, Case No. 17 CA 33 5
concurrently with his 16 month felony sentence on Count Three, Trespass in a Habitation,
in violation of R.C. §2911.12(B).
By: Wise, John, P. J.
Hoffman, J., and
Wise, Earle, J., concur.
JWW/d 0403