[Cite as State v. Davis, 2018-Ohio-4095.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2018-0024
STEPHANIE L. DAVIS
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Common Pleas Court, Case No.
CR2016-0324
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 9, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
D. MICHAEL HADDOX JAMES A. ANZELMO
Prosecuting Attorney 446 Howland Drive
Muskingum County, Ohio Gahanna, Ohio 43230
BY: GERALD V. ANDERSON, II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0024 2
Hoffman, P.J.
{¶1} Plaintiff-appellant the state of Ohio appeals the April 3, 2018 Entry entered
by the Muskingum County Court of Common Pleas, which granted judicial release to
defendant-appellee Stephanie Davis.
STATEMENT OF THE CASE1
{¶2} Appellee was convicted of two counts of possession of drugs, both felonies
of the fifth degree; two counts of possession of drug paraphernalia, both misdemeanors
of the fourth degree; one count of possession of drugs with a prior offense, a felony of the
fifth degree; and one count of tampering with evidence, a felony of the third degree. On
January 10, 2017, the trial court sentenced Appellee to a two year period of community
control with an alternative prison sentence of six years.
{¶3} On February 9, 2017, the state filed a motion to revoke Appellee’s
community control after she was charged with domestic violence. The trial court
conducted a hearing on February 27, 2017, at which time Appellee entered a plea of guilty
to the community control violation. Via Entry filed March 2, 2017, the trial court revoked
Appellee's community control and imposed an aggregate prison term of six years.
{¶4} After Appellee had served approximately one year of her sentence, the trial
court issued a warrant for removal, ordering the sheriff to transport her to court for a
judicial release hearing on April 2, 2018. At the hearing, the state objected, arguing
Appellee was not eligible for judicial release until “not earlier than five years” after she
was delivered to prison pursuant to R.C. 2929.20(C)(4). The trial court disagreed, finding
1 A Statement of the Facts is not necessary for our disposition of this Appeal.
Muskingum County, Case No. CT2018-0024 3
she was eligible as she was not subject to a mandatory prison sentence, and granted
judicial release. The trial court placed Appellee on community control for a period of two
years. The trial court memorialized its decision via Entry filed April 3, 2018.
{¶5} It is from this entry the state appeals, raising as its sole assignment of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT HELD
A HEARING AND GRANTED JUDICIAL RELEASE CONTRARY TO LAW
AND WITHOUT JURISDICTION OR AUTHORITY OVER THE
PROCEEDINGS.
I.
{¶6} The state asserts the trial court's decision to grant Appellee judicial release
was contrary to law because she was not eligible pursuant to R.C. 2929.20(C)(4).
Appellee submits, because R.C. 2953.08(B)(3) only grants the state a right to appeal if a
court modifies a sentence imposed for a first or second degree felony and she was
convicted of third and fifth degree felonies, the state does not have the right to appeal the
trial court's sentence modification and judicial release.
{¶7} The right of a prosecuting attorney to appeal a sentence is provided by R.C.
2953.08(B):
(B) In addition to any other right to appeal and except as provided in
division (D) of this section, a prosecuting attorney * * * may appeal as a
matter of right a sentence imposed upon a defendant who is convicted of or
pleads guilty to a felony or, in the circumstances described in division (B)(3)
Muskingum County, Case No. CT2018-0024 4
of this section the modification of a sentence imposed upon such a
defendant, on any of the following grounds:
***
(2) The sentence is contrary to law.
(3) The sentence is a modification under section 2929.02 of the
Revised Code of a sentence that was imposed for a felony of the first or
second degree.
{¶8} The Ohio Supreme Court addressed the scope of the state's right to appeal
a sentence modification based on judicial release in State v. Cunningham, 113 Ohio St.3d
108, 2007-Ohio-1245, 863 N.E.2d 120. In Cunningham, the defendant was sentenced to
community control after pleading guilty to a felony of the fifth degree. Id. at ¶2. After the
defendant violated the terms of her community control, the trial court imposed a one-year
term of incarceration. Id. Two months later, the defendant moved for judicial release under
R.C. 2929.20, but withdrew the motion before the trial court ruled on it. Id. at ¶3. The
defendant filed a second motion for judicial release, moving the trial court to “reinstate”
her first motion for judicial release. Id. The second motion was untimely filed. The trial
court granted that motion and modified the defendant's sentence of incarceration to a
four-year period of community control. Id. The state appealed, arguing the trial court
acted contrary to law in granting judicial release because the court had no authority to
reinstate the defendant's withdrawn motion for judicial release. Id.
{¶9} Prior to oral argument, the appellate court, sua sponte, raised the issue of
whether the trial court's order modifying the sentence constituted a final, appealable
Muskingum County, Case No. CT2018-0024 5
order. Id. at ¶4. In a split decision, the appellate court dismissed the state's appeal,
holding that granting judicial release for third, fourth, or fifth-degree felonies was not a
final, appealable order; therefore, R.C. 2953.08(B) did not grant the state the right to
appeal. Id. The state appealed to the Ohio Supreme Court, arguing R.C. 2953.08(B)(2)
authorizes an appeal from modification of any sentence that is contrary to law, and the
modification of sentence granting judicial release to Cunningham violated R.C.
2929.20(B)(1)(a) because Cunningham did not file her motion seeking judicial release in
a timely manner. Id. at ¶5.
{¶10} The Cunningham Court held “R.C. 2953.08(B)(2) does not authorize a
prosecuting attorney to appeal the modification of a sentence granting judicial release for
a felony of the third, fourth, or fifth degree.” Id. at ¶28. The Supreme Court also rejected
the state's argument it had the “right to appeal pursuant to R.C. 2953.08(B)(2) from orders
granting judicial release pursuant to R.C. 2929.20 that are contrary to law.” The Supreme
Court found R.C. 2953.08(B)(2) does not refer to the modification of a sentence; rather,
it authorizes the prosecuting attorney to appeal, as a matter of right, a sentence imposed
on a defendant on the grounds “[t]he sentence is contrary to law.” Id. at ¶22. The High
Court concluded R.C. 2953.08(B)(2) does not apply to a modification of a sentence which
is allegedly contrary to law. Id. (Citation omitted.) (Emphasis added.)
{¶11} In a case similar to the instant matter, the Fourth District Court of Appeals
in State v. Sparks, 178 Ohio App.3d 272, 2008-Ohio-4664, found Cunningham to be
controlling:
[W]e believe that Cunningham is controlling and requires us to
Muskingum County, Case No. CT2018-0024 6
dismiss the appeal. Appellant is attempting to appeal the trial court's
decision to modify appellee's sentence and grant judicial release for third-
degree felonies. Appellant asserts that the trial court's decision is contrary
to law. As Cunningham states, however, R.C. 2953.08(B) does not
authorize the state to appeal a sentence modification claimed to be contrary
to law or a sentence modification under R.C. 2929.20 for a third-, fourth-, or
fifth-degree felony. See also State v. Fox, Cuyahoga App. No. 87821, 2007-
Ohio-3893, 2007 WL 2206793. Accordingly, we must dismiss the state's
appeal. State v. Sparks, 178 Ohio App.3d 272, 2008-Ohio-4664 ¶7. (Italics
omitted in original.)
{¶12} We agree and find Cunningham applicable; therefore, we must dismiss the
state’s appeal. As Judge Harsha explained in his concurring opinion in Sparks:
Although the trial court clearly erred in the exercise of its jurisdiction
by granting judicial release to an ineligible offender, that error rendered the
resulting judgment voidable, not void. Thus, the state's remedy is to attack
the judgment through a direct appeal. However, R.C. 2953.08(B) does not
permit the state to appeal the trial court's decision to grant judicial release
to an offender convicted of a third-, fourth-, or fifth-degree felony. Because
the state does not have a substantial right to appeal in this special statutory
Muskingum County, Case No. CT2018-0024 7
proceeding, there is no appealable order, and we lack jurisdiction to
consider a direct appeal in this case. Thus, I concur in the judgment of the
principal opinion.
Id. at ¶16.
{¶13} Based upon the foregoing, we find the state did not have a right to appeal
the trial court’s modification of Appellee’s sentence. Accordingly, Appellant’s assignment
of error is overruled and this appeal ordered dismissed.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur