State v. Culp

[Cite as State v. Culp, 2020-Ohio-5287.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1281

Appellant Trial Court No. CR0201902009

v.

Cordell Henderson Culp DECISION AND JUDGMENT

Appellee Decided: November 13, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellant.

Autumn D. Adams, for appellee.

*****

MAYLE, J.

{¶ 1} In this appeal, appellant, the state of Ohio, asks us to reverse the

November 6, 2019 judgment of the Lucas County Court of Common Pleas that found

R.C. 2929.14(B)(1)(a) unconstitutional as applied to appellee, Cordell Culp, and granted

him 156 days of jail-time credit against the mandatory prison term that the court imposed
for Culp’s conviction of a firearm specification under R.C. 2941.141. For the following

reasons, we reverse, in part.

I. Background

{¶ 2} On June 10, 2019, Culp was indicted on one count of aggravated robbery in

violation of R.C. 2911.01(A)(1), a first-degree felony; one count of receiving stolen

property in violation of R.C. 2913.51(A), a fourth-degree felony; and one count of having

weapons while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony.

The aggravated robbery and receiving stolen property charges also included 3-year

firearm specifications under R.C. 2941.145.

{¶ 3} Culp and the state reached a plea agreement that allowed Culp to plead no

contest to a reduced charge of robbery in violation of R.C. 2911.02(A)(3), a third-degree

felony, with a 1-year firearm specification under R.C. 2941.141, and the indicted charge

of having weapons while under disability. In exchange for Culp’s plea, the state agreed

to dismiss the receiving stolen property charge and recommend that the trial court

sentence Culp to serve the mandatory one-year prison term attached to the firearm

specification, followed by a term of community control. The trial court accepted Culp’s

pleas and found him guilty.

{¶ 4} The primary issue at the sentencing hearing was whether Culp was entitled

to jail-time credit against his mandatory prison sentence for the time he was incarcerated

prior to sentencing. Culp was held in jail in lieu of bail from the time of his arrest until

the time of his sentencing, which amounted to 156 days. In response to questions from

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the court, Culp explained that he was unable to afford bail, which the court set during

Culp’s arraignment at “$100,000.00 no 10% allowed as to count 1 and supervised own

recognizance as to counts 2 and 3 * * *.” Culp claimed that he would have posted bail

and been released if he had the money to do so, but he could neither afford to pay the bail

outright nor pay a bondsman to post the bail for him. He also said that he did not have

any friends or family members who offered to post his bail.

{¶ 5} Culp argued that the trial court was required to award him credit for the days

he spent in jail prior to his sentencing, even though the Revised Code expressly provides

that mandatory prison terms imposed for firearm specifications cannot be reduced

through jail-time credit. As an indigent person, he claimed that he was treated differently

than people who were not indigent and could afford bail, and failing to credit him for the

time he was confined in lieu of bail would violate his equal protection rights under the

U.S. and Ohio Constitutions. Specifically, Culp argued, he spent nearly five months in

jail before his sentencing and unless the trial court granted him credit for those days, he

would be incarcerated for a total of one year and five months simply because he was

indigent, while a wealthier defendant who could afford to post bail and was facing the

same one-year mandatory sentence would be incarcerated for only one year. In support

of his argument, Culp cited to State v. Dubose, 2d Dist. Montgomery No. 26105, 2015-

Ohio-621, an OVI case in which the Second District found that the defendant’s equal

protection rights were violated when the trial court failed to give him credit against a

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mandatory sentence imposed under R.C. 2929.13(G)(2) for the time the defendant was in

jail prior to sentencing.

{¶ 6} The state responded that Culp was asking the court to ignore the plain

language of the Revised Code, which clearly states that prison time imposed for a firearm

specification is mandatory and cannot be reduced by any provisions in R.C. Chapter

2967, including R.C. 2967.191, the statute that governs credit for time spent in

confinement while awaiting trial. Additionally, the state noted that the trial court would

be reserving a prison sentence as a potential sanction for any community-control

violations, and, if Culp were sentenced to prison in the future, he would receive credit for

the time he spent in jail prior to his sentencing. So, the state argued, Culp “is actually not

losing out on anything.”

{¶ 7} After hearing the parties’ arguments, the trial court determined that it could

not apply the statutory prohibition against awarding jail-time credit on mandatory firearm

specification prison terms because

if I were not to give Mr. Culp jail credit to the spec in this situation,

it would violate both his federal and Ohio equal protection rights as it

would treat him differently as an indigent person than someone under the

exact same circumstance who had the money to post bail so, therefore, I

will be giving him 156 days credit as to the gun spec. I’m not saying that

the gun spec statute is unconstitutional, I’m only saying I can’t apply it in

this case.

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 {¶ 8} The court went on to sentence Culp to one year of mandatory prison time

under R.C. 2929.14(B)(1)(a) for the firearm specification attached to the robbery

conviction and granted him credit for 156 days he spent in custody prior to sentencing.

The court also sentenced Culp to four-year terms of community control on the robbery

and weapons under disability convictions. One of the terms of Culp’s community control

required that he be “committed to [a community-based correctional facility] for 6 months

* * *.” The court ordered the community control sanctions to be served concurrently

with the prison term for the firearm specification.

{¶ 9} The state now appeals, raising one assignment of error:

The trial court erred in finding that R.C. 2929.14(8)(1)(a) is

unconstitutional as applied to the defendant in this case.

II. Law and Analysis

{¶ 10} In its assignment of error, the state argues that the trial court erred because

R.C. 2941.14(B)(1)(b) unambiguously states that a prison sentence for a firearm

specification “shall not be reduced pursuant to * * * any other provision of Chapter 2967

* * * of the Revised Code,” including R.C. 2967.191, which reduces prison terms for

time spent in confinement awaiting trial. It also contends that the trial court incorrectly

determined that Culp’s equal protection rights were violated because he is not a member

of a suspect class and mandatory prison sentences for firearm specifications are rationally

related to a legitimate government interest. We need not reach the issue of equal

protection, however, because courts decide constitutional questions “only when

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absolutely necessary,” State v. Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d

1146, ¶ 7, and Culp’s sentence is contrary to law because R.C. 2929.13(F)(8) requires the

trial court to impose a prison sentence on Culp’s underlying robbery conviction.

{¶ 11} We review criminal sentences under R.C. 2953.08(G)(2). The statute

allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate

the sentence and remand the matter for resentencing if it clearly and convincingly finds

either of the following:

(a) That the record does not support the sentencing court’s findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2). None of the provisions in R.C. 2953.08(G)(2)(a) is applicable here.

However, we find under R.C. 2953.08(G)(2)(b) that Culp’s sentence is otherwise

contrary to law.

{¶ 12} Mandatory prison terms are required for certain offenses listed in R.C.

2929.13(F). State v. Johnson, 116 Ohio St.3d 541, 2008-Ohio-69, 880 N.E.2d 896, ¶ 9.

Although the Johnson court addressed a case involving R.C. 2929.13(F)(2), which

requires a prison sentence when a defendant is convicted of rape, the court also stated that

“the mandatory-sentence provision of R.C. 2929.13(F) applies to a number of offenses,

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including * * * felonies committed while the offender had a firearm on or about the

offender’s person or control * * *.” Id. at ¶ 10.

{¶ 13} Under R.C. 2929.13(F)(8), a trial court

shall impose a prison term * * * for * * * [a]ny offense, other than

[carrying concealed weapons], that is a felony, if the offender had a firearm

on or about the offender’s person or under the offender’s control while

committing the felony, with respect to a portion of the sentence imposed

pursuant to division (B)(1)(a) of section 2929.14 of the Revised Code for

having the firearm[.] (Emphasis added.)

Under the plain language of the statute, when a defendant is convicted of committing any

felony (with the exception of carrying concealed weapons) while having or controlling a

firearm, the court is required to impose a prison term—not community control

sanctions—in addition to the mandatory prison term for the firearm specification required

by R.C. 2929.14(B)(1)(a). State v. Shields, 2d Dist. Montgomery No. 28573, 2020-Ohio-

3204, ¶ 11; accord State v. Galvan, 8th Dist. Cuyahoga No. 108658, 2020-Ohio-1285,

¶ 20; State v. Wofford¸ 1st Dist. Hamilton No. C-180411, 2019-Ohio-2815, ¶ 8; State v.

White, 10th Dist. Franklin No. 10AP-34, 2011-Ohio-2364, ¶ 74; State v. Christian, 7th

Dist. Mahoning No. 02 CA 170, 2005-Ohio-1440, ¶ 65, 80; contra State v. Roush, 5th

Dist. Morrow No. 13CA0008, 2014-Ohio-4887, ¶ 35 (in the context of denying a

postconviction “motion to correct sentence” based on res judicata, interpreting R.C.

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2929.13(F)(8) as requiring “the firearm specification penalty be made mandatory, but not

the penalty for the underlying offense.”).

{¶ 14} A plea to or conviction of a firearm specification automatically meets the

criteria in R.C. 2929.13(F)(8) that triggers a mandatory prison term for the underlying

offense—i.e., it shows that the “offender had a firearm on or about the offender’s person

or under the offender’s control while committing the felony * * *.” See Shields at ¶ 11.

Moreover (and particularly relevant to Culp’s case), a defendant who commits a crime

while having or controlling a firearm—and is thus subject to a mandatory prison sentence

under R.C. 2929.13(F)(8)—is not eligible for community control sanctions. Id.; Wofford

at ¶ 10. The very first sentence of the community control statute states that a court may

impose a sentence that “consists of one or more community control sanctions * * *” only

if “the court is not required to impose a prison term, a mandatory prison term, or a term

of life imprisonment upon the offender * * *.” R.C. 2929.15(A)(1).

{¶ 15} Here, the trial court imposed a sentence that is clearly and convincingly

contrary to law. Because Culp pleaded no contest to a firearm specification under R.C.

2941.141, and the trial court found him guilty of that specification, R.C. 2929.13(F)(8)

mandated that the trial court also impose a prison sentence for the robbery charge to

which Culp pleaded no contest and of which the trial court found him guilty. And under

R.C. 2929.15(A)(1), Culp was ineligible for community control sanctions on the robbery

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charge because the court was “required to impose a prison term [or] a mandatory prison

term” upon Culp.1

{¶ 16} The parties and the trial court relied on State v. Hamm, 2016-Ohio-2938, 65

N.E.3d 143 (8th Dist.), to support the imposition of a prison sentence for the firearm

specification and a concurrent term of community control for the underlying robbery

conviction. Hamm is distinguishable, though, because the defendant in that case was

convicted of attempted criminal gang activity, intimidation, and attempted felonious

assault—none of which require a mandatory prison term under R.C. 2929.13(F). To that

extent, Hamm is inapplicable to Culp’s situation and cannot be used to justify the

sentence that the trial court imposed.

{¶ 17} We note that the legislature’s requirement of a prison sentence for an

offense committed when the defendant had or controlled a firearm remedies any equal

protection concerns in this case. Although R.C. 2929.13(F) generally prohibits the

reduction of sentences imposed under that section through judicial release, the “80%

release procedure” found in R.C. 2967.19, participation in certain rehabilitative prison

programs, and “any other provision of Chapter 2967. or Chapter 5120. of the Revised

Code,” it specifically allows for the reduction of sentences under R.C. 2967.191, which is

1
The trial court’s inclusion of time in a community-based correctional facility following
the completion of Culp’s prison term also raises concerns about improper imposition of
consecutive terms of imprisonment. See State v. Paige, 153 Ohio St.3d 214, 2018-Ohio-
813, 103 N.E.3d 800, ¶ 13. However, because we are reversing that part of Culp’s
sentence, we need not address this issue.

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the statute that controls “[c]redit for confinement awaiting trial and commitment.” So, in

this case, on remand, when the trial court imposes a prison sentence for Culp’s robbery

conviction—which must be 9, 12, 18, 24, 30, or 36 months under R.C.

2929.14(A)(3)(b)—it will also be required to credit him with the 156 days he was in jail

before his sentencing. However, those days will be credited against the robbery

sentence—not the firearm specification sentence. See Moore, 154 Ohio St.3d 94, 2018-

Ohio-3237, 111 N.E.3d 1146, at ¶ 15.

{¶ 18} Because the trial court’s sentence is contrary to law, the state’s assignment

of error is well-taken.

III. Conclusion

{¶ 19} In sum, “[j]udges have no inherent power to create sentences. Rather, judges

are duty-bound to apply sentencing laws as they are written.” (Internal quotations and

citations omitted.) State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d

512, ¶ 10. In this case, that means that the trial court was duty-bound to impose a prison

term for both the firearm specification and the underlying robbery conviction. Because it

did not do so, we find that the portion of Culp’s sentence related to the robbery conviction

is clearly and convincingly contrary to law. We therefore vacate the portion of the sentence

imposed in the November 6, 2019 judgment of the Lucas County Court of Common Pleas

for Culp’s robbery conviction and remand the matter to the trial court for resentencing on

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that count only. The trial court’s sentences on the firearm specification and the weapons

under disability charge are affirmed. The parties are ordered to divide the costs of this

appeal equally pursuant to App.R. 24.

Judgment reversed, in part,
and affirmed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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