COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69551/69552/69553 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TRAMELL PATTERSON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 27, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case Nos. CR-319,888/ : CR-316,157/CR-307,315 JUDGMENT : VACATED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARK MAHONEY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender DONALD GREEN, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Tramell Patterson was charged in three indictments by a Cuyahoga County Grand Jury. On July 12, 1995, dyefendant Patterson pled guilty to one count of drug trafficking in violation of R.C. 2925.03 in each of his three cases. In exchange for defendant's guilty pleas, each of the other counts in his three indictments was dismissed. On August 7, 1995, the trial judge sentenced Patterson to a one-year term of incarceration pursuant to R.C. 2929.11, consecutive to a one-and-one-half-year actual incarceration on each case, as required by R.C. Chap. 2325. Two of the imposed sentences were to run consecutively, and the third sentence was ordered to run concurrent to the first two. The sentences were journalized on August 14 and 15, 1995. This consolidated appeal timely followed. For the reasons adduced below, we find the arguments pres- ented by the appellant well taken. Appellant raises the following sole assignment of error for our review: THE IMPOSITION OF A TERM OF ACTUAL INCARCERA- TION TO BE SERVED CONSECUTIVE TO A DEFINITE TERM FOR A CONVICTION OF AGGRAVATED TRAFFICK- ING IS IMPERMISSIBLE AS IT EXCEEDS THE STATU- TORILY PERMISSIBLE SENTENCE FOR THE CRIME. - 3 - Appellant contends that the sentence imposed by the trial court is impermissible as it will require him to serve more time than statutorily permissible pursuant to R.C. Chap. 2911. We agree. Appellant pled guilty to three charges of R.C. 2925.03(A)(4). Each charge is a felony of the third degree pursuant to R.C. 2925.03(C)(4). In pertinent part, R.C. 2925.03(C)(4) states: Where the offender has violated division (A)(4) of this section, aggravated trafficking is a felony of the third degree, and the court shall impose a sentence of actual incarceration of eighteen months ***. The court was, therefore, required to impose a statutory actual sentence upon the appellant. Actual incarceration pursuant to R.C. 2929.01(C) means "*** that an offender is required to be imprisoned for the stated period of time to which he is sentenced that is specified as a term of actual incarceration. If a person is sentenced to a term of actual incarceration, the court shall not suspend his term of actual incarceration, and shall not grant him probation or shock probation ***." Further, for a felony of the third degree, R.C. 2929.11(D)(1) provides that the term of the penalty "*** shall be one, one and one-half or two years." Accordingly, for a felony of the third degree, the maximum penalty permitted by the statute shall be two years. - 4 - Appellant was sentenced on each charge to a term of eighteen months actual incarceration without possibility of suspension, probation or shock probation pursuant to R.C. 2925.03(C)(4) and, in addition, to a one-year definite sentence pursuant to R.C. 2929.11(D)(1). The court ordered the definite term of one year to be served consecutively to the term of actual incarceration. Therefore, on each charge, the appellant received a sentence of two and one-half years, six months more than permissible maximum sentence allowed by the sentencing statutory limit of R.C. 2929.11. "[T]he courts have held that the proper ambit of appellate review is limited to ensuring that the trial court did not exceed the sentencing authority which the general assembly has permitted the judiciary." State v. Moss (1982), 69 Ohio St.2d 515, 518. The general assembly has authorized the trial courts, in R.C. Chap. 2925, to impose "actual time" to be served without suspension or probation. Further, the general assembly has authorized the statutory limitations in sentencing of the trial courts in R.C. Chap. 2929. At the sentencing of the appellant, the colloquy of the lower court implied that the court read decisional law of this state to allow the "enhancement" statutory time required by R.C. Chap. 2325 to be imposed consecutively to the felony sentencing statutory time of R.C. 2929.11, even where such sentencing would abrogate the - 5 - maximum time limitations allowed by the felony sentencing statute. We find this conclusion to be in error. "Crimes are statutory, as are the penalties therefor, and the only sentence which a trial court may impose is that provided by statute. A court has no power to substitute a different sentence for that provided by statute or one that is either greater or lesser than that provided for by law." Colegrove v. Burns (1964), 175 Ohio St. 437, at 438. An attempt to disregard statutory re- quirements when imposing a sentence renders the sentence the null or void. State v. Beasley (1984), 14 Ohio St.3d 74. A sentencing order under the Revised Code guidelines and pursuant to State v. Arnold (1991), 61 Ohio St.3d 175 must take into consideration both the sentencing scheme mandates under R.C. 2929.11 and R.C. 2925.03. State v. Herring (July 28, 1994), Cuyahoga App. No. 65815, unreported; State v. Jenkins (Apr. 27, 1995), Cuyahoga App. No. 66925, unreported. The state relies on the line of cases following State v. Arnold, supra, as representing the appropriate analysis of the sentencing parameters allowed to the trial courts. The state contends that there is no reason why this court should alter the analysis when the defendant faces a definite sentence as opposed to an indefinite sentence. However, we see the difference as significant. In no case cited by the state did the consecutive sentence imposed require the defendant to serve more than the maximum allowable term of incarceration within the statutory - 6 - mandates of the indefinite sentencing statute. The state cites case after case where the courts have permitted the imposition of the actual sentence to run consecutively to the indefinite sen- tence. We agree that the case law before us indicates that the actual time of R.C. 2925.03 may be run either consecutively or concurrently to the indefinite sentence imposed upon a criminal defendant pursuant to R.C. 2929.11 following the holding of State v. Arnold, supra. However, we find these cases to be distinguish- able from the matter sub judice. The cases which have allowed consecutive sentences to be imposed upon defendants have each involved sentences imposing an actual term of incarceration as required under R.C. 2925.03 with an indefinite term on the underlying felony pursuant to R.C. 2929.11. In our review, we found only one case which involved the imposition of an actual sentence to run consecutive to a definite sentence, State v. Jenkins, supra. Jenkins complained that the imposition of consecutive sentences for actual time pursuant to R.C. Chap. 2925 and definite time pursuant to R.C. Chap. 2911 did not conform to the standards established by the Ohio Revised Code. Upon review, our court determined that the trial judge improperly relied on the State v. Odubanjo (1992), 80 Ohio App.3d 329 as requiring consecutive sentences when it sentenced Jenkins and, therefore, remanded for resentencing. In Jenkins, our court did not address the issue which appellant places before us today -- whether the - 7 - court improperly sentenced him beyond the maximum statutory limits of R.C. 2929.11. Following the directive in State v. Arnold, supra, the sen- tences required by R.C. 2929.11 and R.C.2925.03 are to be jointly imposed. In State v. Fittro (1993), 66 Ohio St.3d 16, Justice Wright wrote in his dissent: R.C. 2925.03 sets the required term of actual incarceration and the degree of the offense. R.C. 2929.11 contains the minimum and maximum terms of the indefinite sentence which may be imposed. Therefore, any sentence for an R.C. 2925.03 violation is a combination of the terms of incarceration contained in R.C. 2925.03 and 2929.11. We concur with the reasoning of Justice Wright and the con- clusion which he reached regarding the combination of the statu- tory terms. We do not read the line of cases before us as permis- sion for the trial court to sentence a defendant to a term of incarceration beyond the statutory limits of R.C. 2929.11. No case before us stands for that proposition. Where, as here, the consecutive sentences, when imposed by the court, reach beyond the statutory limitations of R.C. 2929.11, then the court has not followed the directive of State v. Arnold, which stated that the "language of the two statutes indicates not that they conflict, but that the legislature intended both to apply." Id. at 178. Our decision today is both consistent with and may be harmo- nized with the decisional law of our district and state. The "actual time" may be run either consecutively or concurrently - 8 - whether the underlying sentence is indefinite or definite. The general assembly has not granted authority to the court to impose a sentence beyond the maximum sentence allowed by the sentencing statute, R.C. 2929.11, and we do not see the decisional law as mandating such an abrogation of the maximum limitations which defendants of our state shall serve in prison. Accordingly, the appellant's sole assignment of error is well taken. The sentence imposed by the trial court is vacated, and this matter is remanded for sentencing consistent with our opinion. - 9 - The decision of the lower court is hereby vacated and the cause remanded to the lower court for further proceedings consis- tent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, C.J. and DAVID T. MATIA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .