COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71698 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) DAVID GUNDIC ) ) Defendant-Appellant ) Date of Announcement of Decision NOVEMBER 13, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-339320 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES ROBERT A. DIXON, ESQ. Cuyahoga County Prosecutor 1280 West Third Street MARTINA KULICK, Assistant Suite 100 Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 2 JAMES M. PORTER, J.: Defendant-appellant David Gundic appeals from his conviction following a bench trial for having a weapon while under disability with firearm and violence specifications (R.C. 2923.13/2941.141). He was sentenced to three years actual incarceration on the firearm specification, consecutive to one and one-half to five years on the principal crime of having a weapon while under disability. On this delayed appeal, defendant contends the trial court erred in imposing a three year firearm specification sentence where his only prior conviction was for carrying a concealed weapon. We find no error and affirm. Defendant was indicted on June 4, 1996 for one count of felonious assault against a police officer (R.C. 2903.11) and one count of having a weapon while under disability (R.C. 2923.13), both with violence and firearm specifications. The matter proceeded to a bench trial where evidence was introduced that defendant engaged in a high speed chase with police officers who were trying to stop him for a traffic offense. Apparently, defendant jumped from the vehicle while it was still moving and pointed a handgun at one of the officers. Defendant took the stand and admitted that he engaged in a high speed chase with the officers but denied ever pointing a gun at one of the officers. He admitted that he had prior convictions for aggravated vehicular assault and attempted carrying of a concealed weapon. The court found Gundic not guilty of felonious assault, but guilty of having a weapon while under disability and found that 3 both violence and firearm specifications were established. The court sentenced defendant to three years actual incarceration for the firearm specification to be served consecutively to one and one-half to five years on the weapons disability charge. Defendant's sole assignment of error states: I. THE LOWER COURT ERRED AND DENIED THE APPELLANT DUE PROCESS AND EQUAL PROTECTION OF LAW BY IMPOSING A THREE YEAR GUN SPECIFICATION SENTENCE FOR HAVING A WEAPON WHILE UNDER DISABILITY WHERE THE ONLY UNDERLYING DISABILITY WAS A PRIOR CONVICTION FOR CARRYING A CONCEALED WEAPON. Defendant argues that the court's sentence of three years actual incarceration for the firearm specification, underlying his conviction for having a weapon while under disability, violated his due process and equal protection rights. He contends that former R.C. 2951.02(G), which applied when he was sentenced, allowed for shock probation for a second conviction for carrying a concealed weapon. This assignment of error has no merit. Former R.C. 2951.02(G) stated in pertinent part: An offender who is convicted of or pleads guilty to a violation of section 2923.12 of the Revised Code [carrying a concealed weapon] in which the weapon involved was a firearm or dangerous ordnance as defined in section 2923.11 of the Revised Code, and who previously has been convicted of or pleaded guilty to a violation of section 2923.12 of the Revised Code in which the weapon involved was a firearm or dangerous ordnance as defined in section 2923.11 of the Revised Code, shall not otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code, except that the offender may be placed on probation pursuant to section 2947.061 of the Revised Code. (Emphasis added). 4 Defendant was found guilty of having a weapon while under disability pursuant to R.C. 2923.13. The underlying disability was defendant's prior conviction for attempted carrying of a concealed weapon. Therefore, although he did have a prior conviction for attempted carrying of a concealed weapon, his second conviction was not for carrying a concealed weapon, but for having a weapon while under disability. This offense is different then carrying a concealed weapon and, in fact, the two are not even crimes of similar import. State v. Rice (1982), 69 Ohio St.2d 422, syllabus; State v. Broadus (1984), 14 Ohio App.3d 443, 444; State v. Carroll (June 10, 1993), Cuyahoga App. No. 62747, unreported at 2; State v. Smith(August 29, 1991), Cuyahoga App. No. 58918, unreported at 9- 10. Therefore, R.C. 2951.02(G), which states that shock probation may be ordered for a second carrying a concealed weapon offense, is not applicable here. This is consistent with the other parts of the Revised Code. Pursuant to R.C. 2951.02(F)(3), an offender is not eligible for probation if he is convicted of an offense which contains a firearm specification. State v. Bistarkey (1996), 75 Ohio St.3d 7, 9. If an offender is not eligible for probation under R.C. 2951.02, he cannot receive shock probation under R.C. 2945.061. Id. at syllabus. It is not possible to have a firearm specification pursuant to R.C. 2929.71 with a carrying a concealed weapon charge. R.C. 2929.71 states in pertinent part: (A) The court shall impose a term of actual incarceration of three years in addition to 5 *** an indefinite term of imprisonment pursuant to R.C. 2929.11 of the Revised Code, if all the following apply: (1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code. [Carrying a Concealed Weapon] ***. See, also, State v. Broadus, supra, at 445 (enhanced penalty provision of R.C. 2929.71 applies to violations of R.C. 2929.13 but not to violations of R.C. 2929.12). Therefore, since the offense of carrying a concealed weapon is exempted from the firearm specification enhancement provision, shock probation is possible pursuant to R.C. 2947.061 for defendants who plead or are convicted of carrying a concealed weapon, even if it is the second time the offense was committed. Defendant, however, was convicted of having a weapon while under disability which is not exempted from the firearm specificationenhancement provision. He is therefore not eligible for shock probation and the trial court's sentencing him to the mandatory three years actual incarceration did not violate R.C. 2951.02(G). Defendant's sole assignment of error is overruled. Judgment affirmed. 6 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C.J., and KARPINSKI, J., CONCUR. JAMES M. PORTER JUDGE 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 .