COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73974 STATE OF OHIO : : : Plaintiff-Appellee : : ACCELERATED DOCKET : -vs- : JOURNAL ENTRY : AND : OPINION TIMMY WEBB : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 19, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. 350571 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Dominic Delbalso, Esq. Assistant Prosecutor 1200 Ontario Street 8th floor Justice Center Cleveland, Ohio 44113 For defendant-appellant: Donald G. Riemer, Esq. 55 Public Square Suite 1600 Cleveland, Ohio 44113 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the -2- Cuyahoga County Court of Common Pleas and the briefs of counsel. Timmy Webb, defendant-appellant, appeals from his sentence in the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-350571, on the offense of involuntary manslaughter with a firearm specification. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is well taken. On May 8, 1997, the Cuyahoga County Grand Jury returned a single count indictment charging defendant-appellant with murder, in violation of R.C. 2903.02, with an attendant firearm specification. The indictment arose out of an incident that occurred on April 23, 1997 in which defendant-appellant, while drinking, accidentally shot and killed Rick James Runyan. On June 2, 1997, defendant-appellant was arraigned whereupon a plea of not guilty was entered to the indictment. On December 1, 1997, defendant-appellant withdrew his formerly entered plea of not guilty and entered a plea of guilty to the amended charge of involuntary manslaughter, in violation of R.C. 2903.04, with the firearm specification. In this case, involuntary manslaughter is a third degree felony with a possible sentence of one (1) to five (5) years in prison. The firearm specification calls for a mandatory sentence of one (1) year. At the outset, the matters plead to are non-probationable. Pursuant to S.B. 2, the substantive charge of involuntary manslaughter may become probationable and therefore eligible for community control sanction only after the mandatory prison sentence has been served. -3- On January 15, 1998, the trial court sentenced defendant- appellant to one year in prison on the gun specification, to be served prior to and consecutive with a one year definite sentence on the charge of involuntary manslaughter. The trial court then suspended the sentence on the offense of involuntary manslaughter and ordered that defendant-appellant be returned to the Cuyahoga County Jail upon completion of the one year sentence on the firearm specification. At that time, defendant-appellant would be placed on five years Community Control Sanctions and serve two consecutive six (6) month sentences in the Cuyahoga County Jail. On February 12, 1998, defendant-appellant filed a timely notice of appeal from the sentence imposed by the trial court. Defendant-appellant's sole assignment of error on appeal states: THE TRIAL COURT ACTED CONTRARY TO LAW BY SENTENCING THE DEFENDANT-APPELLANT TO TWO (2) CONSECUTIVE 6 MONTH SENTENCES IN A COMMUNITY-BASED CORRECTIONAL FACILITY AS A COMMUNITY CONTROL SANCTION. Defendant-appellant argues, through his sole assignment of error, that the trial court improperly sentenced him to two consecutive six month sentences in the Cuyahoga County Jail on his conviction of the offense of involuntary manslaughter, in this instance, a felony of the third degree. Specifically, defendant- appellant maintains that the trial court had only two sentencing options in this case: (1) to have imposed a sentence involving some form of Community Control Sanctions pursuant to R.C. 2929.15 which could not involve defendant-appellant being sentenced to a community based correctional facility; or (2) to have simply -4- imposed a one, two, three, four, or five year sentence to be served at the Lorain Correctional Institution on the offense of involuntary manslaughter. The state maintains that the trial court's sentence was proper pursuant to R.C. 2929.16(A)(2). We disagree with both positions. R.C. 2903.04(B), Ohio's involuntary manslaughter statute, provides in pertinent part: (B) No person shall cause the death of another or unlawful termination of another's pregnancy as a proximate result of the offender's committing or attempting to commit a misdemeanor of the first, second, third, of fourth degree or a minor misdemeanor. The statute states further: (C) Whoever violates this section is guilty of involuntary manslaughter. Violation of division (A) of this section is a felony of the first degree. Violation of division (B) of this section is a felony of the third degree. In this case, it is undisputed that defendant-appellant was convicted of R.C. 2904.03(B), a felony of the third degree. R.C. 2929.14(A)(3)provides that the sentence for a third degree felony alone is a term of one, two, three, four or five years in prison. The trial court would be permitted to suspend the sentence on a third degree felony standing alone without the firearm specificationand place a defendant on Community Control Sanctions for a period not to exceed five years. See R.C. 2929.15. As part of Community Control Sanctions, the trial court may sentence a defendant to a term of six months in a community based correctional -5- facility where a mandatory prison term is not required. R.C. 2929.16.1 In this matter, the firearm specification coupled with the substantive charge of involuntary manslaughter mandates a prison term. R.C. 2929.15(A)(1) states If in sentencing an offender for a felony, the court is not required to impose a prison term, a mandatory prison term, *** the court may directly impose a sentence that consists of one or more community control sanctions ***. In this case, the court was required to impose a mandatory sentence of one (1) year on the firearm specification and, therefore, could not directly impose a community control sanction. R.C. 2929.221, which mandates the type of facility where a term of imprisonment is to be served, provides in pertinent part: (B)(1) A person who is convicted of or pleads guilty to a felony other than aggravated murder, murder, or an offense punishable by life imprisonment and who is sentenced to a term of imprisonment pursuant to that conviction shall serve that term of imprisonment as follows: (a) Subject to divisions (B)(1)(b) and (B)(2) of this section, in an institution under the control of the department of rehabilitation and correction if the term of imprisonment is a prison term or shall serve it as otherwise determined by the sentencing court pursuant to section 2929.16 of the Revised Code if the term is not a prison term. In this case, defendant-appellant entered a plea of guilty to involuntary manslaughter,as amended, a felony of the third degree. The trial court sentenced defendant-appellant to a term of one year imprisonment. The court then suspended the sentence and placed 1Cuyahoga County does not have a C.B.C.F. available for sentencing at the present time. -6- defendant-appellant on five years Community Control Sanctions and ordered h sentences in the Cuyahoga County Jail upon completion of the prison sentence on the firearm specification effectively placing def rdefendant-appel sentence on the involuntary manslaughter conviction. Since defendant-appellant was convicted of a third degree felony coupled with a firearm specification for which a prison term is mandated, the trial court is not permitted to sentence defendant-appellant to serve that sentence in a local institution pursuant to R.C. 2929.221. Accordingly, defendant-appellant's sole assignment of error is well taken. The court may sentence defendant-appellant on the substantive charge of involuntary manslaughter to one, two, three, four, or five years at a state institution consecutive to the sentence for the firearm specification. After the mandatory time on the firearm is served, the trial court may entertain a judicial release request and thereafter impose community control sanctions available to the court including but not limited to local county jail time and any other conditions authorized by statute.2 Judgment of the trial court is hereby reversed and remanded for re-sentencing on the involuntary manslaughter conviction 2Although involuntary manslaughter standing alone may be probationable, in this instance it is not until defendant-appellant has completed the mandatory aspect of his sentence. See R.C. 2929. The firearm specification standing alone allows for no sentence. It is viable only in concert with the manslaughter conviction. In this examination, the review must be as to a combination of both. -7- consistent with this opinion. The sentence on the firearm conviction remains in full force and effect. -8- 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 Cuyahoga County Common Pleas 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. JOSEPH J. NAHRA, PRESIDING JUDGE AND MICHAEL J. CORRIGAN, JUDGE, CONCUR; DIANE KARPINSKI, JUDGE, CONCURS IN JUDGMENT ONLY, WITH CONCURRING OPINION ATTACHED. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73974 STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION TIMMY WEBB : : : Defendant-Appellant : DATE: KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I concur in the judgment of the majority that reverses the sentence imposed by the trial court in this case. I write separately, however, because the majority fails to adequately address the central issue. As a result, it erroneously precludes the trial court on remand from imposing community control sanctions on the underlying felony in this case. The issue, as framed by the majority, is whether community control sanctions may be imposed for an underlying felony when a mandatory prison sentence is required for an accompanying firearm specification. There are conflicting views on this issue. Griffin and Katz, Ohio Felony Sentencing Law (1990 ed.) Section 5.11 at pp. 400-402. The majority adopts the position that a trial court is prohibited at the time of sentencing from imposing community -10- control sanctions on the underlying felony. It does not discuss the alternative perspective, which I believe represents the more reasoned view. Ohio Felony Sentencing Law, supra, summarizes this alternative view as follows: In some cases, mandatory prison terms do not preclude the possibility of also imposing community control sanctions. RC 2929.13(F)(6) [now(F)(7)], the section making prison mandatory for possessing a firearm in a crime, creates the possibility for joining a community control sanction with a mandatory prison term. Such a combination of sanctions was not possible under prior law because all felonies, except violations of RC 2923.12, were nonprobationable under former RC 2951.02(F)(3) if committed while armed with a firearm. RC 2951.02(F)(3) in prior law is no longer applicable to felonies and, instead, RC 2929.13(F)(6) [now (F)(7)] *** provides that a prison sentence is mandatory for: [a]ny offense, other than a violation of section 2923.12 of the Revised Code, 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 (D)(1)(a) of section 2929.14 of the Revised Code for having a firearm. Id. at pp. 400-401 (Emphasis in original). In other words, the emphasized language makes a prison sentence mandatory only for the firearm specification, but not for the underlying felony. The majority contends that R.C. 2929.15(A)(1) precludes at the time of sentencing imposing community control sanctions for an underlying felony when there is an accompanying firearm -11- specification.3 (Ante at pp. 5-6.) However, this argument fails to consider the effect of R.C. 2929.13(F)(7) when construing this latter provision. R.C. 2929.15(A)(1) specifically provides, in pertinent part, as follows: If in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code. (Emphasis added.) Because R.C. 2929.13(F)(7) specifically provides that the trial court is not required to impose a prison term or a mandatory prison term for the underlying felony, the trial court may impose community control sanctions for the felony. The majority does not cite any other provision of the felony sentencing statutes which prohibits imposing community control sanctions for the underlying felony in this case. R.C. 2929.19(B)(5) governs the sentencing hearing and provides as follows: If the sentencing court determines at a sentencing hearing that a community control sanction should be imposed and the court is not prohibited from imposing a community control sanction, the court shall impose a community control sanction. Although the majority has offered a plausible construction of R.C. 2929.15(A)(1), its argument is ultimately unpersuasive. The section, read in pari materia with R.C. 2929.13(F)(7), is 3 Even if the majority's argument were correct, the defendant would be eligible for early judicial release after he served his mandatory prison term for the firearm conviction. Ohio Felony Sentencing Law, supra Section 5.11 at p. 401. -12- ambiguous. Under such circumstances it is well established that [s]ections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally in favor of the accused. R.C. 2901.04(A). By virtue of this provision, R.C. 2929.13(F)(7) overrides any provision of the new felony sentencing statues that would mandate imposing a prison sentence on an underlying felony solely because of an accompanying firearm specification. I concur in the judgment of the majority reversing the trial court's judgment because the community control sanction imposed on the underlying felony in this case was beyond the scope of R.C. 2929.16. R.C. 2929.16(A)(2) permits, with certain qualifications, the trial court to impose a community residential sanction for [a] term of up to six months in jail. The trial court in this case imposed two consecutive six-month sentences in jail. Although R.C. 2929.16 permits a trial court to impose a combination of community residential sanctions, I do not believe it was intended .