State v. Curry , 2021 Ohio 2746 ( 2021 )

[Cite as State v. Curry, 2021-Ohio-2746.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200254
TRIAL NO. B-1903181
Plaintiff-Appellee, :
vs. :
O P I N I O N.
ANDRE CURRY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: August 11, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Andre Curry appeals from the trial court’s
judgment revoking his community control and imposing a lifetime driver’s license
suspension. In a single assignment of error, Curry argues that his sentence was
contrary to law because the trial court failed to impose the license suspension as part
of his original sentence. The state concedes the error.
{¶2} Curry was indicted for failure to comply with an order or signal of a
police officer, in violation of R.C. 2921.331(B), a felony of the third degree under R.C.
2921.331(C)(5). He entered a guilty plea to a reduced charge of failure to comply, a
felony of the fourth degree under R.C. 2921.331(C)(4). A felony violation of R.C.
2921.331(B) carried a mandatory class two driver’s license suspension, for which the
trial court was required to impose a definite period of suspension of three years to
life. See R.C. 2921.331(E); R.C. 4510.02(A)(2).
{¶3} The trial court sentenced Curry to a three-year period of community
control, with the condition that he complete the River City treatment program and
aftercare. The trial court failed to impose the mandatory driver’s license suspension
required by R.C. 2921.331(E). Neither party appealed the sentence.
{¶4} A community-control violation was filed against Curry, alleging that he
refused the River City program’s intake interview. Curry pled guilty to the violation.
The trial court revoked community control and imposed an 18-month prison term
and a lifetime driver’s license suspension.
{¶5} As the state concedes, the court’s failure to include in its original
sentence and sentencing entry the statutorily mandated license suspension rendered
that part of the sentence voidable. See State v. Henderson, 161 Ohio St.3d 285,
2020-Ohio-4784, 162 N.E.3d 776, ¶ 1. In order to correct the error, it had to be
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OHIO FIRST DISTRICT COURT OF APPEALS
raised on direct appeal. See State v. Emanuel, 1st Dist. Hamilton No. C-190450,
2021-Ohio-448, ¶ 10. But neither party filed a direct appeal.
{¶6} Curry’s sentence on the failure-to-comply charge became final upon
the filing of the original sentencing entry and the trial court lacked authority to
modify the sentence by imposing the license suspension as part of its sentence for
Curry’s community-control violation. See State v. Carlisle, 131 Ohio St.3d 127, 2011-
Ohio-6553, 961 N.E.2d 671, ¶ 1 and 11.
{¶7} Consequently, we conclude that the license-suspension portion of
Curry’s sentence on the community-control violation was contrary to law. See R.C.
2953.08(G)(2). Accordingly, we sustain the assignment of error and modify the
judgment of the trial court to vacate the lifetime driver’s license suspension. The
judgment of the trial court is otherwise affirmed.
Affirmed as modified.
BERGERON and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
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