State v. Mitchell , 141 Ohio App. 3d 770 ( 2001 )

JOURNAL ENTRY AND OPINION An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E).

Plaintiff-appellant State of Ohio appeals on the accelerated docket from the sentence imposed by the trial court on defendant-appellee Eugene Mitchell (Mitchell). For the reasons adduced below, we reverse and remand for re-sentencing.

A review of the record on appeal indicates that Mitchell was indicted on April 28, 1999, to one count of Escape in violation of R.C. 2921.34. On April 6, 2000, Mitchell pled guilty to an amended count of Attempted Escape in violation of R.C. 2923.02 and 2921.34, a felony of the fourth degree. Immediately following his plea of guilty, the trial court sentenced Mitchell to time served, which in Mitchell's case was thirty days. The State objected to this sentence.

The lone assignment of error states:

THE TRIAL COURT ERRED BY IMPOSING A SENTENCE OF TIME SERVED FOR A FELONY OF THE FOURTH DEGREE SINCE THE DEFENDANT HAD ONLY SERVED THIRTY DAYS, WHICH IS NOT ONE OF THE STATUTORY PENALTIES FOR A FELONY OF THE FOURTH DEGREE.

The trial court had two options available at the time of Mitchell's sentencing. First, a definite term of imprisonment pursuant to R.C.2929.14(A)(4). Or, second, place Mitchell under community control sanctions pursuant to R.C. 2929.13 to .18.

Community control sanctions, in general, are inapplicable to the facts of this case due to the absence of a predicate pre-sentence investigation report made prior to sentencing. See R.C. 2951.03(A)(1) and Crim.R. 32.2, which require a pre-sentence investigation report prior to imposing a community control sanction. Thus, the court's only viable option at the time of sentencing was a period of incarceration.

R.C. 2929.14(A)(4) unambiguously provides a mandatory definite prison term for a fourth degree felony:

(4) For a felony of the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. (Italicization added.)

The sentence imposed is clearly incompatible with the available terms under R.C. 2929.14(A)(4). Accordingly, the assignment is affirmed, the sentence vacated, and the matter remanded for re-sentencing. Prior to re-sentencing, the trial court may order the preparation of a pre-sentence investigation report and, at the time of sentencing, may then consider whether community control sanctions are applicable to the offense for which Mitchell was convicted, or the trial court may sentence Mitchell to a definite term pursuant to R.C. 2929.14(A)(4).

Judgment reversed and remanded.

This cause is reversed and remanded.

It is, therefore, considered that said appellant recover of said appellee its 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. Exceptions.

______________________________ JAMES D. SWEENEY, JUDGE

DIANE KARPINSKI, A.J., and COLLEEN CONWAY COONEY, J., CONCUR.