State v. Howard ( 2022 )

[Cite as State v. Howard, 2022-Ohio-3394.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 21CA0103
:
SAMANTHA HOWARD :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 20CR432
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 26, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CLIFFORD J. MURPHY STEPHEN T. WOLFE
ASSISTANT PROSECUTOR Wolfe Law Group, LLC
20 North Second St. 1350 W. 5th Ave., Suite 330
4th Floor Columbus, OH 43212
Newark, OH 43055
Licking County, Case No. 21CA0103 2
Delaney, J.
{¶1} Appellant Samantha Howard appeals from the November 12, 2021
Judgment of Conviction and Sentence of the Licking County Court of Common Pleas.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on May 2, 2020, when two police officers observed appellant
fail to properly signal when turning while operating her vehicle in the area of Spring
Street, Utica, Licking County.
{¶3} The officers executed a traffic stop and contacted appellant, the sole
occupant of the vehicle. Appellant acknowledged her operator’s license was suspended.
As they confirmed her license status, the officers noticed appellant place something under
the driver’s seat of the vehicle. A subsequent inventory search revealed a striped bag
containing several syringes loaded with an unknown black substance. The items were
sent to the crime lab for analysis and determined to be 0.147 grams of heroin.
{¶4} Appellant was charged by indictment with one count of drug possession
(heroin) pursuant to R.C. 2925.11(A)(C)(6)(a), a felony of the fifth degree. Appellant
opted to enter a plea of guilty as charged on or around November 12, 2021, and was
found to be TCAP-eligible. “TCAP” refers to the “Targeted Community Alternatives to
Prison” program and is described infra.
{¶5} The trial court imposed a prison term of 8 months and ordered appellant to
serve her sentence at the Licking County Justice Center pursuant to R.C. 2929.34(B).
{¶6} Appellant now appeals from the judgment entry of her conviction and
sentence.
Licking County, Case No. 21CA0103 3
{¶7} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶8} “THE TRIAL COURT ERRED WHEN IT IMPOSED AN EIGHT-MONTH
LOCAL JAIL SENTENCE.”
ANALYSIS
{¶9} In her sole assignment of error, appellant argues the trial court erred in
imposing a term longer than six months because she was required to serve the term in a
local jail facility. We disagree.
{¶10} We note we have addressed appellant’s argument in the context of a
conviction upon a fifth-degree felony, arising in Licking County, in State v. Highley, 5th
Dist. Licking No. 2019 CA 00086, 2019-Ohio-5177.
{¶11} R.C. 2929.34(B)(3)(c) governs TCAP and provides that on and after July 1,
2018, no person sentenced by the court of common pleas of a voluntary county to a prison
term for a felony of the fifth degree shall serve the prison term in an institution under the
control of the Ohio Department of Rehabilitation and Correction (“ODRC”), but shall
instead serve the sentence as a term of confinement in a local facility such as a county
jail or community-based correctional facility (“CBCF”). State v. Arthurs, 5th Dist. Licking
No. 21CA0002, 2021-Ohio-3296, ¶ 14, citing R.C. 2929.34(C) and (D).
{¶12} Pursuant to R.C. 2929.34(B)(3)(a), “[a]s used in divisions (B)(3)(a) to (d) of
this section, “voluntary county” means any county in which the board of county
commissioners of the county and the administrative judge of the general division of the
court of common pleas of the county enter into an agreement of the type described in
division (B)(3)(b) of this section and in which the agreement has not been terminated as
Licking County, Case No. 21CA0103 4
described in that division.” Licking County is a voluntary county. Highley, 2019-Ohio-
5177, ¶ 14.
{¶13} Appellant does not contest her eligibility as a TCAP offender. She argues
the trial court is limited to imposing a 6-month jail term pursuant to R.C. 2929.16(A)(2),1
an argument we also rejected in Highley, supra, at ¶ 15:
While appellant cites to R.C. 2929.16(A)(2) in arguing that a
court cannot impose a jail sentence that is more than six months,
such section allows a trial court to impose up to six (6) months in the
county jail for a violation of the terms of community control residential
sanctions. Appellant, in the case sub judice, was not sentenced to
residential community control sanctions and did not violate the terms
of the same. Such section is, therefore, not applicable.
1 R.C. 2929.16(A)(2) applies to community-control sanctions and states:
Except as provided in this division, the court imposing a sentence for
a felony upon an offender who is not required to serve a mandatory prison
term may impose any community residential sanction or combination of
community residential sanctions under this section. The court imposing a
sentence for a fourth degree felony OVI offense under division (G)(1) or (2)
of section 2929.13 of the Revised Code or for a third degree felony OVI
offense under division (G)(2) of that section may impose upon the offender,
in addition to the mandatory term of local incarceration or mandatory prison
term imposed under the applicable division, a community residential
sanction or combination of community residential sanctions under this
section, and the offender shall serve or satisfy the sanction or combination
of sanctions after the offender has served the mandatory term of local
incarceration or mandatory prison term required for the offense. Community
residential sanctions include, but are not limited to, the following:
* * * *.
(2) Except as otherwise provided in division (A)(3) or (6) of this section and
subject to division (D) of this section, a term of up to six months in a jail[.]
Licking County, Case No. 21CA0103 5
{¶14} Appellant was sentenced to term of eight months, a term within the
permissible range for a felony of the fifth degree. R.C. 2929.14(A)(5). Licking
County is a TCAP county; appellant is TCAP-eligible in the instant case; and she
was properly ordered to serve her sentence for a felony of the fifth degree in a
county jail. R.C. 2929.16 does not apply.
{¶15} We find that appellant was properly sentenced to eight months’
confinement in the Licking County Justice Center. Highley, supra. Appellant's sole
assignment of error is overruled.
CONCLUSION
{¶16} Appellant’s sole assignment of error is overruled and the judgment of the
Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, Earle, P.J. and
Gwin, J., concur.