State v. Livingston , 2014 Ohio 1637 ( 2014 )

[Cite as State v. Livingston, 2014-Ohio-1637.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130160
TRIAL NO. B-1205662
Plaintiff-Appellee, :
O P I N I O N.
vs. :
NATHANIEL LIVINGSTON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: April 18, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bruce K. Hust, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Ohio law provides that prison authorities may award eligible offenders
one or five days of credit toward the satisfaction of their prison terms for participating in
approved prison programs. R.C. 2967.193. In this appeal, we are confronted with the
question of whether a trial court may, as part of its sentence, limit a defendant’s
eligibility to earn such credit. We conclude that it may not.
I.
{¶2} Nathaniel Livingston entered agreed pleas of guilty to two counts of
aggravated robbery with a gun specification. Consistent with the plea agreement, the
trial court sentenced him to one year of incarceration for the gun specification, followed
by concurrent three-year terms for the aggravated robberies, for a total sentence of four
years. The trial court stated on the record that Mr. Livingston would be ineligible for
earned credit and other sentence-reduction programs in prison, and inserted the
following language into its judgment entry: “Pursuant to a plea agreement between the
parties, the defendant herein is not eligible for risk reduction, intensive prison
programs, earned days of credit, transitional control, judicial release, or any other early
release program and is to serve this sentence in its entirety.” It is undisputed that Mr.
Livingston agreed to these terms as a condition of his four-year sentence.
{¶3} On appeal, Mr. Livingston contends that the trial court lacked authority
to limit his eligibility for earned days of credit under R.C. 2967.193.
II.
{¶4} Appellate review of a sentence imposed pursuant to a plea agreement is
governed by R.C. 2953.08(D)(1). That section provides that where the trial court
imposes a sentence jointly recommended by the defendant and the state, that sentence
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OHIO FIRST DISTRICT COURT OF APPEALS
is subject to review only if it is not authorized by law. See State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 14-16. Therefore, we may only review the
earned-credit portion of Mr. Livingston’s sentence if it is unauthorized by law.
{¶5} The earned-credit program is governed by R.C. 2967.193, which
provides that
a person confined in a state correctional institution may provisionally
earn one day or five days of credit * * * toward satisfaction of the person’s
stated prison term for each completed month during which the person
productively participates in an education program, vocational training,
employment in prison industries, treatment for substance abuse, or any
other constructive program developed by the department [of
rehabilitation and correction].
R.C. 2967.193(A)(1).
{¶6} “The General Assembly is vested with the power to define, classify,
and prescribe punishment for offenses committed in Ohio.” State v.
Taylor, __Ohio St.3d__, 2014-Ohio-460, __N.E.2d__, ¶ 12. “Judges have no
inherent power to create sentences. * * * ‘[T]he only sentence which a trial court may
impose is that provided for by statute.’ ” Id. at ¶ 18, citing State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, and Colegrove v. Burns, 175 Ohio St.
437, 438, 195 N.E.2d 811 (1964). Thus, where a court imposes a sentence that no
statute instructs or permits it to impose, that sentence is not authorized by law. See,
e.g., State v. Vaughn, 7th Dist. Carroll No. 683, 2002-Ohio-5046, ¶ 23-25 (because
the sentencing statutes “contain no provision authorizing a trial court to include
solitary confinement as part of its sentence,” such a sentence is “not authorized by
the legislature”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Under R.C. 2967.193, the department of rehabilitation and correction is
charged with determining the amount of credit earned and awarding that credit to the
prisoner. Likewise, the statute authorizes the department to deny the prisoner the right
to earn credit or withdraw credits previously earned if it determines the prisoner has
violated prison rules. While R.C. 2967.193 identifies which offenders are eligible for
earned credit based on their crimes of incarceration, it does not provide the judiciary a
role in determining that eligibility.
{¶8} When the legislature has meant for the judiciary to have the discretion to
deny eligibility for prison programs, it has made its intent clear. Indeed, when
establishing other prison programs and forms of early release, the General Assembly has
expressly conferred authority upon the judiciary to allow or disallow an offender’s
participation. For instance, courts have been granted authority to declare a prisoner
ineligible for placement in an “intensive program prison.” R.C. 5120.032(B)(1)(a) (“If
the sentencing court disapproves placement of the prisoner in an intensive program
prison, the department shall not place the prisoner in any intensive program
prison”). Similarly, trial courts have the power to reduce an offender’s nonmandatory
prison term through “judicial release.” R.C. 2929.20. And the legislature has authorized
courts to “disapprove” the transfer of an inmate to a “transitional control” program.
R.C. 2967.26.
{¶9} In contrast, there is nothing in R.C. 2967.193 or elsewhere in the law that
authorizes a court to limit an offender’s ability to earn days of credit. Because the trial
court lacked authority to impose the sentence it imposed, we sustain Mr. Livingston’s
sole assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
III.
{¶10} The portion of the sentence prohibiting Mr. Livingston from earning
days of credit in prison was not authorized by law, so we vacate that portion of his
sentence and remand this matter to the trial court for the limited purpose of correcting
the judgment entry. We affirm the trial court’s judgment in all other respects.
Judgment affirmed in part, sentence vacated in part, and cause remanded.
C UNNINGHAM , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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