State v. Randa , 2011 Ohio 1535 ( 2011 )

[Cite as State v. Randa, 2011-Ohio-1535.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 10CA0015-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ZACHARY C. RANDA COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 09-CR-0382
DECISION AND JOURNAL ENTRY
Dated: March 31, 2011
MOORE, Judge.
{¶1} Appellant, Zachary C. Randa, appeals from the judgment of the Medina County
Court of Common Pleas. This Court affirms in part and vacates in part.
I.
{¶2} On September 16, 2009, the Medina County Grand Jury filed an indictment
charging Randa with a single count of burglary in violation of R.C. 2911.12(A)(1), a felony of
the second degree. On November 23, 2009, Randa changed his plea of “not guilty” to “no
contest.” The trial court made a finding of guilty. On January 4, 2010, the trial court sentenced
Randa to three years of incarceration, which it ordered to run concurrently with the sentence on
an unrelated case from Lorain County. In its journal entry, the court wrote that:
“The Court finds that the defendant has been convicted of ‘Burglary’, a violation
of Revised Code section 2911.12(A)(1), a felony of the second degree, subject to
a mandatory prison term under division (F) of section 2929.13 of the Ohio
Revised Code.”
2
{¶3} Randa timely filed a notice of appeal. He has raised one assignment of error for
our review.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED WHEN IT SENTENCED [RANDA] TO A
MANDATORY PRISON TERM UNDER DIVISION (F) OF SECTION 2929.13
OF THE OHIO REVISED CODE, FOR THE CONVICTION OF BURGLARY,
A VIOLATION OF REVISED CODE SECTION 2911.12(A)(1), A FELONY OF
THE SECOND DEGREE.”
{¶4} In his assignment of error, Randa contends that the trial court erred when it
sentenced him to a mandatory prison term pursuant to R.C. 2929.13(F) on his burglary
conviction. We agree.
{¶5} At the plea hearing, the trial court stated that “[t]his is not an offense for which
prison is mandatory, but it’s possible, and because it’s possible, I have to explain this to you.”
During the sentencing hearing, the trial court sentenced Randa to three years of incarceration but
made no mention of mandatory time. As noted above, however, the sentencing entry stated that
the prison sentence was a mandatory term.
{¶6} On appeal, Randa contends that R.C. 2929.13(F) does not apply to the
circumstances of this case. The State concedes, and we agree, that R.C. 2929.13(F) does not
require a mandatory prison sentence for a violation of R.C. 2911.12(A)(1). The sentence is
contrary to law. The offense of Burglary pursuant to R.C. 2911.12(A)(1) is a second degree
felony. The basic prison terms of the Revised Code provide as follows: “For a felony of the
second degree, the prison term shall be two, three, four, five, six, seven, or eight years.” R.C.
2929.14(A)(2). The trial court at the plea hearing correctly advised Randa that prison for the
3
offense of burglary was possible, but not mandatory. However, the sentencing entry mistakenly
described the three-year sentence as mandatory.
{¶7} We have said repeatedly that a court speaks through its journal entry. State v.
Ellington (1987), 36 Ohio App.3d 76, 77-78. Inasmuch as the trial court erred in imposing a
sentence not authorized by statute, the portion of the sentence that describes the sentence as
“mandatory” is hereby vacated. The remainder of the sentence shall stand.
III.
{¶8} Randa’s assignment of error is sustained in part. The portion of the sentence
referring to the three years of incarceration as mandatory is hereby vacated. The balance of the
sentence remains intact.
Judgment affirmed in part,
and vacated in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
4
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
DICKINSON, J.
BELFANCE, P. J.
CONCUR
APPEARANCES:
PAUL M. GRANT, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MICHAEL P. MCNAMARA, Assistant
Prosecuting Attorney, for Appellee.