State v. Moore

[Cite as State v. Moore, 2015-Ohio-3233.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102242
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY D. MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-586697-A
BEFORE: Kilbane, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: August 13, 2015
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Eric Foster
Daniel Van
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Gregory Moore (“Moore”), appeals from his sentence
for domestic violence. For the reasons set forth below, we affirm the judgment, but
remand for the issuance of a nunc pro tunc sentencing entry.
{¶2} In July 2014, Moore was charged with domestic violence, which carried a
furthermore specification listing two prior domestic violence convictions against the same
victim as the instant case. The charge arises from an incident where Moore pushed the
victim, his partner of 14 years, off her bed, punched her several times in the face and
head, choked her, and threatened to kill her with a baseball bat.
{¶3} Pursuant to a plea agreement, Moore pled guilty to an amended count of
domestic violence. The trial court nolled one of Moore’s prior convictions as listed in
the furthermore clause, thereby reducing the charge to a fourth-degree felony as opposed
to a third-degree felony. The matter proceeded to sentencing in October 2014. Prior to
imposing its sentence, the trial court stated that it took “into account the seriousness of the
situation and [Moore’s] conduct, and * * * the seriousness of [Moore’s] alcohol issues
and [his] other medical issues.” The court further stated that “[b]ased on the information
that I’ve listened to today * * *, I have decided not to put you in prison. It was a very
close case but you are going to spend 180 days in county jail * * * [with a] jail time credit
of 114 days[.]” The court also ordered that Moore be evaluated for treatment at a
community-based correctional facility (“CBCF”) for his substance abuse and anger
management issues. The court stated that Moore “will be, in effect, between [his] jail
time credit, the amount of time in jail and CBCF, approximately out of the community for
nine months to a year total time.” The court then ordered Moore to complete inpatient
treatment, if necessary, after completing treatment at the CBCF.
{¶4} The court journalized Moore’s sentence in an entry dated October 23, 2014.
In the entry, Moore is ordered to three years of community control sanction with the
following conditions: (1) 180 days in jail with 114 days of jail-time credit; (2) community
residential sanctions, under R.C. 2929.16(A)(1), with placement into the Judge Nancy R.
McDonnell CBCF; and (3) inpatient treatment, after completion at the CBCF, if
Treatment Alternatives to Street Crime (“TASC”) believes it is still necessary. If Moore
is not eligible for the program at CBCF, the court ordered that he be transferred to an
inpatient alcohol treatment facility when a bed is available.
{¶5} It is from this order that Moore appeals, raising the following single
assignment of error for review.
Assignment of Error
The trial court acted contrary to law in imposing an indefinite sentence of
commitment to a community based correctional facility.
{¶6} Moore argues the trial court erred when it imposed the sentence to the CBCF
without imposing a specific term. Under R.C. 2929.16(A)(1), the trial court may impose
community residential sanctions, which includes “[a] term of up to six months at a
community-based correctional facility that serves the county[.]” Because of the
six-month maximum term at the CBCF, Moore contends that any term that exceeds the
six-month period is contrary to law. He claims that without a specific number of days to
be spent at the CBCF, he could possibly be committed indefinitely. The state, on the
other hand, argues that trial court should not be required to impose a specific term at a
CBCF. It maintains that the staff at the CBCF should determine the length of a
defendant’s commitment to avoid early release or unnecessary treatment.
{¶7} By advising defendants of the maximum term allowed by law, the trial court
would comply with truth in sentencing procedures, which aim to eliminate indefinite
sentences in favor of specific terms to increase certainty and predictability in sentencing.
Woods v. Telb, 89 Ohio St.3d 504, 508, 2000-Ohio-171, 733 N.E.2d 1103. The General
Assembly has explicitly set forth the term in R.C. 2929.16(A)(1) as a period of up to six
months in a CBCF. Here, the trial court advised Moore he would be “in effect, between
[his] jail time credit, the amount of time in jail and CBCF, approximately out of the
community for nine months to a year total time.”
{¶8} While we appreciate the thoughtfulness of the trial court’s sentence and the
predicament of imposing an exact number of days to the CBCF, we nonetheless find the
court is required under R.C. 2929.16(A)(1) to advise Moore that he could serve “[a] term
of up to six months at a community-based correctional facility.” (Emphasis added.) Id.Therefore, we remand the matter for the limited purpose of issuing a nunc pro tunc entry
to correct the sentence in accordance with R.C. 2929.16(A)(1). See State v. Lester, 130
Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 17-20.
{¶9} Accordingly, judgment is affirmed. The matter is remanded for the issuance
of a nunc pro tunc sentencing entry in accordance with R.C. 2929.16(A)(1).
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR