[Cite as State v. Coleman, 2013-Ohio-1658.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 98557 and 98558



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                             MICHELLE R. COLEMAN
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                  AFFIRMED IN PART, REVERSED IN PART,
                   AND REMANDED FOR RESENTENCING



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                             Case Nos. CR-560544 and CR-555365

        BEFORE: E.T. Gallagher, J., Keough, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: April 25, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary Weston
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

         {¶1} Defendant-appellant Michelle R. Coleman (“Coleman”) appeals her prison

sentences. Finding some merit to the appeal, we affirm in part, reverse in part, and

remand the case to the trial court for resentencing.

         {¶2} This consolidated appeal involves two separate criminal cases. In Cuyahoga

C.P. No. CR-555365, Coleman pleaded guilty to burglary and grand theft. Both charges

were fourth-degree felonies. In Cuyahoga C.P. No. CR-560544, Coleman pleaded guilty

to breaking and entering and attempted theft. Both charges were fifth-degree felonies.

Pursuant to a plea agreement, Coleman agreed to pay restitution to the victims. The trial

court imposed concurrent 15-month prison terms on the fourth-degree felonies in

CR-555365, and concurrent 12-month prison terms on the fifth-degree felonies in

CR-560544. The court ordered Coleman to serve the two sentences consecutively for an

aggregate 27-month prison term. Coleman now appeals, raising three assignments of

error.

                                        Ambiguity

         {¶3} In her first assignment of error, Coleman argues the trial court erroneously

construed R.C. 2929.13(B)(1)(a)(i) when it imposed prison sentences instead of

community control sanctions. In her second assignment of error, she argues her sentence

is contrary to law because it violates R.C. 2929.13(B)(1)(a). We discuss these assigned

errors together because they are interrelated.
       {¶4} R.C. 2929.13(B)(1)(a) provides:

       Except as provided in division (B)(1)(b) of this section, if an offender is
       convicted of or pleads guilty to a felony of the fourth or fifth degree that is
       not an offense of violence, the court shall sentence the offender to a
       community control sanction of at least one year’s duration if all of the
       following apply:

       (i) The offender previously has not been convicted of or pleaded guilty to a
       felony offense or to an offense of violence that is a misdemeanor and that
       the offender committed within two years prior to the offense for which
       sentence is being imposed.

       (ii) The most serious charge against the offender at the time of sentencing is
       a felony of the fourth or fifth degree.

       (iii) If the court made a request of the department of rehabilitation and
       correction pursuant to division (B)(1)(c) of this section, the department,
       within the forty-five-day period specified in that division, provided the
       court with the names of, contact information for, and program details of one
       or more community control sanctions of at least one year’s duration that are
       available for persons sentenced by the court.

       {¶5} R.C. 2929.13(B)(1)(a) creates a presumption in favor of community control

sanctions for crimes meeting certain criteria.      State v. Lyles, 8th Dist. No. 97524,

2012-Ohio-3362, ¶ 10. It is undisputed that Coleman’s crimes were not violent and

involved fourth- and fifth-degree felonies.

       {¶6} Coleman argues that it is unclear whether the two-year time limitation

contained in subsection (i) applies to fourth- and fifth-degree felonies, or whether it

applies solely to violent misdemeanors.1 The state contends the two-year time limitation

applies only to violent misdemeanors. Under the state’s interpretation, if a defendant has


       We note that this case was heard for argument prior to Am.Sub.S.B. 160
       1

becoming enacted.
been convicted of a felony offense at any time, then subsection (i) cannot be satisfied and

the court may impose a prison sentence. However, if the two-year time limitation applies

to felony convictions, all the criteria necessary for mandatory community control

sanctions would be satisfied because Coleman’s prior felony convictions occurred over

two years prior to sentencing.

       {¶7} Coleman further argues that because R.C. 2929.13(B)(1)(a)(i) is ambiguous,

we must construe the language in her favor and against the state. Indeed, the rule of

lenity, which is a principle of statutory construction, provides that a court will not

interpret a criminal statute so as to increase the penalty it imposes on a defendant if the

intended scope of the statute is ambiguous.       State v. Elmore, 122 Ohio St.3d 472,

2009-Ohio-3478, 912 N.E.2d 582, ¶ 38, citing Moskal v. United States, 498 U.S. 103,

107-108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990).

       {¶8} This court has previously determined that the two-year time limitation

contained in R.C. 2929.13(B)(1)(a)(i) applies to fourth- and fifth-degree felonies. State

v. Johnson, 8th Dist. No. 98245, 2013-Ohio-575, ¶ 60. However, the facts presented

here differ from Johnson because Johnson only involved one criminal case whereas the

instant case involves a consolidated appeal of two separate cases. Coleman was not

convicted of a felony or violent misdemeanor within the two years prior to sentencing in

CR-555365.     Therefore, R.C. 2929.13(B)(1)(a) required the trial court to impose

community control sanctions in lieu of prison on the case with the lower case number,

i.e., CR-555365.
       {¶9} Coleman cannot satisfy the two-year time limitation in the second case,

CR-560544, because she was convicted of two fourth-degree felonies in CR-555365.

Therefore, the twelve-month sentences on the two fifth-degree felonies in CR-560544 do

not violate R.C. 2929.13(B)(1)(a)(i).

       {¶10} Accordingly, we sustain in part and overrule in part the first and second

assignments of error.

       {¶11} Having determined that the prison sentence imposed in CR-555365 was

contrary to law, we find the third assignment of error, which challenges the court’s

statutory findings for the imposition of consecutive sentences, moot.

       {¶12} Judgment is affirmed in part and reversed in part. The case is remanded to

the trial court for resentencing to impose community control sanctions in CR-555365.

       It is ordered that appellant and appellee 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.



EILEEN T. GALLAGHER, JUDGE

KATHLEEN A. KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
