[Cite as State v. Davis, 2018-Ohio-4095.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                        Hon. Patricia A. Delaney, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. CT2018-0024
STEPHANIE L. DAVIS

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County
                                               Common Pleas Court, Case No.
                                               CR2016-0324


JUDGMENT:                                      Dismissed

DATE OF JUDGMENT ENTRY:                         October 9, 2018

APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

D. MICHAEL HADDOX                              JAMES A. ANZELMO
Prosecuting Attorney                           446 Howland Drive
Muskingum County, Ohio                         Gahanna, Ohio 43230

BY: GERALD V. ANDERSON, II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0024                                                     2

Hoffman, P.J.

         {¶1}   Plaintiff-appellant the state of Ohio appeals the April 3, 2018 Entry entered

by the Muskingum County Court of Common Pleas, which granted judicial release to

defendant-appellee Stephanie Davis.

                                   STATEMENT OF THE CASE1

         {¶2}   Appellee was convicted of two counts of possession of drugs, both felonies

of the fifth degree; two counts of possession of drug paraphernalia, both misdemeanors

of the fourth degree; one count of possession of drugs with a prior offense, a felony of the

fifth degree; and one count of tampering with evidence, a felony of the third degree. On

January 10, 2017, the trial court sentenced Appellee to a two year period of community

control with an alternative prison sentence of six years.

         {¶3}   On February 9, 2017, the state filed a motion to revoke Appellee’s

community control after she was charged with domestic violence.              The trial court

conducted a hearing on February 27, 2017, at which time Appellee entered a plea of guilty

to the community control violation. Via Entry filed March 2, 2017, the trial court revoked

Appellee's community control and imposed an aggregate prison term of six years.

         {¶4}   After Appellee had served approximately one year of her sentence, the trial

court issued a warrant for removal, ordering the sheriff to transport her to court for a

judicial release hearing on April 2, 2018. At the hearing, the state objected, arguing

Appellee was not eligible for judicial release until “not earlier than five years” after she

was delivered to prison pursuant to R.C. 2929.20(C)(4). The trial court disagreed, finding




1   A Statement of the Facts is not necessary for our disposition of this Appeal.
Muskingum County, Case No. CT2018-0024                                                       3


she was eligible as she was not subject to a mandatory prison sentence, and granted

judicial release. The trial court placed Appellee on community control for a period of two

years. The trial court memorialized its decision via Entry filed April 3, 2018.

       {¶5}   It is from this entry the state appeals, raising as its sole assignment of error:



              I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT HELD

       A HEARING AND GRANTED JUDICIAL RELEASE CONTRARY TO LAW

       AND    WITHOUT        JURISDICTION        OR    AUTHORITY        OVER      THE

       PROCEEDINGS.

                                                  I.

       {¶6}   The state asserts the trial court's decision to grant Appellee judicial release

was contrary to law because she was not eligible pursuant to R.C. 2929.20(C)(4).

Appellee submits, because R.C. 2953.08(B)(3) only grants the state a right to appeal if a

court modifies a sentence imposed for a first or second degree felony and she was

convicted of third and fifth degree felonies, the state does not have the right to appeal the

trial court's sentence modification and judicial release.

       {¶7}   The right of a prosecuting attorney to appeal a sentence is provided by R.C.

2953.08(B):



              (B) In addition to any other right to appeal and except as provided in

       division (D) of this section, a prosecuting attorney * * * may appeal as a

       matter of right a sentence imposed upon a defendant who is convicted of or

       pleads guilty to a felony or, in the circumstances described in division (B)(3)
Muskingum County, Case No. CT2018-0024                                                     4


       of this section the modification of a sentence imposed upon such a

       defendant, on any of the following grounds:

              ***

              (2) The sentence is contrary to law.

              (3) The sentence is a modification under section 2929.02 of the

       Revised Code of a sentence that was imposed for a felony of the first or

       second degree.



       {¶8}   The Ohio Supreme Court addressed the scope of the state's right to appeal

a sentence modification based on judicial release in State v. Cunningham, 113 Ohio St.3d

108, 2007-Ohio-1245, 863 N.E.2d 120. In Cunningham, the defendant was sentenced to

community control after pleading guilty to a felony of the fifth degree. Id. at ¶2. After the

defendant violated the terms of her community control, the trial court imposed a one-year

term of incarceration. Id. Two months later, the defendant moved for judicial release under

R.C. 2929.20, but withdrew the motion before the trial court ruled on it. Id. at ¶3. The

defendant filed a second motion for judicial release, moving the trial court to “reinstate”

her first motion for judicial release. Id. The second motion was untimely filed. The trial

court granted that motion and modified the defendant's sentence of incarceration to a

four-year period of community control. Id.     The state appealed, arguing the trial court

acted contrary to law in granting judicial release because the court had no authority to

reinstate the defendant's withdrawn motion for judicial release. Id.

       {¶9}   Prior to oral argument, the appellate court, sua sponte, raised the issue of

whether the trial court's order modifying the sentence constituted a final, appealable
Muskingum County, Case No. CT2018-0024                                                    5

order. Id. at ¶4. In a split decision, the appellate court dismissed the state's appeal,

holding that granting judicial release for third, fourth, or fifth-degree felonies was not a

final, appealable order; therefore, R.C. 2953.08(B) did not grant the state the right to

appeal. Id. The state appealed to the Ohio Supreme Court, arguing R.C. 2953.08(B)(2)

authorizes an appeal from modification of any sentence that is contrary to law, and the

modification of sentence granting judicial release to Cunningham violated R.C.

2929.20(B)(1)(a) because Cunningham did not file her motion seeking judicial release in

a timely manner. Id. at ¶5.

       {¶10} The Cunningham Court held “R.C. 2953.08(B)(2) does not authorize a

prosecuting attorney to appeal the modification of a sentence granting judicial release for

a felony of the third, fourth, or fifth degree.” Id. at ¶28. The Supreme Court also rejected

the state's argument it had the “right to appeal pursuant to R.C. 2953.08(B)(2) from orders

granting judicial release pursuant to R.C. 2929.20 that are contrary to law.” The Supreme

Court found R.C. 2953.08(B)(2) does not refer to the modification of a sentence; rather,

it authorizes the prosecuting attorney to appeal, as a matter of right, a sentence imposed

on a defendant on the grounds “[t]he sentence is contrary to law.” Id. at ¶22. The High

Court concluded R.C. 2953.08(B)(2) does not apply to a modification of a sentence which

is allegedly contrary to law. Id. (Citation omitted.) (Emphasis added.)

       {¶11} In a case similar to the instant matter, the Fourth District Court of Appeals

in State v. Sparks, 178 Ohio App.3d 272, 2008-Ohio-4664, found Cunningham to be

controlling:



               [W]e believe that Cunningham is controlling and requires us to
Muskingum County, Case No. CT2018-0024                                                    6


      dismiss the appeal. Appellant is attempting to appeal the trial court's

      decision to modify appellee's sentence and grant judicial release for third-

      degree felonies. Appellant asserts that the trial court's decision is contrary

      to law. As Cunningham states, however, R.C. 2953.08(B) does not

      authorize the state to appeal a sentence modification claimed to be contrary

      to law or a sentence modification under R.C. 2929.20 for a third-, fourth-, or

      fifth-degree felony. See also State v. Fox, Cuyahoga App. No. 87821, 2007-

      Ohio-3893, 2007 WL 2206793. Accordingly, we must dismiss the state's

      appeal. State v. Sparks, 178 Ohio App.3d 272, 2008-Ohio-4664 ¶7. (Italics

      omitted in original.)



      {¶12} We agree and find Cunningham applicable; therefore, we must dismiss the

state’s appeal. As Judge Harsha explained in his concurring opinion in Sparks:



             Although the trial court clearly erred in the exercise of its jurisdiction

      by granting judicial release to an ineligible offender, that error rendered the

      resulting judgment voidable, not void. Thus, the state's remedy is to attack

      the judgment through a direct appeal. However, R.C. 2953.08(B) does not

      permit the state to appeal the trial court's decision to grant judicial release

      to an offender convicted of a third-, fourth-, or fifth-degree felony. Because

      the state does not have a substantial right to appeal in this special statutory
Muskingum County, Case No. CT2018-0024                                                  7


      proceeding, there is no appealable order, and we lack jurisdiction to

      consider a direct appeal in this case. Thus, I concur in the judgment of the

      principal opinion.

      Id. at ¶16.

      {¶13} Based upon the foregoing, we find the state did not have a right to appeal

the trial court’s modification of Appellee’s sentence. Accordingly, Appellant’s assignment

of error is overruled and this appeal ordered dismissed.




By: Hoffman, P.J.

Delaney, J. and

Wise, Earle, J. concur
