[Cite as State v. Martin, 2017-Ohio-2759.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104802




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                FREDRICK G. MARTIN
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                               VACATED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-597329-A

        BEFORE: Laster Mays, J., Keough, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: May 11, 2017
                               -i-
ATTORNEY FOR APPELLANT

Michael Hustick
50 Public Square, Suite 1900
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Brett Hammond
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Fredrick G. Martin (“Martin”), appeals his sentence and

asks this court to modify his sentence pursuant to the authority under R.C. 2953.08(G).

After a review of the record, we vacate and remand.

       {¶2} Martin pleaded guilty to one count of operating a vehicle while under the

influence (“OVI”), a fourth-degree felony in violation of R.C. 4511.19(A)(1)(a).       The

trial court sentenced Martin to 18 months imprisonment. During the sentencing hearing,

the trial court stated that 18 months imprisonment was a mandatory term. (Tr. 21.)

Martin disagrees with the trial court’s determination and assigns one error for our review.

       {¶3} Martin contends that the sentence is clearly and convincingly contrary to law.

       {¶4} The state concedes and agrees that the trial court erred in imposing an

18-month mandatory prison term for Martin’s conviction under R.C. 4511.19(A)(1)(a);

however, it disagrees with Martin’s proposed remedy to modify his sentence by imposing

a 60-day mandatory prison term.    The state argues that this court should remand this case

to the trial court for resentencing consistent with R.C. 4511.19(G)(1)(d).
I.     Sentencing Contrary to Law

       A.       Standard of Review

       {¶5} This court has determined that

       [a]ppellate review of felony sentences is governed by R.C. 2953.08. State v.
       Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16.
       R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
       reviewing court may increase, reduce, or modify a sentence, or it may
       vacate and remand the matter for resentencing, only if we clearly and
       convincingly find that either the record does not support the sentencing
       court’s statutory findings or the sentence is contrary to law. A sentence is
       contrary to law if the sentence falls outside the statutory range for the
       particular degree of offense or the trial court failed to consider the purposes
       and principles of felony sentencing set forth in R.C. 2929.11 and the
       sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga
       No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist.
       Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.

State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99, ¶ 7.

       B.       Law and Analysis

       {¶6} In Martin’s sole assignment of error, he argues that his sentence is clearly and

convincingly contrary to law because it was not authorized under the sentencing

provisions of R.C. 2929.13 and 4511.19. The state concedes this error, but disagrees

with Martin’s remedy. Martin has asked this court to reduce his sentence to 60 days

imprisonment, and the state has requested that we remand to the trial court for

resentencing.    R.C. 2953.08(G)(2) gives us the authority to modify or vacate and

remand.     We agree that the trial court erred in imposing a mandatory prison term of 18

months because the statute reads, in part, as follows:

       [i]f the sentence is being imposed for a violation of division (A)(1)(a), (b),
       (c), (d), (e), or (j) of this section, a mandatory prison term of one, two,
       three, four, or five years as required by and in accordance with division
       (G)(2) of section 2929.13 of the Revised Code if the offender also is
       convicted of or also pleads guilty to a specification of the type described in
       section 2941.1413 of the Revised Code or, in the discretion of the court,
       either a mandatory term of local incarceration of sixty consecutive days in
       accordance with division (G)(1) of section 2929.13 of the Revised Code or
       a mandatory prison term of sixty consecutive days in accordance with
       division (G)(2) of that section if the offender is not convicted of and does
       not plead guilty to a specification of that type.

R.C. 4511.19(G)(1)(d).

Therefore, we vacate Martin’s sentence and remand to the trial court for resentencing.

       {¶7} Judgment is vacated and remanded.

       It is ordered that the appellant recover from appellee 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.



______________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
SEAN C. GALLAGHER, J., CONCUR
