[Cite as State v. Gillogy, 2011-Ohio-2232.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. CT2010-0036
ROBERT H. GILLOGLY, III

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2009-0253


JUDGMENT:                                      Reversed and Remanded


DATE OF JUDGMENT ENTRY:                        May 6, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


ROBERT L. SMITH                                ROBERT MCCLELLAND
Assistant Prosecuting Attorney                 P.O. BOX 340
27 North Fifth Street                          Zanesville, OH 43702-0340
Zanesville, OH 43701
Muskingum County, Case No. CT2010-0036                                                   2

Hoffman, J.


       {¶1}   Defendant-appellant Robert H. Gillogly, III appeals the June 16, 2010

Entry entered by the Muskingum County Court of Common Pleas, which sentenced him

on one count of OVI, a felony of the third degree, and one count of driving under

suspension, a misdemeanor of the first degree, after Appellant entered a plea of guilty

to the charges. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}   On November 25, 2009, the Muskingum County Grand Jury indicted

Appellant on one count of operating a motor vehicle under the influence of alcohol with

a prior offense specification, a felony of the third degree; one count of driving under

suspension, a misdemeanor of the first degree; one count of possession of marijuana, a

minor misdemeanor; and one count of possession of drug paraphernalia, a

misdemeanor of the fourth degree. Appellant appeared for arraignment on December

9, 2009, and entered a plea of not guilty to the charges. Appellant waived his speedy

trial rights and requested at least one continuance of the trial. The trial court scheduled

the matter for trial on May 4, 2010.

       {¶3}   On April 30, 2010, Appellant appeared before the trial court and withdrew

his former plea of not guilty and entered a plea of guilty to Count One of the Indictment,

OVI, which was amended to dismiss the prior offense specification, and Count Two,

driving under suspension. The State nolled the remaining counts. The plea of guilty

form signed by Appellant indicated the OVI charge carried a sentence of sixty days in

prison up to five years, and included the notation “must serve entire sentence”. The
Muskingum County, Case No. CT2010-0036                                                  3


“must serve entire sentence” language is manually crossed out and the amendment

initialed by counsel for the parties.

       {¶4}      On the record, Judge Cottrill, who accepted Appellant’s plea on behalf of

Judge Fleegle, discussed the maximum penalty for the OVI charge:

       {¶5}      “The Court: You understand, Mr. Gillogly, as amended, Count I is charged

as operating a motor vehicle while under the influence of alcohol or drugs, and that is

charged as a felony of the third degree.

       {¶6}      “That carries with it a maximum stated prison term of one through five

years in one-year increments, with a mandatory minimum incarceration of at least 60

days.” April 30, 2010 Change of Plea Hearing at 5.

       {¶7}      The trial court accepted Appellant’s plea and ordered a presentence

investigation.    Appellant appeared before the trial court for sentencing on June 14,

2010. Counsel for Appellant addressed the court:

       {¶8}      “Attorney Robert McClelland: We would ask that the Court follow the

recommended plea offer as the State has agreed, and we also would like to point out for

the record that it’s defense counsel’s opinion that the sentence is a 60-day mandatory

prison sentence which he must serve, but it’s my opinion that any sentence above that

he would be eligible for early release.” June 14, 2010 Sentencing Hearing at 4.

       {¶9}      The trial court proceeded with sentencing, stating:

       {¶10} “Upon the review of that presentence investigation, the Court will follow

the recommendation of the State of Ohio and impose a three-year sentence on Count 1.

Of that, 60 days is mandatory, and the Court’s interpretation of the statute is that you

must serve any sentence that is given, which means you’re not eligible.            That’s
Muskingum County, Case No. CT2010-0036                                                   4


something that may be contested later on.        That’s the Court’s interpretation of the

statute, and that’s what was advised to you at the time of entering a plea, so it should

not be a surprise.” June 14, 2010 Sentencing Hearing at 5.

       {¶11} The trial court issued its Entry on June 16, 2010, which memorialized the

sentence reiterated the trial court’s determination Appellant was not eligible for early

release.

       {¶12} It is from the June 16, 2010 Entry Appellant appeals, raising the following

assignment of error:

       {¶13} “I. THE APPELLANT’S SENTENCE IS CLEARLY AND CONVINCINGLY

CONTRARY TO LAW.”

                                                 I

       {¶14} Appellant pled guilty to operating a vehicle while under the influence of

alcohol, in violation of R.C. 4511.19(A)(1)(d). The trial court sentenced Appellant to a

term of imprisonment of three (3) years pursuant to R.C. 4511.19(G)(1), which provides,

in relevant part:

       {¶15} “(e) An offender who previously has been convicted of or pleaded guilty to

a violation of division (A) of this section that was a felony, regardless of when the

violation and the conviction or guilty plea occurred, is guilty of a felony of the third

degree. The court shall sentence the offender to all of the following:

       {¶16} “(i) If the offender is being sentenced for a violation of division (A)(1)* *

*(d) * * * 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
Muskingum County, Case No. CT2010-0036                                                       5


type described in section 2941.1413 of the Revised Code or a mandatory prison term of

sixty consecutive days in accordance with division (G)(2) of section 2929.13 of the

Revised Code if the offender is not convicted of and does not plead guilty to a

specification of that type. The court may impose a prison term in addition to the

mandatory prison term. The cumulative total of a sixty-day mandatory prison term and

the additional prison term for the offense shall not exceed five years. In addition to the

mandatory prison term or mandatory prison term and additional prison term the court

imposes, the court also may sentence the offender to a community control sanction for

the offense, but the offender shall serve all of the prison terms so imposed prior to

serving the community control sanction.” (Emphasis added).

       {¶17} R.C. 2929.13(G)(2) provides, in relevant part:

       {¶18} “(G) * * * [I]f an offender is being sentenced for a fourth degree felony OVI

offense or for a third degree felony OVI offense, the court shall impose upon the

offender a mandatory term of local incarceration or a mandatory prison term in

accordance with the following:

       {¶19} “ * * *

       {¶20} “(2) If the offender is being sentenced for a third degree felony OVI

offense, or if the offender is being sentenced for a fourth degree felony OVI offense and

the court does not impose a mandatory term of local incarceration under division (G)(1)

of this section, the court shall impose upon the offender a mandatory prison term of one,

two, three, four, or five years 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 shall

impose upon the offender a mandatory prison term of sixty days or one hundred twenty
Muskingum County, Case No. CT2010-0036                                                 6


days as specified in division (G)(1)(d) or (e) of section 4511.19 of the Revised Code if

the offender has not been convicted of and has not pleaded guilty to a specification of

that type. The court shall not reduce the term pursuant to section 2929.20, 2967.193, or

any other provision of the Revised Code. The offender shall serve the one-, two-, three-,

four-, or five-year mandatory prison term consecutively to and prior to the prison term

imposed for the underlying offense and consecutively to any other mandatory prison

term imposed in relation to the offense. In no case shall an offender who once has been

sentenced to a mandatory term of local incarceration pursuant to division (G)(1) of this

section for a fourth degree felony OVI offense be sentenced to another mandatory term

of local incarceration under that division for any violation of division (A) of section

4511.19 of the Revised Code. In addition to the mandatory prison term described in

division (G)(2) of this section, the court may sentence the offender to a community

control sanction under section 2929.16 or 2929.17 of the Revised Code, but the

offender shall serve the prison term prior to serving the community control sanction.”

(Emphasis added).

      {¶21} In the present case, as part of the plea agreement, Appellant did not plead

guilty to a specification of the type described in R.C. 2941.1413. Therefore, under R.C.

4511.19(G)(1)(e)(i), the trial court was required to impose “a mandatory prison term of

sixty consecutive days in accordance with division (G)(2) of section 2929.13 of the

Revised Code.” R.C. 4511.19(G)(1)(e)(i) also permits the trial court to impose a prison

term in addition to the mandatory prison term. The trial court herein sentenced Appellant

to a cumulative term of imprisonment of three years. Such was well within the dictates

of R.C. 4511.19(G)(1)(e). However, the trial court ordered Appellant serve the entire
Muskingum County, Case No. CT2010-0036                                               7


sentence “without any possibility of early release”. We find nothing in the language of

R.C. 4511.19 and 2929.13 which mandates this order.1 While we find the statute clearly

prohibits release any time prior to the 60 day mandatory prison term, we do not believe

the legislature intended that portion of the total sentence after the initial 60 day

mandatory portion to be ineligible for judicial release where no R.C. 2941.1413

specification applies.2   Accordingly, we reverse the judgment of the trial court and

remand the matter for resentencing with instructions to delete the “without any

possibility of early release” language from the sentencing entry.

       {¶22} Appellant’s sole assignment of error is sustained.

       {¶23} The judgment of the Muskingum County Court of Common Pleas is

reversed and the matter remanded for further proceedings consistent with this opinion

and the law.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur
                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ W. Scott Gwin _____________________
                                             HON. W. SCOTT GWIN


                                             s/ John W. Wise______________________
                                             HON. JOHN W. WISE



1
  We note the trial court did not sentence Appellant to community control sanctions.
2
  We agree with Appellee’s observation: “Section 4511.19, which has been modified by
the legislature almost yearly for the past ten (10) years, has become an albatross that
now comprises approximately nine (9) pages of single spaced text with cross references
to over a dozen separate provisions of the Ohio Revised Code.” Brief of Appellee at 7.
Muskingum County, Case No. CT2010-0036                                        8


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
ROBERT H. GILLOGLY, III                 :
                                        :
       Defendant-Appellant              :        Case No. CT2010-0036


       For the reason stated in our accompanying Opinion, the judgment of the

Muskingum County Court of Common Pleas is reversed and the matter remanded for

further proceedings consistent with our Opinion and the law.   Costs assessed to

Appellee.




                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ W. Scott Gwin _____________________
                                        HON. W. SCOTT GWIN


                                        s/ John W. Wise _____________________
                                        HON. JOHN W. WISE
