[Cite as State v. Coleman, 2016-Ohio-7264.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




STATE OF OHIO,                                  :

        Plaintiff-Appellant,                    :       CASE NO. CA2015-12-099

                                                :               OPINION
   - vs -                                                       10/11/2016
                                                :

DONOVAN W. COLEMAN,                             :

        Defendant-Appellee.                     :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2915CR00479



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellant

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, Ohio 45103 and Young Reverman Mazzei Co., LPA, Robert D. Karl,
1014 Vine Street, #2400, Cincinnati, Ohio 45202, for defendant-appellee



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from a decision of the Clermont

County Court of Common Pleas imposing community control on defendant-appellee,

Donovan Coleman, after he pled guilty to safecracking, grand theft of a firearm, and

burglary. For the reasons detailed below, we reverse and remand for resentencing.

        {¶ 2} While on community control, Coleman broke into a home, pried open a safe
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with a screwdriver, stole five firearms, and then proceeded to hide the weapons along the

banks of the Little Miami River.        Coleman subsequently pled guilty to one count of

safecracking in violation of R.C. 2911.31(A), a fourth-degree felony, one count of grand

theft of a firearm in violation of R.C. 2913.02(A)(1), a third-degree felony, and one count of

burglary in violation of R.C. 2911.12(A)(3), also a third-degree felony.

       {¶ 3} Pursuant to R.C. 2913.02(B)(4), theft of a firearm carries a presumption of a

prison term.    However, during Coleman's sentencing hearing, the trial court advised

Coleman that he understood there to be an ambiguity in the sentencing statutes and would

not be imposing a prison term:

               * * * I will find that recidivism is more likely. So if the legislature
               had not made a mistake, you would be going to prison today.
               And we went through this at the time of the plea hearing. They
               put into law that a presumption in favor of - - the theft of a firearm
               carries with it a presumption in favor of prison.

               They - - this is my take. I think clearly they forgot that in terms
               of 2929.13(D) which sets forth when a presumption is
               overridden, they forgot to include that in the statute. And so the
               findings that the Court would have to make in order to override
               a presumption are not present with this case because of, I think,
               a matter of legislative oversight. And that's how close you are
               to going to prison. Because what - - what the findings would
               have to have been, I would have to find that recidivism is less
               likely. I can't do that on these facts.

               So if that - - if the law were - - were correctly stated you would
               be going to prison today. And I tell you that only because you
               probably need to know how close you are to * * * going to prison.

       {¶ 4} Thereafter, the trial court found that Coleman's conduct was neither more or

less serious than conduct normally constituting the offenses and that Coleman had a higher

risk of recidivism.    Based upon its consideration of the purposes and principles of

sentencing under R.C. 2929.11 and R.C. 2929.12, the trial court imposed a community

control sanction. The state now appeals, raising a single assignment of error for review.

       {¶ 5} THE TRIAL COURT CLEARLY AND CONVINCINGLY ERRED AND

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SENTENCED APPELLEE CONTRARY TO LAW BY NOT APPLYING A PRESUMPTION

FOR PRISON AND THEREBY NOT IMPOSING A PRISON SENTENCE.

       {¶ 6} In its sole assignment of error, the state alleges the trial court's sentence on

Coleman's conviction for grand theft of a firearm is contrary to law because the trial court

failed to apply the presumption in favor of a prison term.

       {¶ 7} This court reviews felony sentences pursuant to the standard of review set

forth in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is

clearly and convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-

224, 2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate

a sentence only if, by clear and convincing evidence, "the record does not support the trial

court's findings under relevant statutes or that the sentence is otherwise contrary to law."

State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence

is not clearly and convincingly contrary to law where the trial court considers the purposes

and principles of sentencing as set forth in R.C. 2929.11, as well as the seriousness and

recidivism factors listed in R.C. 2929.12, and sentences a defendant within the permissible

statutory range. State v. Brandenburg, 12th Dist. Butler Nos. CA2014-10-201 and CA2014-

10-202, 2016-Ohio-4918, ¶ 9.

       {¶ 8} The issue in the present case involves an interplay of the specific crime of

grand theft of a firearm and the general sentencing statutes.             Pursuant to R.C.

2913.02(B)(4),

              If the property stolen is a firearm or dangerous ordnance, a
              violation of this section is grand theft. Except as otherwise
              provided in this division, grand theft when the property stolen is
              a firearm or dangerous ordnance is a felony of the third degree,
              and there is a presumption in favor of the court imposing a
              prison term for the offense. * * *

(Emphasis added.) Despite the fact that the statute clearly identifies a presumption of


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prison for the offense, neither R.C. 2929.13(D), nor any other provision in the Ohio Revised

Code provide a trial court with any guidance or determination of how the presumption of

prison time is rebutted for this specific offense.

       {¶ 9} The trial court correctly recognized the issue, noting that a presumption of

prison applied, but also understood that none of the statutory provisions applied to provide

guidance on how the presumption is overridden. As a result, the trial court applied R.C.

2929.13(C), the general sentencing statute for third-degree felonies, which provides:

              Except as provided in division (D), (E), (F), or (G) of this section,
              in determining whether to impose a prison term as a sanction
              for a felony of the third degree * * * the sentencing court shall
              comply with the purposes and principles of sentencing under
              section 2929.11 of the Revised Code and with section 2929.12
              of the Revised Code.

The trial court, after reviewing the principles and purposes of sentencing and balancing the

seriousness and recidivism factors, concluded that a community control sanction was an

appropriate sentence in this case.

       {¶ 10} Based on our review, we find the trial court's sentencing was contrary to law

and remand this matter for resentencing, as the trial court did not specify whether it

considered the presumption in favor of a prison term. The Ohio Supreme Court has held

that judicial findings must be provided for downward departures, such as when a court

refuses to impose a presumptive prison term or when a court grants a judicial release. State

v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, ¶ 27.

       {¶ 11} There is no dispute in this case that Coleman's conviction for grand theft of

a firearm included a presumption of prison. In addition, we agree with the trial court that

the offense is not included in R.C. 2929.13(D), which would otherwise provide guidance on

overcoming that presumption. The trial court, while correctly noting the issue, ultimately

decided to apply R.C. 2929.13(C), but did not make any finding that the presumption of


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prison term was rebutted. By applying R.C. 2929.13(C), the trial court essentially treated

the grand theft of a firearm as any other third-degree felony for which there is no

presumption of a prison term.

       {¶ 12} While the legislature failed to prescribe any particular factors for

consideration in determining whether the presumption had been rebutted, that does not

mean that the legislature did not intend the offense to carry a presumption of prison time.

The trial court was still required to find that the presumption of prison had been rebutted.

Thus, while the trial court was required to find that the presumption had been rebutted, it

was not constrained in its sentencing decision by only those factors contained in R.C.

2929.13(D).

       {¶ 13} Accordingly, on these facts, we remand this matter for resentencing to

determine whether the presumption of prison time for Coleman's conviction for grand theft

of a firearm was rebutted. In so doing, we note that the trial court correctly determined that

grand theft of a firearm is not included within R.C. 2929.13(D), and therefore the trial court

is not required to satisfy those elements in order to rebut the presumption of prison in this

case. Nevertheless, considering the relevant factors the trial court deems appropriate, the

court must determine whether the presumption of prison has been rebutted.

       {¶ 14} Judgment reversed and remanded.


       M. POWELL, P.J., and PIPER, J., concur.




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