         [Cite as State v. Hamilton, 2015-Ohio-334.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                         :   APPEAL NO. C-140290
                                                           TRIAL NO. B-1401419
        Plaintiff-Appellee,                            :

  vs.                                                  :
                                                             O P I N I O N.
CARMICHAEL HAMILTON,                                   :

    Defendant-Appellant.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Sentences
                           Vacated, and Cause Remanded

Date of Judgment Entry on Appeal: January 30, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

J. Rhett Baker, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.


       {¶1}   Defendant-appellant Carmichael Hamilton appeals from the judgment

of the Hamilton County Court of Common Pleas convicting him, after his pleas of

guilty, of 13 theft offenses, all fourth- or fifth-degree felonies.   The trial court

sentenced Hamilton to prison for each of the offenses, with some of the terms to run

consecutively and others concurrently, for an aggregate prison term of two years.

       {¶2}   In three assignments of error, Hamilton contends that the trial court

erred by imposing prison terms for the nonviolent fourth- and fifth-degree felonies

and by imposing consecutive terms, and that he was denied the effective assistance of

counsel at his sentencing hearing, because trial counsel failed to object to his

improper sentences.     Because Hamilton’s assignment of error challenging the

imposition of the prison terms is meritorious, where the record demonstrates that

his sentences were clearly and convincingly contrary to the provisions of R.C.

2929.13(B)(1)(a) and (b), we sustain that assignment of error, vacate his sentences,

and remand the cause for resentencing in accordance with R.C. 2953.08(G)(2).

                               Background Facts
       {¶3}   Between December 31, 2013, and March 17, 2014, Hamilton stole air-

conditioning units from the residences of 13 separate individuals, eight of whom

were elderly. He was subsequently indicted for 13 counts of theft of property worth

$1000 or more but less than $7500, in violation of R.C. 2913.02(A)(1), with eight of

the counts containing a specification that the victim was elderly. The specification

elevated those eight counts from fifth-degree-felony offenses to fourth-degree-felony

offenses.

       {¶4}   Hamilton entered guilty pleas to the 13 counts.         The trial court

accepted his pleas, ordered a presentence investigation (“PSI”), and continued the


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case for sentencing.

       {¶5}   The sentencing hearing was held about a month later. Consistent with

the PSI, defense counsel informed the court that Hamilton had not previously been

convicted of a felony. The court sentenced Hamilton to one year in prison for each of

the five theft counts, to be served concurrently with each other, and further

sentenced him to one year in prison for each of the eight enhanced theft counts, to be

served concurrently with each other. Without making any findings, the trial court

then ordered that the theft sentences be served consecutive to the enhanced theft

sentences, for an aggregate sentence of two years. Defense counsel did not object to

the trial court’s imposition of prison terms, or to the court’s order that some of those

terms be served consecutively.

                                 Standard of Review
       {¶6}   Hamilton’s first assignment of error challenges his sentences.        We

review Hamilton’s sentences under the standard of review set forth in R.C.

2953.08(G). See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 9 (1st Dist.).

Under that statute, we may modify or vacate a sentence only if we “clearly and

convincingly find” that the record does not support the sentencing court’s findings or

that the sentence is contrary to law. R.C. 2953.08(G)(2).

                                      Analysis
       {¶7}   Hamilton contends that his sentences were contrary to law because the

trial court did not make “findings” in accordance with R.C. 2929.13(B)(1)(a) and (b)

before imposing prison terms.      Alternatively, he argues that his sentences were

contrary to law because the record before the court demonstrated that community

control was mandatory under the provisions of R.C. 2929.13(B)(1)(a) and not

discretionary due to the existence of any of the factors set forth in R.C.

2929.13(B)(1)(b)(i)-(xi).

       {¶8}   We reject Hamilton’s first argument, because R.C. 2929.13(B)(1)(a)

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and (b) do not require the trial court to make findings before imposing a prison term.

But we concur with Hamilton’s second argument.               Therefore, we hold that his

sentences were contrary to law because the record does not support the court’s

imposition of prison terms for the nonviolent-fourth- and fifth-degree felonies.

          {¶9}   As this court recently noted, the legislature in 2011 enacted legislation

that “sharply limit[s] the circumstances” under which a court can sentence first-

time-felony offenders to prison when the offender has committed nonviolent crimes

and the offender’s most serious offense was a fourth- or fifth-degree felony. State v.

Jones, 1st Dist. Hamilton No. C-130625, 2014-Ohio-3345, ¶ 8, citing Am.Sub.H.B.

No. 86 (“H.B. 86”).

          {¶10} As    amended     by   H.B.   86   and   subsequent    legislation,   R.C.

2929.13(B)(1)(a) provides that for a nonviolent fourth- or fifth-degree felony, a court

must impose a community-control sanction of a least a year’s duration if all of the

following are met: (1) the offender has not previously been convicted of or pleaded

guilty to a felony; (2) the most serious charge at the time of sentencing is a fourth- or

fifth-degree felony; (3) if, in a case where the court believes that no acceptable

community-control sanctions are available, the court requests a community-control

option from the department of rehabilitation and correction, and the department

identifies an appropriate program; and (4) the offender has not been convicted of or

pleaded guilty to a misdemeanor offense of violence committed during the two years

before the commission of the offense for which the court is imposing sentence. Jones

at ¶ 8.

          {¶11} R.C. 2929.13(B)(1)(a), however, is subject to the exceptions listed in
R.C. 2929.13(B)(1)(b), which provides the sentencing court with “discretion” to

impose a prison term for a fourth- or fifth-degree felony if one of 11 criteria listed in

R.C. 2929.13(B)(1)(b)(i) through (xi) applies. Id. at ¶ 9.

          {¶12} In this case, the requirements of R.C. 2929.13(B)(1)(a) were met, such

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that Hamilton was presumptively ineligible for a prison term for the fourth- and

fifth-degree felonies, which were not “offense[s] of violence” or “qualifying assault

offense[s].” To that end, the record is devoid of evidence that Hamilton had a prior

felony conviction or a conviction for a misdemeanor offense of violence within the

past two years. And the most serious charge at the time of sentencing was a fourth-

degree felony. Further, it is not demonstrated in the record that the trial court made

a request to the department of rehabilitation and correction regarding the availability

of community-control sanctions, as contemplated by the third provision of R.C.

2929.13(B)(1)(a).     Therefore, the trial court was required to impose community

control for each of the offenses unless one of the 11 criteria set forth in R.C.

2929.13(B)(1)(b)(i-xi) applied. See Jones, 1st Dist. Hamilton No. C-130625, 2014-

Ohio-3343, at ¶ 10.

       {¶13} Upon our review of the record, we concur with Hamilton that none of
the criteria set forth in R.C. 2929.13(B)(1)(b)(i-xi) applied.

       {¶14} The state asserts that it discovered information demonstrating that
Hamilton committed the offenses while released from custody on a bond issued in at

least one other case, circumstances that would satisfy the criterion set forth in R.C.

2929.13(B)(1)(b)(xi).    According to its brief, however, the state discovered this

information when responding to Hamilton’s motion requesting this court for a stay

and an appellate bond, and long after Hamilton’s sentencing hearing.

       {¶15}    It is well settled that “a reviewing court cannot add matter to the

record before it, which was not a part of the trial court’s proceedings, and then decide

the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377

N.E.2d 500 (2001), cited in RNG Props., Ltd. v. Summit Cty. Bd. of Revision, 140

Ohio St.3d 455, 2014-Ohio-4036, 19 N.E.2d 906, ¶ 23. Because this information was

not presented below, it cannot serve as a basis for upholding the trial court’s

decision.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} On the state of the proper record before us, we conclude that the trial
court was not permitted to impose a prison term for the offenses and, instead, was

required to impose a community-control term of at least one year for the 13 offenses,

in accordance with R.C. 2929.13(B)(1)(a) and (b). Thus, the sentences were contrary

to law. Accordingly, we sustain the first assignment of error.

       {¶17} Hamilton further argues, citing to Jones, that in addition to vacating
the prison terms, this court must remand the case “with instructions to the trial court

to impose community control” for all of the offenses. We disagree.

       {¶18} In Jones, this court vacated the prison sentences imposed on several
counts involving nonviolent fifth-degree-felony offenses.        See Jones, 1st Dist

Hamilton No. C-130625, 2014-Ohio-3343, at ¶ 21. We held that based on the record

before the trial court “a community control term of at least one year was mandatory”

for those offenses. Id. at ¶ 11. We remanded the case “so that the court may impose

community control for those counts.” Id. at ¶ 21. By using this language, including

the word “may,” we intended only to announce that those sentences were contrary to

law, and that the defendant had to be resentenced in accordance with R.C.

2953.08(G)(2). And we now clarify that we did not remand the case to the trial court

with instructions to impose a community-control sanction.            Thus, we reject

Hamilton’s request that we remand the case with instructions for the trial court to

impose a community-control sanction for the offenses. Rather, on remand, the trial

court should conduct a de novo sentencing hearing, which in this case will involve all

of the offenses. See State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d

381, ¶ 14-15.

       {¶19} Hamilton also presents assignments of error challenging the trial
court’s imposition of consecutive terms, and claiming that he was denied the

effective assistance of counsel at his sentencing hearing. Our resolution of the first

assignment of error renders moot these remaining assignments of error. Thus, we

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decline to address them. See App.R. 12(A)(1)(c).

                                     Conclusion
       {¶20} We affirm the findings of guilt related to each of the 13 counts. But
because the trial court imposed prison terms in contravention of R.C.

2929.13(B)(1)(a) and (b), we vacate those prison terms and remand for resentencing,

consistent with the law and this opinion.

                                                                  Judgment accordingly.



HENDON and DEWINE, JJ., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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