[Cite as State v. Prince, 2016-Ohio-2724.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103265


                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     DERRICK PRINCE
                                                    DEFENDANT-APPELLANT



                                  JUDGMENT:
                               AFFIRMED IN PART,
                           VACATED IN PART, REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-583469-B

        BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: April 28, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Gregory J. Ochocki
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

         {¶1}   Appellant Derrick Prince appeals from the sentence imposed for his

violation of community control sanctions in Cuyahoga C.P. No. CR-14-583469-B. Upon

review, we vacate the sentence in part and remand the matter for correction of the journal

entry.

         {¶2} In Cuyahoga C.P. No. CR-14-583469-B (“the new case”), appellant was

charged under a multicount indictment.        He pled guilty to an amended charge of

attempted drug possession in violation of R.C. 2923.02 and 2925.11, a felony of the fifth

degree, and the remaining counts were nolled. At the time of the offense, appellant was

under a five-year term of postrelease control in another felony case, Cuyahoga C.P. No.

CR-12-568662-A (“the earlier case”). He was placed on postrelease control in the earlier

case on November 9, 2013.

         {¶3} At sentencing in the new case on September 2, 2014, the trial court did not

impose a prison term. The offense was punishable by a maximum of 12 months in

prison. Instead, the trial court sentenced appellant to three years of community control.

The trial court stated:

         I’m going to give you one shot at probation. If you fail, I’m going to

         sentence you to five years at Lorain Correctional [Institution]. I will put

         the four years of post-release control on the 12 months of the sentence * *

         *.
       {¶4} The trial court’s journal entry also indicated that a violation of the terms and

conditions of the community control sanctions “may result in more restrictive sanctions as

approved by law (12 months plus 4 years [postrelease control] that he is presently on).”

       {¶5} On June 18, 2015, appellant appeared before the court and admitted to the

community control violation after testing positive for marijuana and failing to maintain a

“B” average in school.       The trial court imposed a sentence of six months for the

community control violation in the new case, plus four years for the postrelease control

violation in the earlier case.1

       {¶6} Appellant timely filed this appeal.        Under his sole assignment of error,

appellant claims the trial court erred by imposing the additional four years of prison

attendant to the postrelease control violation in the earlier case.

       {¶7} A trial court has authority to impose a prison term or sanction for a

postrelease control violation in an earlier felony case upon a new felony conviction

consistent with the requirements of R.C. 2929.141. It provides, in relevant part:

       (A) Upon the conviction of or plea of guilty to a felony by a person on
       post-release control at the time of the commission of the felony, the court
       may terminate the term of post-release control, and the court may do either
       of the following regardless of whether the sentencing court or another court
       of this state imposed the original prison term for which the person is on
       post-release control:

       (1) In addition to any prison term for the new felony, impose a prison term
       for the post-release control violation. The maximum prison term for the

       1
        We note that at the time the trial court imposed the sentence for the
community control violation in the new case, appellant had less than three and a
half years of postrelease control remaining in the earlier case.
      violation shall be the greater of twelve months or the period of post-release
      control for the earlier felony minus any time the person has spent under
      post-release control for the earlier felony. In all cases, any prison term
      imposed for the violation shall be reduced by any prison term that is
      administratively imposed by the parole board as a post-release control
      sanction. A prison term imposed for the violation shall be served
      consecutively to any prison term imposed for the new felony. The
      imposition of a prison term for the post-release control violation shall
      terminate the period of post-release control for the earlier felony.

      (2) Impose a sanction under sections 2929.15 to 2929.18 of the Revised

      Code for the violation that shall be served concurrently or consecutively, as

      specified by the court, with any community control sanctions for the new

      felony.

(Emphasis added.) R.C. 2929.141(A).

      {¶8} Where the language of a statute is clear and unambiguous, we are bound to

enforce the statute as written. Spencer v. Freight Handlers, Inc., 131 Ohio St.3d 316,

2012-Ohio-880, 964 N.E.2d 1030, ¶ 16, citing Hubbard v. Canton City School Bd. of

Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 14. By its terms, R.C.

2929.141 applies “[u]pon the conviction of or plea of guilty to” a new felony offense by a

person who is on postrelease control from an earlier felony conviction. In such a case,

R.C. 2929.141(A)(1) allows a trial court, in addition to imposing a prison term for the

new felony, to impose a consecutive prison term as specified for the violation of

postrelease control for the earlier felony. Alternatively, R.C. 2929.141(A)(2) allows a

trial court to impose an additional community control sanction for the postrelease control
violation, to be served concurrent with or consecutive to any community control sanctions

for the new felony.

       {¶9} In this case, at the time appellant was originally sentenced for the felony in

the new case, the trial court did not elect to terminate the postrelease control for the

earlier felony and impose a prison term to be served consecutively with a prison term

imposed for the new felony. Rather, the trial court imposed a three-year community

control sanction for the new felony and did not impose any additional community control

sanctions for the earlier felony.

       {¶10} R.C. 2929.141 has no application to appellant’s subsequent violation of

community control. Rather, R.C. 2929.15(B) applies to a violation of community control

sanctions and instructs as follows:

       (1) If the conditions of a community control sanction are violated or if the
       offender violates a law or leaves the state without the permission of the
       court or the offender’s probation officer, the sentencing court may impose
       upon the violator one or more of the following penalties:

       (a) A longer time under the same sanction if the total time under the
       sanctions does not exceed the five-year limit specified in division (A) of
       this section;

       (b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18
       of the Revised Code;

       (c) A prison term on the offender pursuant to section 2929.14 of the
       Revised Code.

       (2) The prison term, if any, imposed upon a violator pursuant to this

       division shall be within the range of prison terms available for the offense

       for which the sanction that was violated was imposed and shall not exceed
      the prison term specified in the notice provided to the offender at the

      sentencing hearing pursuant to division (B)(2) of section 2929.19 of the

      Revised Code. The court may reduce the longer period of time that the

      offender is required to spend under the longer sanction, the more restrictive

      sanction, or a prison term imposed pursuant to this division by the time the

      offender successfully spent under the sanction that was initially imposed.

(Emphasis added.)

      {¶11} Thus, R.C. 2929.15(B) permits the trial court to impose a prison term upon

the defendant for a community control violation, but the prison term must be “within the

range of prison terms available for the offense for which the sanction that was violated

was imposed and [does] not exceed the prison term specified in the notice provided to the

offender at the sentencing hearing * * *.” R.C. 2929.15(B)(2). Here, the underlying

offense was a fifth-degree felony, which has a sentencing range between six and twelve

months pursuant to R.C. 2929.14(A)(5).

      {¶12} To the extent the trial court misinformed appellant at his original sentencing

in the new case that a violation of community control would result in a five-year sentence,

the trial court lacked authority to impose such a sentence. The prison term imposed

could not exceed the sentencing range for the offense for which the community control

sanction that was violated was imposed. R.C. 2929.15(B)(2).

      {¶13} The trial court erred in purporting to act under R.C. 2929.141 to impose an

additional prison sanction in this matter, and it lacked authority to impose a judicial
sanction for the postrelease control violation. Nevertheless, as appellant concedes, he

remains subject to the parole board for the violation of postrelease control attendant to

having marijuana in his system and can be administratively punished as provided in R.C.

2967.28.

      {¶14} Upon our review, we find the trial court imposed a sentence that was

contrary to law.     The additional four-year sentence purportedly imposed for the

postrelease control violation in the earlier case is vacated. Appellant’s sentence in the

new case is limited to the six-month prison term imposed for the community control

violation in that case.   The case is remanded for correction of the journal entry in

conformance herewith.

      {¶15} Sentence vacated in part; case remanded.

      It is ordered that appellant and appellee share 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
