[Cite as State v. Taylor, 2012-Ohio-232.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                              :         APPEAL NO. C-110295
                                                     TRIAL NO. B-0900555-B
          Plaintiff-Appellee,               :

        vs.                                 :

ERIC TAYLOR,                                :              O P I N I O N.

          Defendant-Appellant.              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: January 25, 2012




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Cornelius Lewis and Michael J. Trapp, for Defendant-Appellant.




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




FISCHER, Judge.

       {¶1}   Defendant-appellant Eric Taylor appeals the judgment of the Hamilton

County Court of Common Pleas revoking Taylor’s judicial release and sentencing him

to six years in prison. Because we determine that the trial court lacked authority to

increase Taylor’s original sentence, we reverse the trial court’s judgment and remand

the matter for resentencing.

       {¶2}   In January 2009, Taylor was indicted on three counts of aggravated

robbery with specifications, three counts of robbery, two counts of having a weapon

while under a disability, carrying a concealed weapon, and improperly handling a

firearm in a motor vehicle. Taylor pleaded guilty in November 2009 to three counts

of robbery, one of which was accompanied by a firearm specification. The trial court

sentenced Taylor to concurrent two-year terms of incarceration on each of the

robbery offenses, which were imposed consecutively to a one-year term of

incarceration on the firearm specification, for an aggregate sentence of three years in

the department of corrections.

       {¶3}   Taylor filed a motion for judicial release pursuant to R.C. 2929.20 in

June 2010, requesting that the court place him on judicial release once he served his

mandatory one-year prison term on the firearm specification. The trial court granted

the motion in December 2010, after holding a hearing where the trial court warned

Taylor that the court would impose a total of 16 years’ incarceration on his original

offenses if he violated the community-control sanctions imposed as a condition of his

release. Taylor indicated at the hearing that he understood the risk. The trial court’s




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entry suspending Taylor’s sentence and placing him on community control also

reflected the trial court’s admonition.

       {¶4}     In March 2011, a probation officer reported that Taylor had violated

the terms of his community control. The trial court revoked Taylor’s judicial release

after a hearing on the matter, and imposed concurrent five-year prison sentences on

each of the robbery offenses, which were made consecutive to a one-year prison

sentence on the firearm specification, for a total of six years’ imprisonment. Taylor

has appealed.

       {¶5}     In Taylor’s sole assignment of error, he contends that the trial court

erred by imposing a sentence contrary to law. R.C. 2929.20 allows a sentencing

court to reduce an eligible offender’s nonmandatory prison term by suspending the

balance of the offender’s prison term and imposing conditions on the offender’s

release.   State v. McConnell, 143 Ohio App.3d 219, 223, 757 N.E.2d 1167 (3rd

Dist.2001). The trial court then reserves the right to reimpose the suspended prison

term if the offender violates a condition of release. Id.

       {¶6}     R.C. 2929.20(K) provides, in part:

                If the court grants a motion for judicial release under

                this section, the court shall order the release of the

                eligible offender, shall place the eligible offender under

                an appropriate community control sanction, under

                appropriate conditions, and under the supervision of the

                department of probation serving the court and shall

                reserve the right to reimpose the sentence that it

                reduced if the offender violates the sanction. If the court

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                reimposes the reduced sentence, it may do so either

                concurrently with, or consecutive to, any new sentence

                imposed upon the eligible offender as a result of the

                violation that is a new offense.

        {¶7}    Generally, a trial court cannot modify a final criminal judgment. State

v. Carlisle, __ Ohio St.3d __, 2011-Ohio-6553, __ N.E.2d __. The judicial-release

statute can be viewed as an exception to this general rule, but the statute contains

parameters. Under R.C. 2929.20, if a court reimposes an offender’s prison sentence

after revoking judicial release, the court can only reimpose the offender’s original

sentence with credit for time served. See State v. Terry, 10th Dist. No. 11AP-127,

2011-Ohio-6666, ¶ 10, quoting State v. Darthard, 10th Dist. Nos. 01AP-1291, 01AP-

1292, and 01AP-1293, 2002-Ohio-4292, ¶ 11 (“ ‘[T]he trial court’s option in this

instance with respect to ordering incarceration is limited to the reinstatement, with

credit for time served, of the sentences that it suspended upon the granting of

judicial release.’ ”).

        {¶8}    Here, Taylor was sentenced originally to three years’ incarceration.

When the trial court revoked Taylor’s judicial release, the trial court, in effect,

modified Taylor’s original sentence by imposing a six-year prison term. The trial

court’s imposition of a greater prison sentence than that which had been suspended

at the time of the defendant’s release, and even greater than that which had been

originally imposed, was contrary to R.C. 2929.20 and amounted to prejudicial error.

See Terry at ¶ 13 (listing Ohio appellate court cases concluding that a trial court

erred where it revoked judicial release and imposed a greater or lesser prison

sentence than the remainder of the original sentence imposed).

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       {¶9}    The state argues that Taylor waived the right to challenge his sentence

because, at the judicial-release hearing, the trial court had warned Taylor that he

would be sentenced to 16 years in prison if he violated the terms of his judicial

release, and Taylor had not objected. Waiver is the intentional relinquishment or

abandonment of a known right. State v. Payne, 114 Ohio St.3d 502, 506, 2007-Ohio-

4642, 873 N.E.2d 306. The state offers no support for its proposition, nor can we

locate any. Therefore, we cannot determine that Taylor waived application of R.C.

2929.2o.

       {¶10} In conclusion, we reverse the judgment of the trial court and remand

the matter for resentencing in accordance with this opinion. Moreover, the record

demonstrates that the judgment entry from which Taylor appealed contains a clerical

error. The judgment entry indicates that Taylor was sentenced in count one on an

aggravated-robbery offense; however, our review of the record indicates that count

one of the indictment had been amended at the time of Taylor’s original sentencing

from aggravated robbery, a felony of the first degree, to robbery, a third-degree

felony. Therefore, on remand, the judgment entry should be corrected to reflect the

amended offense.

                                                Judgment reversed and cause remanded.

HILDEBRANDT, P.J., and DINKELACKER, J., concur.


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




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