[Cite as State v. Cox, 2012-Ohio-3158.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97924



                                      STATE OF OHIO
                                               PLAINTIFF-APPELLANT

                                                 vs.

                                      HARLEN G. COX
                                               DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-554823

        BEFORE:           Cooney, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 12, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

By: T. Allan Regas
Andrew Rogalski
Assistant County Prosecutors
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Chief Public Defender

Anduena Dobroshi
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:

      {¶1} Plaintiff-appellant, the state of Ohio (“the State”), appeals the trial court’s

sentencing defendant-appellee, Harlen Cox (“Cox”), to a two-day jail term with credit for

two days served.   Finding merit to the appeal, we reverse and remand for resentencing.

      {¶2} In October 2011, Cox was indicted for possession of cocaine and

possession of criminal tools. In December 2011, Cox pled guilty to drug possession in

violation of R.C. 2925.11(A), a fifth degree felony. The second count was nolled, and a

presentence investigation report was ordered.   In January 2012, the court sentenced Cox

to two days in county jail, with credit for two days served, and ordered the forfeiture of

his cell phone and $1,127 in cash. The court waived fines, fees, and court costs.

      {¶3} The State now appeals, arguing in its sole assignment of error that the trial

court erred by imposing a sentence of two days in jail for the offense of drug possession

when Ohio law requires the imposition of either 1) a prison sentence, or 2) a community

control sanction as well as mandatory driver’s license suspension.

      {¶4} Cox was sentenced in January 2012, after H.B. 86 went into effect on

September 30, 2011. Pursuant to H.B. 86, R.C. 2929.13 contains no prison requirement

for fourth and fifth degree felonies but instead creates a preference for community control

sanctions for crimes that meet certain criteria.     The statute further specifies that a

sanction of community control must be imposed for at least one year.                  R.C.

2929.13(B)(1) states:
       (a) Except as provided in division (B)(1)(b) of this section, if an offender is
       convicted of or pleads guilty to a felony of the fourth or fifth degree that is
       not an offense of violence, the court shall sentence the offender to a
       community control sanction of at least one year’s duration if all of the
       following apply:

       (i) The offender previously has not been convicted of or pleaded guilty to a
       felony offense or to an offense of violence that is a misdemeanor and that
       the offender committed within two years prior to the offense for which
       sentence is being imposed.

       (ii) The most serious charge against the offender at the time of sentencing is
       a felony of the fourth or fifth degree.

       (iii) If the court made a request of the department of rehabilitation and
       correction pursuant to division (B)(1)(c) of this section, the department,
       within the forty-five-day period specified in that division, provided the
       court with the names of, contact information for, and program details of one
       or more community control sanctions of at least one year’s duration that are
       available for persons sentenced by the court.

(Emphasis added.)

       {¶5} In the instant case, because all of the elements of R.C. 2929.13(B)(1)(a)(i-iii)

apply, a community control sanction is an acceptable and appropriate sentence.

However, the trial court was bound by R.C. 2929.13(B)(1)(a) to sentence Cox to at least a

one-year term of community control sanctions.

       {¶6} Furthermore, the trial court erred in failing to suspend Cox’s driver’s license

for at least six months. R.C. 2925.11(E)(2) provides that in addition to any prison term

or other sanction imposed under this section, the court shall suspend for not less than six

months or more than five years the driver’s license of an offender who is convicted of or

pleads guilty to a violation of division (A) of this section.          “A driver’s license
suspension is required by law to be part of an offender’s sentence.” State v. Harris, Slip

Opinion No. 2012-Ohio-1908, ¶ 14 (Lanzinger, J., dissenting).

       {¶7} The trial court’s imposition of a two-day jail term with credit for time served

and failure to suspend Cox’s driver’s license was contrary to law. Accordingly, the sole

assignment of error is sustained.

       {¶8} Judgment reversed and case remanded for resentencing pursuant to this

opinion.

       It is ordered that appellant recover of said appellee 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.

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

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
