         [Cite as State v. Brown, 2016-Ohio-310.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                       :   APPEAL NO. C-130120
                                                        TRIAL NO. B-1201362
        Plaintiff-Appellee,                         :

  vs.                                               :
                                                            O P I N I O N.
MARQUES BROWN,                                      :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

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

Date of Judgment Entry on Appeal: January 29, 2016


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, 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}   In this reopened appeal, defendant-appellant Marques Brown presents

three assignments of error, challenging the trial court’s authority to limit his

participation in the earned-credits program, the transitional-control program, and

the judicial-release program as part of his sentence, which was jointly recommended

by the parties. Because we conclude that the trial court may not limit Brown’s

participation in the earned-credits program as a part of the sentence, even though

that condition was agreed upon, we vacate the offending portion of Brown’s sentence

and remand this matter to the trial court for the limited purpose of correcting the

judgment entry.

                      Background Facts and Procedure

       {¶2}   Brown was convicted in January 2013 upon his guilty plea to voluntary

manslaughter with a firearm specification. As part of his plea agreement, Brown and

the state agreed to a recommended nine-year prison term for the voluntary

manslaughter and a three-year prison term for the firearm specification, and that as

conditions of this aggregate 12-year term, nine years of which was nonmandatory,

Brown would not be eligible for earned days of credit, transitional control, or judicial

release, or any other sentence reduction or modification programs in prison.

       {¶3}   The trial court imposed the jointly-recommended aggregate 12-year

sentence and, consistent with the plea agreement, stated on the record that Brown

would be ineligible for earned days of credit, transitional control, judicial release,

and any other sentence reduction or modification programs in prison, and inserted

language to that effect into its judgment entry.

       {¶4}   Brown unsuccessfully challenged his conviction in a direct appeal to

this court. See State v. Brown, 1st Dist. Hamilton No. C-130120 (Nov. 5, 2014). But

in April 2015, we granted Brown’s App.R. 26(B) application to reopen his appeal.

We reopened the appeal upon our determination that Brown’s appellate counsel had



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been ineffective in failing to present an assignment of error, based upon State v.

Livington, 2014-Ohio-1637, 9 N.E.3d 1117 (1st Dist.), challenging the trial court’s

statutory authority to limit his eligibility to earn days of credit under R.C. 2967.193

as a part of its sentence.

       {¶5}    Brown advances that assignment of error in his reopened appeal. In

addition, he advances two others, challenging the trial court’s authority to limit his

eligibility for transitional control under R.C. 2967.26, and his eligibility for judicial

release under R.C. 2929.20, as a part of its sentence.

                               Standard of Review

       {¶6}    This case involves the review of an agreed-upon sentence as

contemplated by R.C. 2953.08(D)(1), because the trial court imposed the sentence

with the now challenged conditions after both Brown and the state had

recommended it. R.C. 2953.08(D)(1) bars appellate review of a sentence that was

jointly recommended by the state and defendant unless the sentence is not

“authorized by law.” See Livingston at ¶ 4, citing State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 14-16.

       {¶7}    R.C. 2953.08(D)(1) bars appeals that challenge the trial court’s

discretion in imposing sentence, and sentences that are merely “contrary to law.”

Underwood at ¶ 21-22.        Such sentences are protected from appellate review

“ ‘precisely because the parties agreed that the sentence is appropriate.’ ”

Underwood at ¶ 27, quoting State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095,

829 N.E.2d 690, ¶ 25.

       {¶8}    But “[j]udges have no inherent power to create sentences,” State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, cited in State v.

Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 12. Therefore, a court

may only impose a sentence that is provided for by the legislature—by statute. Id.

An agreed sentence is not authorized by law, and thus exempt from the restriction of



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R.C. 2953.08(D)(1), if “no statute instructs or permits it,” Livingston, 2014-Ohio-

1637, 9 N.E.3d 1117, at ¶ 6, or if it fails to “comport[] with all mandatory sentencing

provisions.” Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at

paragraph two of the syllabus.

       {¶9}   The issue in this appeal is whether the now challenged but jointly

recommended provisions in Brown’s sentence were permitted or instructed by

statute, and thus, authorized by law.

                            Earned-Credits Program

       {¶10} Ohio’s earned-credits program, governed by R.C. 2967.193, allows
eligible offenders as defined by statute to participate in Department of Rehabilitation

and Correction (“DRC”) programs so that they can earn days of credit “towards

satisfaction of their stated prison term.”    The legislature vested DRC with the

authority to deny eligible offenders the right to earn credits. See R.C. 2967.193;

Livingston at ¶ 7. Brown would be eligible for consideration with respect to the

prison term imposed for voluntary manslaughter.

       {¶11} In State v. Livingston, this court recognized that the statutory scheme
of R.C. 2967.193 does not provide the trial court with any discretion to determine

eligible offenders or to limit an eligible offender’s ability to earn days of credit.

Livingston, 2014-Ohio-1637, 9 N.E.3d 1117 at ¶ 8-10. We held that the trial court’s

lack of sentencing power over Livingston’s participation in the earned-credits

program rendered that part of the sentence unauthorized, even though the

restriction was part of an agreed sentence. Id. at ¶ 9. As a result, we entertained

Livingston’s challenge and vacated that part of his sentence prohibiting his

participation in the earned-credits program. Id. at ¶ 9-10.

       {¶12} The relevant facts of this case are indistinguishable from those in
Livingston, and the state concedes that appellate counsel’s representation was

deficient for failing to raise this issue in Brown’s direct appeal. Based upon



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Livingston, we hold that the trial court lacked authority to impose the part of the

sentence limiting Brown’s ability to earn days of credit, and sustain Brown’s first

assignment of error.

                          Transitional-Control Program

       {¶13} The legislature authorized DRC under R.C. 2967.26 to create a
transitional-control program for eligible prisoners nearing the end of their prison

terms to “closely monitor[]” the prisoners’ “adjustment to community supervision.”

Under this program, DRC selects the eligible offenders for participation.          R.C.

2967.26(A)(1).   But the trial court has the ultimate control over which eligible

offenders participate in the program.

       {¶14} Specifically, by statute, DRC must notify the trial court of a prisoner’s
impending transfer to the program. At that time, the court has full discretion to

disapprove the transfer. R.C. 2967.26(A)(2). Thus, unlike with participation in the

earned-credits program, the legislature has expressly conferred authority on the

judiciary to disallow a prisoner’s participation in the transitional-control program.

       {¶15} Brown takes issue with the timing of the trial court’s disapproval. He
contends that the court must wait to disapprove of his participation in the program,

which could only occur with respect to his imprisonment for voluntary

manslaughter, until it receives a notification from the DRC that he is to be

transferred to the program based upon his conduct in prison. He suggests that

allowing the trial court to deny transitional control in advance defeats the purpose of

the statute. In support, he cites State v. Spears, 5th Dist. Licking No. 10-CA-95,

2011-Ohio-1538. That court held that denying transitional control in the sentencing

entry “clearly thwarts the design and purpose of the statute,” which is “to promote

prisoner rehabilitation effort and good behavior while incarcerated.” Id. at ¶ 37.

And Brown claims that no statutory provision specifically authorizes a trial court to

deny access to transitional control as a part of the sentence.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} But it is undisputed that the trial court has the statutory authority and
wide discretion to disapprove and ultimately block Brown’s participation in the

program as part of its sentencing powers.        And, unlike the defendant in Spears,

Brown agreed that he would not be able to participate in this program as a condition

of his 12-year prison term. We conclude that R.C. 2967.26 permits the restriction as

part of the sentence under these circumstances. We hold, therefore, that this part of

Brown’s sentence was authorized by law.          Accordingly, we overrule the second

assignment of error.

                                  Judicial Release

       {¶17} R.C. 2929.20 permits the trial court to “reduce” the “stated prison
term” of an “eligible offender” through judicial release. If judicial release is granted,

the court “shall order the release of the []offender,” “shall place the []offender under

an appropriate community control sanction” and shall reserve the right to reimpose

the reduced sentence if the offender violates the conditions of community control.

R.C. 2929.20(K). Although eligibility for judicial release in the first instance is set by

statute, see R.C. 2929.20(A), the trial court determines which eligible offenders may

have their stated prison terms modified. See R.C. 2929.20(B).

       {¶18} Brown contends that he would have been eligible for judicial release at
some point during his incarceration based on the statutory requirements, and notes

that R.C. 2929.20 grants the court the authority to deny judicial release only after a

motion has been filed. He argues, therefore, that his sentence was unauthorized by

law because the trial court declared him ineligible for judicial release as a part of its

sentence, before he had an opportunity to prove the appropriateness of judicial

release.

       {¶19} As recognized by Brown, however, the legislature has vested the trial
court by statute with the authority to deny Brown judicial release. Thus, we hold that

the trial court has sentencing powers with respect to judicial release, like with



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                     OHIO FIRST DISTRICT COURT OF APPEALS



transitional control, but unlike with earned days of credit. In addition, Brown agreed

that he would not be eligible to partake in judicial release as a condition of his 12-

year prison term. Given the trial court’s authority and broad discretion in this area,

we conclude that R.C. 2929.20 permits the restriction as part of the sentence under

these circumstances.    We hold, therefore, that this portion of the sentence was

authorized by law. Accordingly, we overrule the third assignment of error.

                                      Conclusion

       {¶20} The portion of the sentence prohibiting Brown from earning days of
credit in prison was not authorized by law, and appellate counsel was deficient for

not raising this issue in Brown’s direct appeal. To remedy the defect in Brown’s

sentence, we apply the remedy set forth in Livingston, 2014-Ohio-1637, 9 N.E.3d

1117 at ¶ 10. Thus, we vacate that portion of Brown’s sentence and remand this

matter to the trial court for the limited purpose of correcting the judgment. The trial

court’s judgment is affirmed in all other respects.

                      Affirmed in part, sentence vacated in part, and cause remanded.



FISCHER 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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