[Cite as State v. Harp, 2017-Ohio-9096.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2016-11-072

                                                  :            OPINION
    - vs -                                                     12/18/2017
                                                  :

DONALD KEITH HARP,                                :

        Defendant-Appellant.                      :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2014 CR 00499



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Scott N. Blauvelt, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-
appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Donald K. Harp, appeals from the decision of the

Clermont County Court of Common Pleas sentencing him to serve a mandatory term of 36

months in prison after resentencing following his plea of no contest to one count of illegal

assembly or possession of chemicals for the manufacture of methamphetamine. For the

reasons outlined below, we affirm.
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      {¶ 2} We have previously detailed the facts of Harp's case as follows:

      {¶ 3} On September 4, 2014, the Clermont County Grand Jury returned an indictment

charging Harp with one count of illegal assembly or possession of chemicals for the

manufacture of drugs in violation of R.C. 2925.041(A), a third-degree felony. According to

the bill of particulars, the charges stemmed from allegations that on January 4, 2014, police

observed Harp purchasing items commonly used in the manufacture of methamphetamine

from a Meijer store located in Milford, Clermont County, Ohio. Police stopped Harp and

found him to be in possession of numerous items necessary for the manufacture of

methamphetamine. Harp admitted the same. It is undisputed that Harp had prior convictions

for trafficking in marijuana in violation of R.C. 2925.03(A)(1), a fourth-degree felony;

possession of marijuana in violation of R.C. 2925.11(A), a third-degree felony; and illegal

assembly or possession of chemicals for the manufacture of methamphetamine in violation

of R.C. 2925.041(A), also a third-degree felony.

      {¶ 4} On September 10, 2014, Harp entered a plea of not guilty. However, on

October 8, 2015, after the trial court decided a number of other issues not relevant to this

appeal, Harp withdrew his not guilty plea and entered a plea of no contest to the single

charged offense. After accepting Harp's no contest plea, the trial court found Harp guilty as

charged. The trial court then held a sentencing hearing and sentenced Harp to serve a

mandatory term of 36 months in prison. In so holding, the trial court stated that it was

required to impose a mandatory 36-month prison sentence in light of this court's decision in

State v. Young, 12th Dist. Warren No. CA2014-05-074, 2015-Ohio-1347, a decision that

addressed a similarly situated defendant found guilty of illegal assembly or possession of

chemicals for the manufacture of methamphetamine.

      {¶ 5} As further discussed below, Harp appealed from the trial court's sentence

arguing the trial court erred by misinterpreting our decision in Young as requiring it to
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sentence him to a mandatory term of 36 months in prison. State v. Harp, 12th Dist. Clermont

No. CA2015-12-096, 2016-Ohio-4921, ¶ 6 (Harp I). This court sustained Harp's sole

assignment of error and reversed and remanded the case for resentencing. Id. at ¶ 16.

       {¶ 6} On remand, the trial court found it was required to sentence Harp to a

mandatory prison term, and thereafter, sentenced Harp to a mandatory prison term of 36

months. Harp timely appealed.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT ERRED IN IMPOSING A MANDATORY PRISON TERM

WHICH SENTENCE WAS CONTRARY TO LAW.

       {¶ 9} Harp contends the trial court misinterpreted our holdings in Young and Harp I

upon remand, leading to its imposition of a sentence clearly and convincingly contrary to law.

Harp argues the pertinent statutory provisions further conflict beyond the conflict we found in

Young and Harp I, and therefore, the rule of lenity required the trial court to make a finding

against the imposition of a mandatory prison term.

       {¶ 10} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; accord State v. Crawford, 12th

Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to R.C. 2953.08(G)(2),

when hearing an appeal of a trial court's felony sentencing decision, "[t]he appellate court

may increase, reduce, or otherwise modify a sentence that is appealed under this section or

may vacate the sentence and remand the matter to the sentencing court for resentencing."

       {¶ 11} As explained in Marcum, "[t]he appellate court's standard for review is not

whether the sentencing court abused its discretion." Marcum at ¶ 9. Rather, pursuant to

R.C. 2953.08(G)(2), an appellate court may only "increase, reduce, or otherwise modify a

sentence * * * or may vacate the sentence and remand the matter to the sentencing court for

resentencing" if the court finds by clear and convincing evidence "(a) [t]hat the record does
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not support the sentencing court's findings[,]" or "(b) [t]hat the sentence is otherwise contrary

to law." R.C. 2953.08(G)(2)(a)-(b). A sentence is not "clearly and convincingly contrary to

law where the trial court considers the principles and purposes of R.C. 2929.11, as well as

the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the

defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No.

CA2015-06-100, 2016-Ohio-2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No.

CA2014-02-016, 2014-Ohio-5191, ¶ 6.

       {¶ 12} Our opinions in Young and Harp I previously analyzed the available sentences

a trial court may impose for a similarly situated defendant found guilty of illegal assembly or

possession of chemicals for the manufacture of methamphetamine.                  Specially, R.C.

2929.14(A)(3), which governs prison terms for third-degree felonies, states:

              (a) For a felony of the third degree that is a violation of [R.C.]
              2903.06, 2903.08, 2907.03, 2907.04, 2907.05, or 3795.04 * * * or
              that is a violation of [R.C.] 2911.02 or 2911.12 * * * if the offender
              previously has been convicted of or pleaded guilty in two or more
              separate proceedings to two or more violations of [R.C.] 2911.01,
              2911.02, 2911.11, or 2911.12 * * *, the prison term shall be
              twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-
              eight, fifty-four, or sixty months.

              (b) For a felony of the third degree that is not an offense for
              which division (A)(3)(a) of this section applies, the prison term
              shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six
              months.

"The statutory provisions listed in R.C. 2929.14(A)(3)(a) refer to certain vehicular offenses,

certain sexual offenses, * * * robbery[,] and burglary." Harp I, 12th Dist. Clermont No.

CA2015-12-096, 2016-Ohio-4921 ¶ 9.            Thus, "illegal assembly of chemicals for the

manufacture of drugs i[s] not an offense listed in R.C. 2929.14(A)(3)(a)" and Harp's

"maximum sentence for violating R.C. 2925.041" pursuant to R.C. 2929.14(A)(3)(a) and (b)

"would be 36 months in prison." Id.

       {¶ 13} R.C. 2925.041 governs illegal assembly of chemicals for the manufacture of
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drugs and states, in relevant part:

              (C) Whoever violates this section is guilty of illegal assembly or
              possession of chemicals for the manufacture of drugs. Except
              as otherwise provided in this division, illegal assembly or
              possession of chemicals for the manufacture of drugs is a felony
              of the third degree, and * * * the court shall impose a mandatory
              prison term * * * as follows:

              (1) Except as otherwise provided in this division, there is a
              presumption for a prison term for the offense. * * * If the offender
              two or more times previously has been convicted of or pleaded
              guilty to a felony drug abuse offense and if at least one of those
              previous convictions or guilty pleas was to a violation of division
              (A) of this section, a violation of [R.C. 2919.22(B)(6)] * * * , or a
              violation of [R.C. 2925.04(A)], the court shall impose as a
              mandatory prison term one of the prison terms prescribed for a
              felony of the third degree that is not less than five years.

       {¶ 14} Thus, "pursuant to R.C. 2925.041(C)(1), [Harp's] mandatory sentence for

violating R.C. 2925.041 would be [five years] in prison." Harp I at ¶ 9, citing Young, 12th

Dist. Warren No. CA2014-05-074, 2015-Ohio-1347, ¶ 38-41. Accordingly, in Harp I, we

found a conflict existed between the length of a possible sentence for Harp's third-degree

felony conviction pursuant to R.C. 2925.041(C)(1) and R.C. 2929.14(A)(3). Harp I at ¶ 14,

discussing Young at ¶ 46. This court further found the circumstances of this case mirrored

the circumstances of Young, and therefore, applied the rule of lenity to resolve the conflict.

Id. at ¶ 15. R.C. 2901.04(A) codifies the rule of lenity and provides that "sections of the

revised Code defining offenses or penalties shall be strictly construed against the state, and

liberally construed in favor of the accused." Accordingly, we found the trial court may

"exercise its discretion" in resentencing Harp to one of the prison terms set forth in R.C.

2929.14(A)(3)(b) up to 36 months. Harp I at ¶ 12.

       {¶ 15} As stated above, upon remand, the trial court sentenced Harp to a mandatory

36-month prison term. Thereafter, the focus of Harp's arguments shifted from the length of

the prison term to whether the prison term must be mandatory. Harp contends the differing


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language of R.C. 2925.041(C)(1) and R.C. 2929.14(A)(3)(a)-(b) demonstrates the statutes

provide authority for the imposition of mandatory prison terms in the former, but not the latter.

Specifically, R.C. 2915.041(C)(1) states, in pertinent part, "the court shall impose as a

mandatory prison term * * *[,]" whereas, R.C. 2929.14(A)(3)(a)-(b) does not contain such

language.

       {¶ 16} Harp further contends R.C. 2925.041(C)(1) conflicts with R.C. 2929.13(F),

which sets forth a list of offenses requiring imposition of mandatory prison terms.

Specifically, Harp cites R.C. 2929.13(F)(5), which provides a list of felony drug offenses

requiring imposition of mandatory prison terms. In so doing, Harp contends the absence of

R.C. 2925.041 from the list in R.C. 2929.13(F)(5) creates a conflict between the two statutes

regarding whether to impose a mandatory prison term. Therefore, Harp argues the rule of

lenity should likewise apply to this asserted conflict and result in a finding that a prison term

for violating R.C. 2925.041(C) not be mandatory. Collectively, Harp contends this court

should resolve the two asserted conflicts by using the rule of lenity to find that Harp's

sentence was clearly and convincingly contrary to law because the trial court "employed a

sentencing hybrid between [R.C.] 2929.14(A)(3)(b) and R.C. 2925.041(C)(1)[, which] * * *

required [it] to impose a prison term within the range provided" by the former, which is

"mandatory" pursuant to the latter.

       {¶ 17} Harp cites our opinions in Young and Harp I and a Fourth District opinion that

followed our reasoning in Young to support his conflict arguments. However, the case law

cited by Harp only concerns the length of a prison term authorized for the present offense in

light of the conflict between R.C. 2925.041(C)(1) and R.C. 2929.14(A)(3)(b). As discussed

above, Harp I concerned only whether Young interpreted the two statutes as requiring that a

three-year prison term be imposed, and thus, providing the trial court with no discretion to

impose a prison term of a different duration within R.C. 2929.14(A)(3)(b). The case law cited
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by Harp does not address the issue of whether the mandatory prison term requirement in

R.C. 2925.041(C)(1) conflicts with R.C. 2929.14(A)(3)(b) or R.C. 2929.13(F). State v. Payne,

114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 11 ("[a] reported decision, although a case where the

question might have been raised, is entitled to no consideration whatever as settling * * * a

question not passed upon or raised at the time of the adjudication").

       {¶ 18} Next, we turn to the plain language of the statutes to fully address Harp's

conflict arguments. R.C. 2929.14(A)(3)(b) does not specifically provide whether the prison

terms authorized therein for third-degree felony offenses are to be mandatory. Rather, R.C.

2929.14(A)(3)(b) exclusively addresses the duration of prison terms of third-degree felonies.

Whereas, R.C. 2925.041(C)(1) does provide guidance for a trial court to impose a mandatory

prison term for a violation thereof. However, contrary to Harp's assertion otherwise, we do

not find a conflict in the two statutes based on the mere fact that one references mandatory

prison terms, while the other concerns the length of prison terms without specifically

addressing whether the sentences are mandatory or non-mandatory. To find otherwise

would result in statutory conflicts for all third-degree felonies prescribing mandatory prison

terms. Rather, R.C. 2925.041(C)(1) provides guidance for the trial court in imposing a

mandatory prison term within the parameters prescribed by R.C. 2929.14(A)(3)(b) for third-

degree felonies. Therefore, no ambiguity exists in the statutes with respect to mandatory

prison terms and the rule of lenity need not be applied. State v. Sheets, 12th Dist. Clermont

No. CA2006-04-032, 2007-Ohio-1799, ¶ 28.

       {¶ 19} Harp argues a second statutory conflict exists between R.C. 2925.041(C)(1)

and R.C. 2929.13(F) because the latter lists certain felony drug offenses requiring the

imposition of mandatory prison, and notably, does not include the former. Harp asserts the

plain language of R.C. 2929.13(F) does not provide authority to a trial court to impose

mandatory prison terms for a violation of R.C. 2925.041(C)(1). However, R.C. 2929.13(F)
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does not prevent the General Assembly from providing additional statutory authority

elsewhere within the revised code for the imposition of mandatory prison terms. Rather, the

General Assembly did such with respect to R.C. 2925.041(C)(1) by specifically providing

such authority to the trial court. Thus, the two statutes do not conflict with one another, but

rather, concurrently provide trial courts with authority to impose mandatory prison terms for

the offenses listed therein.

       {¶ 20} Accordingly, we find that R.C. 2925.041(C)(1) neither conflicts with R.C.

2929.14(A)(3)(b) nor R.C. 2929.13(F). The trial court sentenced Harp to a 36-month

mandatory prison term within the parameters of the relevant statutes; therefore, Harp's

sentence is not clearly and convincingly contrary to law and Harp's sole assignment of error

is hereby overruled.

       {¶ 21} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J.




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