[Cite as State v. Mitchell, 2014-Ohio-3444.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                         C.A. No.       13CA010427

          Appellant

          v.                                          APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RODNEY L. MITCHELL                                    COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
          Appellee                                    CASE No.   12CR085388


                                  DECISION AND JOURNAL ENTRY

Dated: August 11, 2014




          BELFANCE, Presiding Judge.

          {¶1}     The State appeals the order of the Lorain County Court of Common Pleas

granting Rodney Mitchell judicial release. For the reasons set forth below, we dismiss the

appeal.

                                                 I.

          {¶2}   Mr. Mitchell pleaded guilty to unlawful sexual conduct with a minor, a felony of

the third-degree. On November 21, 2012, the trial court sentenced him to four years in prison,

and Mr. Mitchell was delivered to prison on November 27, 2012. On January 31, 2013, Mr.

Mitchell filed a motion for judicial release, which the State opposed.       On May 24, 2013,

following a hearing, the trial court granted Mr. Mitchell’s motion for judicial release. The State

has appealed, raising a single assignment of error for our review.
                                                 2


                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING RODNEY MITCHELL’S
       PREMATURE MOTION FOR JUDICIAL RELEASE PURSUANT TO R.C.
       2929.20(C)(2).

       {¶3}    This Court must sua sponte raise issues related to its jurisdiction. Whitaker-

Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972). The trial court granted

Mr. Mitchell’s motion for judicial release, thus modifying his sentence for his third-degree

felony conviction. Pursuant to R.C. 2953.08(B)(3), the State may only appeal “a modification

under section 2929.20 of the Revised Code of a sentence that was imposed for a felony of the

first or second degree.” Furthermore, “R.C. 2953.08(B)(2) does not authorize a prosecuting

attorney to appeal the modification of a sentence granting judicial release for a felony of the

third, fourth, or fifth degree.” State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245,

paragraph one of the syllabus.

       {¶4}    In Cunningham, the Ohio Supreme Court was faced with the issue as to whether

the State could appeal an order granting judicial release from a felony of the fifth degree under

circumstances where a judicial release motion had been filed, withdrawn, and then reinstated.

See id. at paragraph two of the syllabus. Ms. Cunningham filed a motion for judicial release but

sought to withdraw the motion before the trial court ruled, which the trial court granted. Id. at ¶

3. Ms. Cunningham subsequently filed a second motion for judicial release. Id. During the

pendency of the second motion for judicial release, she then moved for reinstatement of her first

motion for judicial release, which the trial court granted, and the trial court granted the original

motion for judicial release. Id. The State appealed, and the appellate court dismissed the appeal,
                                                  3


holding that it did not have jurisdiction to hear appeals involving the granting of judicial release

for felonies of the third, fourth, or fifth degrees under R.C. 2953.08(B). Id. at ¶ 3-4.

       {¶5}     On appeal to the Ohio Supreme Court, the State argued that, because Cunningham

did not file her motion for judicial release in a timely manner, the sentence modification was

contrary to law and, thus, it was permitted to appeal under R.C. 2953.08(B)(2). Id. at ¶ 12. It

also argued that the trial court lacked jurisdiction to reinstate Cunningham’s first motion for

judicial release and, therefore, the modification was contrary to law and, thus, appealable under

R.C. 2953.08(B)(2).1 Id.

       {¶6}     The Ohio Supreme Court rejected both of the State’s propositions.                 See

Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, at ¶ 22, 24. In concluding that the State did

not have a right of appeal, the Court compared R.C. 2953.08(B)(2) with 2953.08(B)(3) and

found the General Assembly’s prohibition of appeal from sentence modification orders regarding

felonies of the third, fourth and fifth degree was not merely an oversight. Id. at ¶ 13, 19. In

reaching this conclusion, the court observed that the plain language of R.C. 2953.08(B)(3)

specifically provides for the state to have a right of appeal only from orders granting judicial

release for felonies of the first and second degree. Id. at ¶ 20. It also observed that the General

Assembly established two different time periods for filing a motion for judicial release, one

involving felonies of the first, second, and third degree and one for felonies of the fourth and

fifth degree.   Id. at ¶ 21.    However, notwithstanding those specified time periods, when

determining whether to allow a right of appeal, it limited the right to only felonies of the first and

second degree. Id.



       1
          It alternatively argued that, even if the trial court had jurisdiction to reinstate the
original motion for judicial release, the trial court abused its discretion in granting it.
                                                 4


       {¶7}    The State also argued that it could appeal the trial court’s reinstatement of the

original motion for judicial release as contrary to law under R.C. 2953.08(B)(2). Id. at ¶ 22.

However, the Supreme Court disagreed, noting that a “careful examination of 2953.08(B)(2),

however, reveals that it does not refer to the modification of a sentence; rather, it authorizes the

prosecuting attorney to appeal, as a matter of right, a sentence imposed on a defendant on the

grounds that ‘[t]he sentence is contrary to law.’” (Emphasis in original) Id. “Thus, it does not

apply to a modification of a sentence that is allegedly contrary to law.” (Emphasis added.). Id.

       {¶8}     In this case, the State is attempting to appeal the trial court’s order granting

judicial release with respect to a third-degree felony. However, based upon R.C. 2953.08(B)(3)

and Cunningham, the State does not have a right of appeal. We recognize the factual distinction

that, in Cunningham, the original motion was brought within the appropriate statutory time

parameters. See id. at ¶ 26. However, although the State also advanced a jurisdictional argument

in Cunningham, contending that the trial court lacked jurisdiction to reinstate Cunningham’s first

motion for judicial release, the Court rejected the argument. Id. at ¶ 25. It acknowledged that,

in State v. Beasley, 14 Ohio St.3d 74, 75 (1984), it had held that “‘any attempt to disregard

statutory requirements when imposing a sentence renders that attempted sentence a nullity or

void.’” Cunningham at ¶ 23, quoting Beasley at 75. It further acknowledged that “a trial court

may grant judicial release and modify a sentence only as provided by statute.” Id. at ¶ 23.

However, it concluded that, given the “narrow facts” of the case before it, the trial court did not

disregard the statutory requirements in modifying Cunningham’s sentence because “Cunningham
                                                  5


complied with the time parameters in R.C. 2929.20(B)(1)(a) in filing her original motion on

February 20, 2004, vesting the trial court with jurisdiction at that time.” Id. at ¶ 24.2

       {¶9}    Thus, the Cunningham court did not go so far as to declare that an order

modifying a sentence based upon a motion filed outside of the prescribed statutory time

parameters was void, and, therefore, this question still remains open for the Ohio Supreme Court

to determine in the future. Nevertheless, nothing in Cunningham expressly limits the scope of its

holding as stated in its syllabus. Thus, given the limited right of appeal set forth in R.C.

2953.08(B)(3), we conclude that the State is not permitted to bring this appeal given that Mr.

Mitchell was convicted of a third-degree felony. See R.C. 2953.08(B)(3) and Cunningham, 113

Ohio St.3d 108, 2007-Ohio-1245, at paragraph one of the syllabus.3

       {¶10} Accordingly, the appeal is dismissed.

                                                 III.

       {¶11} For the foregoing reasons, we dismiss the State’s attempted appeal.

                                                                                   Appeal dismissed.




       2
           Thus, it further concluded that, because the trial court had jurisdiction through
Cunningham’s initial motion for judicial release, it also had “inherent authority and wide
discretion in exercising its duty to administer proceedings.” (Internal quotations and citation
omitted.) Id. at ¶25. It ultimately concluded that the trial court did not abuse its discretion in
permitting the reinstatement of the original motion for judicial release. Id. at ¶ 26.
        3
          We note that it is possible that the General Assembly may have considered that the State
could avail itself of other remedies when faced with a statutorily improper motion for judicial
release concerning felonies of third, fourth and fifth degree. See, e.g., State ex rel. DeWine v.
Burge, 128 Ohio St.3d 236, 2011-Ohio-235, ¶ 7. This would comport with the plain language of
the statute while at the same time leaving the State free to pursue other remedies if the trial court
acts in contravention to R.C. 2929.20 under circumstances where the State has no adequate
remedy at law.
                                                 6


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE BELFANCE
                                                     FOR THE COURT




HENSAL, J.
CONCURS

CARR, J.
DISSENTING:

       {¶12} As I do not believe that the State is attempting to appeal a modification of

Mitchell’s sentence, I respectfully dissent.

       {¶13} The majority relies on State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-

1245, in support of its decision to dismiss the State’s appeal for lack of a final, appealable order

because the trial court granted Mitchell judicial release arising out of a sentence imposed for a

felony of the third degree. R.C. 2953.08(B)(3) permits the State to appeal modifications of

sentences imposed only for felonies of the first and second degrees. While I agree that this Court

would lack jurisdiction to consider the State’s challenge to the substantive modification of a

sentence imposed for a felony of the third degree where the defendant timely moved for judicial
                                                7


release, that is neither the situation here nor representative of the Supreme Court’s holding in

Cunningham.

       {¶14} R.C. 2929.20(C) establishes precise time periods based on the duration of the

prison term imposed after which a defendant may file a motion for judicial release. When the

minimum time period has not yet elapsed, a motion for judicial release is premature and the trial

court lacks authority to consider it.      Whether a motion for judicial release is ripe for

consideration by the trial court is, therefore, a threshold issue to be determined before the trial

court may consider the substantive merits of the motion, i.e., whether modification of the

sentence is warranted. The Ohio Supreme Court understood this distinction when rendering its

opinion in Cunningham.

       {¶15} The Cunningham court could have affirmed the appellate court’s dismissal of the

State’s appeal from an order granting judicial release with regard to a sentence imposed for a

felony of the fifth degree with merely a citation to former R.C. 2953.08(B)(2) [now R.C.

2953.08(B)(3)] which permits State’s appeals from modifications of sentences imposed only for

felonies of the first and second degrees. It did not. Instead, the high court as a threshold matter

analyzed to determine whether Cunningham had filed a motion for judicial release that complied

with the statutory timing requirements. If a challenge to the authority of the trial court to

consider a motion for judicial release was subsumed within the court’s modification of the

sentence, then resolution of the State’s appeal would have been as simple as dismissal on the

basis of the limitations prescribed in R.C. 2953.08(B)(3). The high court recognized, however,

that the trial court’s authority to address a motion for judicial release is distinct from any

modification of the sentence.
                                                8


       {¶16} The holding in Cunningham is narrower than the majority acknowledges. The

defendant must timely file his motion for judicial release; where he has timely filed the motion

with regard to a sentence imposed for a felony of the third, fourth, or fifth degree, R.C.

2953.08(B)(2) negates the State’s ability to challenge the trial court’s modification on appeal.

See Cunningham at ¶ 26-28. I do not read Cunningham to foreclose the State’s ability to

challenge the trial court’s authority to consider a premature motion for judicial release.

Accordingly, as the State challenges the trial court’s authority to rule on the motion for judicial

release rather than the substantive modification of Mitchell’s sentence, I would address the

merits of the appeal. Moreover, because Mitchell was sentenced to a prison term of four years,

any motion for judicial release would not be ripe for the trial court’s consideration until one

hundred eighty days after he was delivered to the state correctional institution.             R.C.

2929.20(C)(2). Until that period elapsed, the trial court had no authority to consider the merits

of the motion. I would sustain the State’s assignment of error on that basis and reverse the trial

court’s judgment.


APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellant.

ANTHONY MANNING, Attorney at Law, for Appellee.
