[Cite as State v. Watters, 2018-Ohio-4565.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                       :

                 Plaintiff-Appellee,                 :               No. 18AP-140
                                                                  (C.P.C. No. 16CR-3623)
v.                                                   :
                                                                (REGULAR CALENDAR)
Dametrius Watters,                                   :

                 Defendant-Appellant.                :



                                              D E C I S I O N

                                   Rendered on November 13, 2018


                 On brief: Ron O'Brien, Prosecuting                  Attorney,    and
                 Barbara A. Farnbacher, for appellee.

                 On brief: The Law Office of Thomas F. Hayes, LLC, and
                 Thomas F. Hayes, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Dametrius Watters, appeals from a judgment entry of
the Franklin County Court of Common Pleas finding him guilty of one count of improperly
discharging a firearm at or into a habitation or school safety zone, one count of discharging
a firearm on or near prohibited premises, one count of improperly handling firearms in a
motor vehicle, and one count of having a weapon while under disability. The first count
contained an accompanying drive-by shooting specification, and the first three counts each
contained accompanying three-year firearm specifications. Because the trial court erred in
imposing a three-year firearm specification on Count 3, improperly handling firearms in a
motor vehicle, we reverse.
No. 18AP-140                                                                                2


I. Facts and Procedural History
          {¶ 2} By indictment filed July 1, 2016, plaintiff-appellee, State of Ohio, charged
Watters with one count of improperly discharging a firearm at or into a habitation or school
safety zone in violation of R.C. 2923.161, a second-degree felony, along with an
accompanying three-year firearm specification pursuant to R.C. 2941.145(A) and a five-
year drive-by shooting specification pursuant to R.C. 2941.146(A); one count of discharging
a firearm on or near prohibited premises in violation of R.C. 2923.162, a third-degree
felony, along with an accompanying three-year firearm specification pursuant to R.C.
2941.145(A); one count of improperly handling firearms in a motor vehicle in violation of
R.C. 2923.16, a fourth-degree felony, along with an accompanying three-year firearm
specification pursuant to R.C. 2941.145(A); and two counts of having weapons while under
disability in violation of R.C. 2923.13, both third-degree felonies. The charges stemmed
from a drive-by shooting into a house on June 23, 2016. Watters entered a plea of not
guilty.
          {¶ 3} Following a trial conducted November 13-16, 2017, a jury found Watters
guilty of improperly discharging a firearm at or into a habitation or school safety zone,
discharging a firearm on or near prohibited premises, and improperly handling firearms in
a motor vehicle, along with all accompanying specifications. Watters waived his right to a
jury trial on the having a weapon while under disability charges, and the trial court found
Watters guilty of one count of having a weapon while under disability and entered a nolle
prosequi to the remaining count of having a weapon while under disability.
          {¶ 4} At a December 13, 2017 sentencing hearing, the trial court sentenced Watters
to three years on the charge of improperly discharging a firearm at or into a habitation or
school safety zone, plus three years on the firearm specification and five years on the drive-
by shooting specification; merged the count of discharging a firearm on or near prohibited
premises with Count 1; one year on the charge of improperly handling firearms in a motor
vehicle, plus three years on the firearm specification; and three years on the charge of
having a weapon while under disability. Additionally, the trial court imposed a three-year
period of post-release control. The court ordered the sentences on the base offenses to be
concurrent and for the mandatory specifications to be consecutive for an aggregate prison
term of 11 years. Additionally, the trial court ordered the sentences in this case to run
No. 18AP-140                                                                                  3


consecutive to the sentences imposed for Watters convictions in Franklin C.P. No. 16CR-
3569. The trial court journalized Watters' convictions and sentence in a January 26, 2018
judgment entry. Watters timely appeals.
II. Assignment of Error
       {¶ 5} Watters assigns the following error for our review:
              On Count 3, the court imposed a three-year sentence for the
              firearm specification.

III. Analysis – Sentencing for Firearm Specification
       {¶ 6} In his sole assignment of error, Watters argues the trial court erred in
imposing a three-year firearm specification on his conviction for Count 3 of the indictment,
improperly handling a firearm in a motor vehicle.
       {¶ 7} An appellate court will not reverse a trial court's sentencing decision unless
the evidence is clear and convincing that either the record does not support the sentence or
that the sentence is contrary to law. State v. Chandler, 10th Dist. No. 04AP-895, 2005-
Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-1271, 2004-Ohio-5660, ¶ 27,
citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, ¶ 10. See also State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1 ("an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that the record
does not support the trial court's findings under relevant statutes or that the sentence is
otherwise contrary to law").
       {¶ 8} A jury found Watters guilty to Count 3 of the indictment, improperly handling
a firearm in a motor vehicle, in violation of R.C. 2923.16. The trial court then sentenced
Watters to 12 months in prison on the base offense along with an additional 3 years
pursuant to the accompanying firearm specification. R.C. 2929.14(B)(1)(a) and (b) outline
the mandatory prison sentences for accompanying firearm specifications.              However,
pursuant to R.C. 2929.14(B)(1)(e), "[t]he court shall not impose any of the prison terms
described in division (B)(1)(a) or (b) of this section upon an offender for a violation of * * *
[R.C.] 2923.16," the improperly handling a firearm in a motor vehicle statute. The state
concedes it was error for the trial court to impose a prison sentence for the firearm
specification accompanying Watters' conviction for improperly handling a firearm in a
motor vehicle. See State v. Wright, 10th Dist. No. 09AP-207, 2009-Ohio-6773, ¶ 32
No. 18AP-140                                                                             4


(former R.C. 2929.14(D)(1)(e), the equivalent of current R.C. 2929.14(B)(1)(e), precludes
the imposition of a firearm specification sentence on a conviction of improperly handling a
firearm in a motor vehicle).
       {¶ 9} Because the trial court erred in imposing the three-year sentence on the
firearm specification accompanying Watters' conviction of improperly handling a firearm
in a motor vehicle, that portion of Watters' sentence is contrary to law. Accordingly, we
remand the matter to the trial court for resentencing. We sustain Watters' sole assignment
of error.
IV. Disposition
       {¶ 10} Based on the foregoing reasons, the trial court erred in imposing a prison
sentence on the firearm specification accompanying Watters' conviction of improperly
handling a firearm in a motor vehicle. Having sustained Watters' sole assignment of error,
we reverse the judgment of the Franklin County Court of Common Pleas and remand this
matter to that court for resentencing in accordance with law and consistent with this
decision.
                                                    Judgment reversed; cause remanded.

                               TYACK and SADLER, JJ., concur.
