[Cite as State v. Flanagan, 2012-Ohio-1516.]


                                       COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee      :      Hon. W. Scott Gwin, J.
                                               :      Hon. Julie A. Edwards, J.
-vs-                                           :
                                               :      Case No. 11-CA-83
MICHAEL FLANAGAN                               :
                                               :
                                               :
                      Defendant-Appellant      :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 11 CR 050


JUDGMENT:                                          AFFIRMED IN PART; REVERSED IN
                                                   PART AND SENTENCE MODIFIED



DATE OF JUDGMENT ENTRY:                            March 28, 2012



APPEARANCES:

For Appellant:                                        For Appellee:

WILLIAM T. CRAMER                                     KENNETH OSWALT
470 Olde Worthington Rd., Ste. 200                    LICKING COUNTY PROSECUTOR
Westerville, OH 43082
                                                      CHRISTOPHER REAMER
                                                      20 South Second St., 4th Floor
                                                      Newark, OH 43055
[Cite as State v. Flanagan, 2012-Ohio-1516.]


Delaney, J.

        {¶1} Defendant-Appellant Michael Flanagan appeals from the sentence

imposed by the Licking County Court of Common Pleas upon his conviction for one

count of receiving stolen property in an amount greater than $500 and less than

$5,000. Plaintiff-Appellee is the State of Ohio.

                             FACTS AND PROCEDURAL HISTORY

        {¶2} This case arose on January 12, 2011 when workers at Crispin’s Auto

Wrecking discovered that approximately 200 pounds of copper were missing from their

scrap yard.       The missing copper, graded “number one” (or highest quality), had

disappeared sometime the night before.

        {¶3} Crispin’s employees immediately called other local scrap yards in search

of the missing copper.           They discovered that Appellant had turned in almost 200

pounds of number-one copper that morning at Legend Smelting & Recycling, Inc.

Legend employees identified appellant as the customer who brought in the copper and

was paid $568.40. Legend set aside this copper and it was later identified as the

stolen copper due to its distinctive cut marks.

        {¶4} Crispin’s contacted the Licking County Sheriff’s Department.          Upon

investigation, appellant stated that he found the copper in the woods.

        {¶5} Appellant was charged by indictment with one count of receiving stolen

property in violation of R.C. 2913.51(A). The value of the property is $500 or more but

less than $5000, and the offense is therefore a felony of the fifth degree.

        {¶6} Appellant entered a plea of not guilty and the case proceeded to trial by

jury. At the conclusion of the trial, the jury found Appellant guilty as charged, and the
Licking County, Case No. 11-CA-83                                                       3


trial court sentenced him to a prison term of one year, in addition to a period of three

years of post-release control.

       {¶7} Appellant appeals from his conviction and sentence.

       {¶8} Appellant raises two Assignments of Error:

       {¶9}   “I. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A

MAXIMUM TERM WHEN THIS CASE DID NOT INVOLVE THE WORST FORM OF

THE OFFENSE OR THE WORST OFFENDER.”

       {¶10} “II.   THE TRIAL COURT VIOLATED R.C. 2967.28 BY IMPOSING

THREE YEARS OF POST-RELEASE CONTROL AT SENTENCING.”

                                             I.

       {¶11} In his first assignment of error, Appellant contends that the trial court

abused its discretion in sentencing him to a maximum term. We disagree.

       {¶12} Appellant was sentenced on August 4, 2011.            The version of R.C.

2929.14(C) in effect at that time stated in pertinent part:

       * * * [T]he court imposing a sentence upon an offender for a felony may impose

       the longest prison term authorized for the offense pursuant to division (A) of this

       section only upon offenders who committed the worst forms of the offense,

       upon offenders who pose the greatest likelihood of committing future crimes,

       upon certain major drug offenders under division (D)(3) of this section, and

       upon certain repeat violent offenders in accordance with division (D)(2) of this

       section.

Appellant asserts that the trial court abused its discretion in sentencing him to a

maximum term because the instant case does not represent “the worst form of the
Licking County, Case No. 11-CA-83                                                         4


offense,” and appellant is not an offender who “pose[s] the greatest likelihood of

committing future crimes.”     We find, however, that the sentence was within the

statutory range and the trial court’s decision to impose the maximum sentence was

not unreasonable, arbitrary, or unconscionable.

       {¶13} We begin with the well-established principle that in reviewing felony

sentences, we must use a two-step approach.             “First, [we] must examine the

sentencing court’s compliance with all applicable rules and statutes in imposing the

sentence to determine whether the sentence is clearly and convincingly contrary to

law. If this first prong is satisfied, the trial court’s decision in imposing the term of

imprisonment shall be reviewed under and abuse of discretion standard.” State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶26.                 An abuse of

discretion is “more than an error of law or judgment; it implies that the court's attitude

is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

       {¶14} Additionally,   although   mandatory     judicial   fact-finding    has   been

eliminated, trial courts must still consider the general guidance factors of R.C. 2929.11

and 2929.12. See, State v. Wells, 5th Dist. No. 2009 CA 00168, 2010-Ohio-3126,

¶74; State v. McConnell, 5th Dist. No. 09 CA 12, 2009-Ohio-5998, ¶18.

       {¶15} Appellant was convicted of one count of receiving stolen property, a

felony of the fifth degree, which is punishable by a prison term of six, seven, eight,

nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). It was within the trial court’s

discretion to consider any penalty within the range as long as the penalty was

considered in light of the factors listed in R.C. 2929.11 and 2929.12.
Licking County, Case No. 11-CA-83                                                      5


       {¶16} The trial court indicated that it had considered the purposes and

principles of sentencing as required by R.C. 2929.11 and the seriousness and

recidivism factors set forth in R.C. 2929.12.

       {¶17} Appellant asserts, however, that the offense at issue “barely” qualified as

a felony in terms of the value, the property was recovered, and no violence occurred.

Nevertheless, as appellant admitted, he has a prior felony conviction for “grand theft of

a chemical and…manufacturing of methamphetamines.”                 The trial court could

reasonably conclude that the maximum sentence was appropriate under the

circumstances.

       {¶18} We conclude that the trial court’s attitude was not unreasonable,

arbitrary, unconscionable, or otherwise an abuse of discretion in sentencing appellant

to a maximum term.

       {¶19} Appellant’s first assignment of error is overruled.

                                            II.

       {¶20} Appellant argues in his second assignment of error that the trial court

erred in “unilaterally” imposing a period of three years of postrelease control because

postrelease control for a fifth-degree felony is discretionary based upon the

determination of the parole board. We agree.

       {¶21} In regard to postrelease control, the trial court stated:

       Upon release I’ll also impose three years of post-release control. If you violate

       the terms of post-release control, you’re subject to being returned to the

       penitentiary for nine months or, for repeated violations, one and a half years.

       Should any violation itself constitute a new felony, you could be both returned
Licking County, Case No. 11-CA-83                                                         6


       to the penitentiary for one year or the total amount of post-release control time

       remaining, whichever is greater, in addition to receiving a new prison term for

       any new type of felony offense.

Appellant asserts that the trial court violated R.C. 2967.28(C), which states in pertinent

part: “Any sentence to a prison term for a felony of the * * * fifth degree * * * shall

include a requirement that the offender be subject to a period of post-release control

of up to three years after the offender's release from imprisonment, if the parole board

* * * determines that a period of post-release control is necessary for that offender.”

       {¶22} In State v. Bezak, the Ohio Supreme Court held that when “postrelease

control is not properly included in a sentence for a particular offense, the sentence for

that offense is void.” 114 Ohio St.3d 94, 2007-Ohio-3250, syllabus. Subsequently, in

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6230, the court modified Bezak to

reflect that the sentence is only void in part and the defendant is entitled to a new

sentencing hearing limited to the proper imposition of postrelease control. However,

the court stated in lieu of resentencing, R.C. 2953.08(G)(2) also provides that an

appellate court may “increase, reduce or otherwise modify a sentence” to correct a

defect in sentence. Id. at ¶ 29.

       {¶23} The Eighth District Court of Appeals has addressed a similar situation in

which a defendant was sentenced by a trial court to a three-year period of postrelease

control for charges that were felonies of the fifth degree. In State v. Hunter, 8th Dist.

No. 92032, 2009-Ohio-4194, the appellate court held the trial court usurped the

authority of the Adult Parole Authority which should have been the entity to determine
Licking County, Case No. 11-CA-83                                                    7


whether appellant would be subject to postrelease control pursuant to R.C. 2967.28.

Id. at ¶ 29.

       {¶24} Likewise, in this case, the trial court directly imposed discretionary

postrelease control upon appellant and in doing so, specifically overrode the parole

board’s statutory discretion under R.C. 2967.28. Therefore, we hold the trial court did

err in sentencing appellant and this court may correct the defect upon direct appeal

pursuant to R.C. 2953.08(G)(2). Fischer, supra.

       {¶25} The sentence of the Licking County Court of Appeals is affirmed, in part,

and reversed, in part, and pursuant to R.C. 2953.08(G)(2) the sentence is modified to

vacate the court’s order imposing three years of postrelease control and to leave that

determination to the discretion of the Adult Parole Authority.

By: Delaney, P.J.

Gwin, J. and

Edwards, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. JULIE A. EDWARDS
[Cite as State v. Flanagan, 2012-Ohio-1516.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    :
                                                 :
                                                 :
                       Plaintiff-Appellee        :
                                                 :
-vs-                                             :   JUDGMENT ENTRY
                                                 :
MICHAEL FLANAGAN                                 :
                                                 :
                                                 :   Case No. 11-CA-83
                      Defendant-Appellant        :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed, in part, and reversed, in part, and

the sentence modified in accordance with our Opinion. Costs assessed equally to the

parties.




                                               HON. PATRICIA A. DELANEY



                                               HON. W. SCOTT GWIN



                                               HON. JULIE A. EDWARDS
