[Cite as State v. Strebler, 2011-Ohio-6375.]

                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

STATE OF OHIO                                  )    CASE NO. 11 MA 67
                                               )
        PLAINTIFF-APPELLANT                    )
                                               )
VS.                                            )    OPINION
                                               )
DANIEL STREBLER                                )
                                               )
        DEFENDANT-APPELLEE                     )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 06 CR 815

JUDGMENT:                                           Affirmed.

APPEARANCES:

For Plaintiff-Appellant:                            Atty. Paul J. Gains
                                                    Mahoning County Prosecutor
                                                    Atty. Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellee:                             Atty. Megan Graff
                                                    Comstock, Springer & Wilson Co.
                                                    100 Federal Plaza East
                                                    Suite 926
                                                    Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                    Dated: December 7, 2011
[Cite as State v. Strebler, 2011-Ohio-6375.]
WAITE, P.J.


        {1}      The state is appealing the judgment of the Mahoning County Court of

Common Pleas granting judicial release to Appellee Daniel A. Strebler. Appellee was

charged with three felony drug charges. Originally, he entered a guilty plea to one of

the charges. An appeal of the original plea before us in 2009 was reversed because

the trial court failed to properly explain Appellee’s constitutional rights to him when he

entered his guilty plea. On remand, Appellee entered into a new Crim.R. 11 plea

agreement in which he pleaded guilty to two of the three drug charges in exchange

for the state’s recommendation of a five year prison term. He was sentenced to four

years on each charge, to be served concurrently. The sentencing entry did not state

that the prison terms were mandatory. After serving part of his prison term, Appellee

filed various motions seeking judicial release.                  The court eventually granted

Appellee’s request, and the state now appeals on the grounds that the prison terms

were mandatory and that judicial release cannot be granted where there are

mandatory prison terms. Although there is some question in the record regarding

what part of Appellant’s sentence is mandatory, and thus not subject to judicial

release, it is evident from this record that, to the extent there is error in the trial

court’s decision, it was induced by the prosecutor and constitutes invited error. Such

errors cannot form the basis of an appeal. Therefore, the judgment of the trial court

is affirmed.

                                           History of the Case

        {2}      On August 3, 2006, Appellee was indicted on three counts: possession

of chemicals used to manufacture a controlled substance, R.C. 2925.041(A), (C);
                                                                                    -2-

illegal manufacture of methamphetamine, R.C. 2925.04(A), (C)(3)(b); and child

endangering, R.C. 2919.22(B)(6). In June 2007, Appellee entered into a Crim.R. 11

plea agreement.       He pleaded guilty to count two, illegal manufacture of

methamphetamine, and counts one and three were dismissed. He also agreed to

timely appear for all future proceedings. The trial court accepted the guilty plea and

set a date for sentencing.

      {3}    Appellee did not appear for sentencing and was later arrested on a

bench warrant. Sentencing occurred on April 30, 2008, and the court sentenced

Appellee to eight years in prison. Appellee appealed the conviction and sentence.

We determined that the trial court had not adequately informed Appellee of the

constitutional rights he was waiving by entering a guilty plea and the plea was

vacated. State v. Strebler, 7th Dist. No. 08 MA 108, 2009-Ohio-1200.

      {4}    On June 5, 2009, Appellee entered into a new Crim.R. 11 plea

agreement. He pleaded guilty to counts one and two in the indictment. One of the

charges to which Appellee pleaded guilty involved one count of illegal assembly or

possession of chemicals for the manufacture of drugs, a violation of R.C.

2925.041(A), (C)(1), and a third degree felony. Pursuant to statute, this plea resulted

in an admission that the chemicals involved were used to manufacture

methamphetamine, triggering a mandatory prison term of a minimum of two years for

a first offense. He also pleaded guilty to one count of illegal manufacture of drugs,

R.C. 2925.04(A), (C)(3)(a), a second degree felony.         This plea resulted in an

admission that the drug involved was methamphetamine, thereby requiring a
                                                                                     -3-

mandatory prison term of a minimum of three years for a first offense.             The

prosecutor agreed to recommend a prison term of five years, and to dismiss count

three of the indictment.

       {5}    The court filed its sentencing judgment entry on July 27, 2009. The

court did not adopt the state’s recommendation.         Instead, the court sentenced

Appellee to four years in prison on each count, to be served concurrently.          No

mention was made that all or any part of the prison term was mandatory. Appellee

was also given 495 days of jail-time credit, and three years of mandatory post-

release control.

       {6}    Beginning on February 12, 2010, Appellee began filing a variety of

letters, motions, petitions and memos with the court, asking for judicial release. The

trial court denied the first motion, but eventually set a hearing to address the matter.

On January 12, 2011, the state filed a memorandum specifically informing the court

that it was not opposed to judicial release. A hearing was held on April 25, 2011.

The state again acknowledged that it did not oppose judicial release, but did note on

the record that there was a question of statutory interpretation that may have required

the trial court to impose a mandatory prison term in 2009. (4/25/11 Tr., pp. 8-9.) The

court discussed whether all of the original sentence should be treated as mandatory,

or only the combined statutory minimum of three years, considering that the 2009

sentencing entry did not state that any part of the prison term was mandatory. The

court specifically stated in open court that, if the prosecutor had mentioned at the

2009 resentencing hearing that there would be a problem in granting judicial release
                                                                                        -4-

in this case, “I would have sentenced the defendant, quite frankly, to a lesser term to

avoid this dilemma.” (4/25/11 Tr., p. 8.) The court concluded that it did have the

authority to grant judicial release since Appellee had served the statutory minimum

mandatory sentence. The court filed its judgment entry granting judicial release on

April 26, 2011. The state requested a stay of the judgment, but the motion was

denied. This prosecutor’s appeal followed on May 4, 2011.

       {7}    The Ohio Supreme Court has held that the state may appeal the trial

court's decision to grant a motion for judicial release for first and second degree

felonies, but “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, 863

N.E.2d 120, paragraph one of the syllabus. One of charges that Appellant pleaded

guilty to was a second degree felony, and therefore, the state is permitted to file an

appeal of the decision to grant judicial release for that crime.

                              ASSIGNMENT OF ERROR

       {8}    “THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION

FOR JUDICIAL RELEASE, BECAUSE HE WAS NOT AN ‘ELIGIBLE OFFENDER’

PURSUANT TO R.C. §2929.20(A)(1) AFTER HE WAS CONVICTED AND

SENTENCED TO A MANDATORY TERM OF INCARCERATION FOR VIOLATING

R.C. §§2925.041(A)(C)(1) & 2925.04(A)(3)(a).”

       {9}    The issue in this appeal is whether the trial court properly granted

judicial release to Appellee. After carefully examining the record in this case, it is
                                                                                    -5-

difficult to understand the state’s position, here. The prosecutor previously let the

trial court know in writing that it did not oppose judicial release in this case. The

prosecutor filed a memorandum with the trial court putting the state on record that

Appellee had served the mandatory three years of his prison sentence and that it had

no objection to judicial release. (1/12/11 Memorandum.) Additionally, the prosecutor

made no argument against judicial release at the April 25, 2011, hearing. The state

merely raised at the judicial release hearing that there may be a question of statutory

interpretation about whether the trial court should have previously imposed a

mandatory prison term. The unstated implication was that this failure to impose a

mandatory prison term created some confusion about whether judicial release was

possible, now.

      {10}   Hence, if error occurred in this matter it appears to be caused by

Appellant. The plea proceedings indicate that the minimum mandatory prison term in

this case was three years, and that anything more than that would need to be

specifically imposed by the trial court.   The trial court failed to adopt the state’s

recommendation of a five year sentence. No questions were raised by the state

regarding the imposition of two concurrent four-year prison terms without any

corresponding order that all or part of those prison terms would be mandatory. Until

the April 25, 2011, hearing, there seemed to be no question on the part of the state

that judicial release could be granted after three years. The prosecutor, in writing,

notified the court that it had no objections to judicial release. The record does not
                                                                                    -6-

contain even one specific objection to judicial release at the April 25, 2011, judicial

release hearing.

      {11}   “The doctrine of invited error estops an appellant, in either a civil or

criminal case, from attacking a judgment for errors the appellant induced the court to

commit. Under that principle, a party cannot complain of any action taken or ruling

made by the court in accordance with the party's own suggestion or request.” Royse

v. Dayton, 2d Dist. No. 24172, 2011–Ohio–3509, ¶11, citing State v. Woodruff

(1983), 10 Ohio App.3d 326, 327, 462 N.E.2d 457. When the prosecutor states that

it has no objection to a defendant’s motion, it is difficult to determine why an appeal

would be lodged once the trial court grants the motion. “This is a classic case of

invited error. Having told the court it had no objection to the motion for a new trial

being heard on its merits, the state cannot complain of error which it induced.” State

v. Bialec, 8th Dist. No. 86564, 2006-Ohio-1585, ¶12. For this reason, we overrule

Appellant’s assignment of error. The judgment of the trial court is affirmed.


Donofrio, J., concurs.

DeGenaro, J., concurs.
