[Cite as State v. Silva, 2013-Ohio-5676.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                       :   Hon. William B. Hoffman, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :   Case No. 2013CA00033
                                                :
SEAN DAVID SILVA                                :
                                                :
                                                :
       Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas, Case No. 2012-CR-
                                                    1322



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             December 9, 2013




APPEARANCES:

For Plaintiff-Appellee:                             For Defendant-Appellant:

JOHN D. FERRERO, JR.                                BARRY T. WAKSER
STARK COUNTY PROSECUTOR                             STARK COUNTY PUBLIC DEFENDER
                                                    201 Cleveland Ave S.W., Suite 104
KATHLEEN O. TATARSKY                                Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00033                                                       2

Delaney, J.

       {¶1} Defendant-Appellant Sean David Silva appeals the February 1, 2013

sentencing entry of the Stark County Court of Common Pleas. Plaintiff-Appellee is the

State of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶2} On November 6, 2012, Defendant-Appellant Sean David Silva was

indicted on one count of receiving stolen property, a fourth degree felony in violation of

R.C. 2913.51(A). Silva was released on bond.

       {¶3} Silva did not appear for his arraignment on November 30, 2012. As a

result, a capias was issued for his arrest and his bond was revoked.

       {¶4} Silva appeared before the trial court on January 2, 2013 and entered a

plea of guilty to the charge of receiving stolen property. The trial court ordered a pre-

sentence investigation.

       {¶5} On January 30, 2012, the trial court held the sentencing hearing. At the

hearing, Silva requested the trial court sentence him to a community control sanction

instead of a prison term. Silva cited to R.C. 2929.13(B)(1)(a) to argue the trial court was

required to sentence Silva to a community control sanction because Silva met the

criteria under the statute. The version of R.C. 2929.13(B)(1)(a) in effect at the time of

sentencing stated in pertinent part:

       Except as provided in division (B)(1)(b) of this section, if an offender is

       convicted of or pleads guilty to a felony of the fourth or fifth degree that is

       not an offense of violence, the court shall sentence the offender to a
Stark County, Case No. 2013CA00033                                                      3


       community control sanction of at least one year’s duration if all of the

       following apply:

       (i) The offender previously has not been convicted of or pleaded guilty to a

       felony offense or to an offense of violence that is a misdemeanor and that

       the offender committed within two years prior to the offense for which

       sentence is being imposed.

       {¶6} Silva argued the criteria found under R.C. 2929.13(B)(1)(a) applied to his

case. Silva stated his pre-sentence investigation report showed numerous previous

felony convictions, but he was last convicted of a felony offense on March 28, 2010,

three years prior to his current conviction. He argued R.C. 2929.13(B)(1)(a)(i) stated

that because Silva had not been previously convicted of a felony offense within two

years prior to the offense for which sentence was being imposed, the trial court was

required to sentence Silva to a community control sanction.          Silva argued in the

alternative, before the trial court could sentence Silva to a prison term, the trial court

was required to first contact the Department of Rehabilitation and Correction for a

recommendation of a community control sanction.

       {¶7} The trial court responded:

              * * * The Court has had the opportunity to review the presentence

       investigation in this matter. I would indicate the presentence investigation

       in this matter recommends a straight prison term. I will also indicate that I

       do not believe that the Defendant is subject to the new requirements for

       Felony Four and Felony Five non-violent sentencing. I do not believe he

       falls within the requirements.
Stark County, Case No. 2013CA00033                                                    4


             He has numerous prior felony convictions and prior prison terms

       that he has served and the Court finds after reviewing the presentence

       investigation that community control sanctions are not appropriate under

       the circumstances.

             The Court has applied the required felony sentencing criteria that

       are applicable to him.    The Court does not believe that there is any

       requirement under his circumstances that the Court notify DRC in advance

       of issuing any type of prison term.

(T. 9-10).

       {¶8} The trial court sentenced Silva to a prison term of twelve months. The

sentencing entry was filed on February 1, 2013. It is from this decision Silva now

appeals.

                                ASSIGNMENT OF ERROR

       {¶9} Silva raises one Assignment of Error:

       {¶10} “THE TRIAL COURT ERRED WHEN IT IMPOSED A PRISON TERM IN

CONTRAVENTION OF R.C. 2929.13.”

                                       ANALYSIS

       {¶11} Silva argues in his sole Assignment of Error the trial court erred in

sentencing him to twelve months in prison. Silva states the trial court failed to comply

with the sentencing requirements under R.C. 2929.13(B)(1), as amended by H.B. 86,

because the trial court was required to impose a sentence of community control

sanctions.
Stark County, Case No. 2013CA00033                                                        5

      {¶12} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence.    The first step is to “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.” State v. Conley, 5th Dist. Stark

No. 2012CA00150, 2013-Ohio-4137, ¶ 35 citing Kalish at ¶ 4.             If the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id. We have recognized that “[w]here the record lacks

sufficient data to justify the sentence, the court may well abuse its discretion by

imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.

Licking App.No.2006–CA–41, 2006–Ohio–5823, ¶ 52.

                     Criteria to Impose Mandatory Community Control

      {¶13} R.C. 2929.13 governs sentencing guidelines for various specific offenses

and degrees of offenses. On September 30, 2011, H.B. 86 went into effect and it

amended R.C. 2929.13(B)(1) to prohibit prison sentences for certain fourth and fifth-

degree felonies. State v. Johnson, 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575, ¶

58. H.B. 86 applies to the instant case because it went into effect before Silva was

sentenced. If certain criteria are met in section (a) of the statute, the trial court is

required    to   sentence   the   offender   to   community   control   sanctions.      R.C.

2929.13(B)(1)(a), as amended by H.B. 86, reads:

      (a) Except as provided in division (B)(1)(b) of this section, if an offender is

      convicted of or pleads guilty to a felony of the fourth or fifth degree that is

      not an offense of violence, the court shall sentence the offender to a
Stark County, Case No. 2013CA00033                                                         6


       community control sanction of at least one year’s duration if all of the

       following apply:

       (i) The offender previously has not been convicted of or pleaded guilty to a

       felony offense or to an offense of violence that is a misdemeanor and that

       the offender committed within two years prior to the offense for which

       sentence is being imposed.

       (ii) The most serious charge against the offender at the time of sentencing

       is a felony of the fourth or fifth degree.

       (iii) If the court made a request of the department of rehabilitation and

       correct pursuant to division (B)(1)(c) of this section, the department, within

       the forty-five day period specified in that division, provided the court with

       the names of, contact information for, and program details of one or more

       community control sanctions of at least one year’s duration that are

       available for persons sentenced by the court.

       {¶14} The question raised in the present case is whether under the H.B. 86

version of R.C. 2929.13(B)(1)(a)(i), was the trial court required to sentence Silva to

community control sanctions? Silva and the State dispute the interpretation of R.C.

2929.13(B)(1)(a)(i). According to Silva, the language of subsection (i) requires a felony

conviction and that the offender committed the felony within two years of the instant

sentence.    The State argues the subsection reads that if an offender has been

convicted or pleaded guilty to a felony offense at any time, subsection (i) is not satisfied.

The State contends the two-year look-back period referred to in subsection (i) only

applies to violent misdemeanor offenses.
Stark County, Case No. 2013CA00033                                                    7


      {¶15} This Court has previously had the opportunity to review former R.C.

2929.13(B)(1)(a)(i) in State v. Takos, 5th Dist. Richland No. 2012-CA-0078, 2013-Ohio-

565 and State v. Mann, 5th Dist. Coshocton No. 2012CA0018, 2013-Ohio-2133. In

those cases, the defendants were convicted of fifth degree felonies and sentenced to

prison rather than community control pursuant to former R.C. 2929.13(B)(1)(a). We

affirmed the trial court’s decision to impose a prison sentence based on the defendants’

past felony convictions. Mann at ¶ 7; Takos at ¶ 14.

      {¶16} Other districts have also interpreted R.C. 2929.13(B)(1)(a)(i) to mean the

two-year look-back provision applies only to prior convictions for violent misdemeanor

offenses. In State v. Martin, 12th Dist. Butler No. CA2013-03-055, 2013-Ohio-3676, the

Twelfth District Court of Appeals affirmed the defendant’s sentence to a prison term

based on a conviction for fifth degree felonies. The applicable sentencing statute was

R.C. 2929.13(B)(1), as amended by H.B. 86. The court held:

      As can be seen, former R.C. 2929.13(B)(1)(a)(i) applies only if the

      offender previously has not been convicted of or pleaded guilty (1) to a

      felony offense, or (2) to an offense of violence that is a misdemeanor and

      that the offender committed within two years prior to the offense for which

      sentence is being imposed. Here, the record shows that Martin previously

      was convicted of a felony offense.      Therefore the trial court was not

      required to sentence him to community control under former R.C.

      2929.13(B)(1)(a).

Martin at ¶ 15. The Sixth District Court of Appeals in State v. Lumpkin, 6th Dist. Lucas

No. L-11-1294, 2013-Ohio-840, also held under former R.C. 2929.13(B)(1)(a)(i) that a
Stark County, Case No. 2013CA00033                                                        8


mandatory sentence of community control sanctions did not apply to a defendant with

prior felony convictions. Id. at ¶ 7.

       {¶17} In State v. Esmail, the Seventh District Court of Appeals interpreted

former R.C. 2929.13(B)(1)(a)(i) in the same manner as Fifth, Sixth, and Twelfth

Districts. In Esmail, the defendant had been previously convicted of felonies in 2003

and 2006. The trial court sentenced the defendant in 2011 to prison for a first degree,

third, and fifth degree felonies. The defendant argued the trial court was required to

sentence the defendant on the fifth degree felony to community control sanctions. The

Seventh District disagreed. It stated:

       The trial court must sentence an offender convicted of a non-violent fifth-

       degree felony to at least one year of community control if all of the factors

       in R.C. 2929.13(B)(1)(a)(i)-(iii) apply, except when one of the factors in

       (B)(1)(b) apply; then the court has discretion to impose a prison term.

       R.C. 2929.13(B)(1) does not apply to Esmail because he was previously

       convicted of a felony ((B)(1)(a)(i)) and in the instant case, he was

       sentenced on first-degree and third-degree felonies in addition to the fifth-

       degree felonies ((B)(1)(a)(ii)).     Because all of the factors in R.C.

       2929.13(B)(1)(a) do not apply to Esmail, it is not necessary to examine the

       exceptions contained in (B)(1)(b).

Id. at ¶ 35.

       {¶18} In support of his interpretation of R.C. 2929.13(B)(1)(a)(i), Silva refers this

Court to State v. Johnson, 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575. The Eighth
Stark County, Case No. 2013CA00033                                                     9


District construed the subsection to provide for a two-year look-back provision for prior

convictions for violent misdemeanor offenses and felony convictions:

             Although the parties do not dispute that subsections (ii) and (iii) are

      satisfied in this case, they part company with respect to subsection (i).

      According to the state, if a defendant has been convicted of or pleaded

      guilty to a felony offense at any time, then subsection (i) is not satisfied.

      But the language of subsection (i) requires a felony conviction and that the

      offender committed the felony within two years of the instant sentence.

      The state's position would have us effectively read the word “and” out of

      the provision. We hold that R.C. 2929.13(B)(1)(a)(i) is satisfied where a

      defendant has previously been convicted of or pleaded guilty to a felony

      offense, but that conviction or guilty plea occurred more than two years

      before the current sentence is imposed.

             In the instant case, Johnson had not been convicted of a felony or

      pleaded guilty to a felony within two years of the sentence being imposed.

      Therefore, R.C. 2929.13(B)(1)(a)(i) applied. Because there is no dispute

      that R.C. 2929.13(B)(1)(a)(ii)-(iii) applied, the trial court was required to

      sentence Johnson to a community control sanction. Accordingly, the trial

      court committed clear error when it failed to comply with the applicable

      statute and instead sentenced Johnson to two eleven-month sentences to

      run consecutively. Accordingly, we sustain the fifth assignment of error.

Johnson at ¶ 60-61.
Stark County, Case No. 2013CA00033                                                         10

       {¶19} The Johnson decision was issued on February 21, 2013, before Lumpkin,

Esmail, Martin, and Mann. The Eighth District Court of Appeals is the only district to

follow the    precedent    of   Johnson    as   to   the   interpretation   of   former   R.C.

2929.13(B)(1)(a)(i).    The majority of districts that have addressed former R.C.

2929.13(B)(1)(a)(i) have found the subsection applies only if the offender has not been

previously convicted of or pleaded guilty (1) to a felony offense or (2) to an offense of

violence that is a misdemeanor and that the offender committed within two years prior to

the offense for which sentence is being imposed.                We interpret former R.C.

2929.13(B)(1)(a)(i) to state if a defendant has been convicted of or pleaded guilty to a

felony offense at any time, subsection (i) is not satisfied.

       {¶20} In the present case, the trial court referred to Silva’s prior felony

convictions when it sentenced Silva to prison instead of community control. Pursuant to

R.C. 2929.13(B)(1)(a)(i), the trial court was not mandated to sentence Silva to

community control sanctions because of Silva’s prior felony convictions. A prison term

of twelve months is within the statutory sentencing range for a felony of the fourth

degree.

       {¶21} It should be noted R.C. 2929.13(B)(1) was amended by S.B. 160, effective

March 22, 2013. The amended statute states:

       (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

       offender is convicted of or pleads guilty to a felony of the fourth or fifth

       degree that is not an offense of violence, the court shall sentence the

       offender to a community control sanction of at least one year's duration if

       all of the following apply:
Stark County, Case No. 2013CA00033                                                       11


       (i) The offender previously has not been convicted of or pleaded guilty to a

       felony offense.

       (ii) The most serious charge against the offender at the time of sentencing

       is a felony of the fourth or fifth degree.

       (iii) If the court made a request of the department of rehabilitation and

       correction pursuant to division (B)(1)(c) of this section, the department,

       within the forty-five-day period specified in that division, provided the court

       with the names of, contact information for, and program details of one or

       more community control sanctions of at least one year's duration that are

       available for persons sentenced by the court.

       (iv) The offender previously has not been convicted of or pleaded guilty to

       a misdemeanor offense of violence that the offender committed within two

       years prior to the offense for which sentence is being imposed.

                            Criteria for Discretionary Sentencing

       {¶22} The State argues the trial court was within its discretion to sentence Silva

to prison because Silva violated a condition of his bond by not appearing at a scheduled

hearing. Section (b) of R.C. 2929.13(B)(1) grants the trial court discretion to sentence

an offender to prison if certain criteria are met:

       (b) The court has discretion to impose a prison term upon an offender who

       is convicted of or pleads guilty to a felony of the fourth or fifth degree that

       is not an offense of violence if any of the following apply:

       (i) The offender committed the offense while having a firearm on or about

       the offender’s person or under the offender’s control.
Stark County, Case No. 2013CA00033                                                        12


       (ii) The offender caused physical harm to another person while committing

       the offense.

       (iii) The offender violated a term of the conditions of bond as set by the

       court.

       (iv) The court made a request of the department of rehabilitation and

       correction pursuant to division (B)(1)(c) of this section, and the

       department, within the forty-five day period specified in that division, did

       not provide the court with the name of, contact information for, and

       program details of any community control sanction of at least one year’s

       duration that is available for persons sentenced by the court.

       {¶23} In this case, the trial court did not make a finding at the sentencing

hearing that Silva violated a condition of his bond. The argument is moot, however,

based on our finding under R.C. 2929.13(B)(1)(a)(i).

                       Department of Rehabilitation and Correction

       {¶24} Silva finally argues the trial court erred by failing to comply with former

R.C. 2929.13(B)(1)(c). Silva argues the statute required the trial court to contact the

department of rehabilitation and correction to recommend a community control sanction

before the trial court could sentence Silva to prison. The former statute reads:

                If a court that is sentencing an offender who is convicted of or

       pleads guilty to a felony of the fourth or fifth degree that is not an offense

       of violence believes that no community control sanctions are available for

       its use that, if imposed on the offender, will adequately fulfill the overriding

       principles and purposes of sentencing, the court shall contact the
Stark County, Case No. 2013CA00033                                                    13


      department of rehabilitation and correction and ask the department to

      provide the court with the names of, contact information for, and program

      details of one or more community control sanctions of at least one year's

      duration that are available for persons sentenced by the court. Not later

      than forty-five days after receipt of a request from a court under this

      division, the department shall provide the court with the names of, contact

      information for, and program details of one or more community control

      sanctions of at least one year's duration that are available for persons

      sentenced by the court, if any. Upon making a request under this division

      that relates to a particular offender, a court shall defer sentencing of that

      offender until it receives from the department the names of, contact

      information for, and program details of one or more community control

      sanctions of at least one year's duration that are available for persons

      sentenced by the court or for forty-five days, whichever is the earlier.

             If the department provides the court with the names of, contact

      information for, and program details of one or more community control

      sanctions of at least one year's duration that are available for persons

      sentenced by the court within the forty-five-day period specified in this

      division, the court shall impose upon the offender a community control

      sanction under division (B)(1)(a) of this section, subject to divisions

      (B)(1)(b)(i) and (ii) of this section. If the department does not provide the

      court with the names of, contact information for, and program details of

      one or more community control sanctions of at least one year's duration
Stark County, Case No. 2013CA00033                                                   14


      that are available for persons sentenced by the court within the forty-five-

      day period specified in this division, the court may impose upon the

      offender a prison term under division (B)(1)(b)(iii) of this section.

      {¶25} We find no error for the trial court to sentence Silva to a twelve-month

prison term without application of R.C. 2929.13(B)(1)(c). The trial court appropriately

sentenced Silva to prison pursuant to R.C. 2929.13(B)(1)(a)(i).
Stark County, Case No. 2013CA00033                                                  15


                                   CONCLUSION

      {¶26} The trial court complied with R.C. 2929.13(B) when it sentenced Silva to a

twelve-month prison term. For a felony of the fourth degree, a prison term of twelve

months is within the statutory sentencing range.      The trial court considered the

purposes and principles of sentencing and recidivism factors. State v. Kalish, 120 Ohio

St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912.

      {¶27} The sole Assignment of Error of Defendant-Appellant Sean David Silva is

overruled.

      {¶28} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.



                                       HON. PATRICIA A. DELANEY




                                       HON. W. SCOTT GWIN



                                       HON. WILLIAM B. HOFFMAN
