[Cite as State v. Wright, 2013-Ohio-2298.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
JAMES C. WRIGHT                              :       Case No. 12CA22
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 11CR11-0181



JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    June 3, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

AARON E. ALLARD                                      GEOFFREY L. OGLESBY
117 East High Street                                 618 West Washington Street
Suite 234                                            Sandusky, OH 44870
Mount Vernon, OH 43050
Knox County, Case No. 12CA22                                                            2

Farmer, J.

       {¶1}   On November 8, 2011, the Knox County Grand Jury indicted appellant,

James Wright, on two counts of nonsupport of dependents in violation of R.C.

2919.21(A) and (B), felonies of the fifth degree.

       {¶2}   A jury trial commenced on October 16, 2012. The subsection (A) count

was dismissed at the start of the trial. The jury found appellant guilty of the subsection

(B) count.    By sentencing entry filed November 8, 2012, the trial court sentenced

appellant to three years of community control and ninety days in jail. Appellant was

ordered to pay $19,080.16 to the Knox County Child Enforcement Agency and pay

$335.88 per month for child support and arrearages.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}   "THE    TRIAL    COURT      ERRED     [IN]   NOT   FINDING    THAT     THE

DEFENDANT WAS GUILTY OF A MISDEMEANOR BUT BY FINDING IN ITS

JUDGMENT ENTRY THAT APPELLANT WAS 'FOUND GUILTY AT TRIL (SIC) BY

JURY OF ONE COUNT OF FAILURE TO PROVIDE ADEQUATE SUPPORT OF

DEPENDENTS, IN VIOLATION OF R.C. 2919.21(B), A FELONY OF THE FIFTH

DEGREE' WHEN THE JURY VERDICT FAILED TO SPECIFY THE STATUTORY

SECTION OF THE OFFENSE OR SPECIFICALLY SET FORTH THE DEGREE OF

THE CRIME CHARGED."
Knox County, Case No. 12CA22                                                              3


                                            II

      {¶5}   "THE TRIAL COURT ERRED BY GRANTING RESTITUTION IN AN

AMOUNT BEYOND THE AMOUNT IN THE INDICTMENT AND THE TIME THE

ALLEGED CRIME WAS COMMITTED DURING THE INDICTMENT."

                                           I, II

      {¶6}   Appellant claims the trial court erred in finding that he was found guilty of a

fifth degree felony as opposed to a misdemeanor because the verdict form did not

specify a statutory section of the offense, the degree of the offense charged, or any

aggravating elements to elevate the offense to a felony. We agree.

      {¶7}   The leading case on this issue is State v. Pelfrey, 112 Ohio St.3d 422,

2007-Ohio-256, syllabus, wherein the Supreme Court of Ohio held: "Pursuant to the

clear language of R.C. 2945.75, a verdict form signed by a jury must include either the

degree of the offense of which the defendant is convicted or a statement that an

aggravating element has been found to justify convicting a defendant of a greater

degree of a criminal offense."

      {¶8}   In its brief at 2, appellee, the state of Ohio, concedes the issue. Appellant

should have been sentenced to the lowest degree of the offense, a misdemeanor. R.C.

2919.21(G)(1). Restitution should be commensurate with a misdemeanor offense.

      {¶9}   Assignment of Error I is granted and Assignment of Error II is moot.
Knox County, Case No. 12CA22                                               4


      {¶10} The judgment of the Court of Common Pleas of Knox County, Ohio is

hereby reversed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




SGF/sg 523
