[Cite as State v. Shazier, 2019-Ohio-4409.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

       PLAINTIFF-APPELLANT/
       CROSS-APPELLEE,                                   CASE NO. 8-19-12

       v.

MARCEL D. SHAZIER,
                                                         OPINION
       DEFENDANT-APPELLEE/
       CROSS-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR 18 09 0283

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                            Date of Decision: October 28, 2019




APPEARANCES:

        Alice Robinson-Bond for Appellant/Cross-Appellee

        Stephen P. Hardwick for Appellee/Cross-Appellant
Case No. 8-19-12


PRESTON, J.

       {¶1} Plaintiff-appellant/cross-appellee, the State of Ohio, appeals the March

4, 2019 judgment of the Logan County Court of Common Pleas sentencing

defendant-appellee/cross-appellant, Marcel D. Shazier (“Shazier”), to five years of

community control for attempted failure to provide notice of change of address.

Shazier appeals the March 4, 2019 judgment of the Logan County Court of Common

Pleas on the basis that his due process rights were violated when the trial court

accepted his guilty plea. For the reasons that follow, we affirm Shazier’s conviction

but reverse Shazier’s sentence and remand for resentencing.

       {¶2} This case arises from Shazier’s repeated failure to comply with his sex-

offender notification requirements. On August 24, 2011, Shazier was adjudicated

delinquent by reason of rape in violation of R.C. 2907.02(A)(1), a first-degree

felony if committed by an adult, in Clark County Juvenile Court Case Number 2011-

628. (See Doc. No. 4); (PSI at 3). As a result, Shazier was classified as a Tier I sex

offender and ordered to register with the county sheriff once every year for ten years.

(PSI at 4). In 2013, Shazier, who was by then an adult, was convicted in Clark

County, Ohio of one felony count of attempted failure to provide notice of change

of address. (Id.); (Feb. 5, 2019 Tr. at 8-9); (Mar. 4, 2019 Tr. at 6). Shazier was

sentenced to one year of community control, which he successfully completed in

2014. (PSI at 4). In 2017, Shazier was convicted in Logan County, Ohio of one


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count of attempted failure to provide notice of change of address, a second-degree

felony. (Id.); (Feb. 5, 2019 Tr. at 3-4, 9); (Mar. 4, 2019 Tr. at 3, 6). Consequently,

Shazier was sentenced to five years of community control. (Feb. 5, 2019 Tr. at 3-

4, 9); (Mar. 4, 2019 Tr. at 3). Nevertheless, in August 2018, Shazier again failed to

notify his supervising officer of a change of address. (See Doc. No. 4); (Feb. 5,

2019 Tr. at 5-10).

       {¶3} On October 9, 2018, the Logan County Grand Jury indicted Shazier on

one count of failure to provide notice of change of address in violation of R.C.

2950.05(F)(1) and 2950.99(A)(1)(a)(ii), a first-degree felony. (Doc. No. 4). On

October 12, 2018, Shazier appeared for arraignment and pleaded not guilty to the

count of the indictment. (Doc. No. 13).

       {¶4} A change-of-plea hearing was held on February 5, 2019. (Doc. Nos.

27, 29); (Feb. 5, 2019 Tr. at 1, 5). At the change-of-plea hearing, the indictment

was amended to charge Shazier with one count of attempted failure to provide notice

of change of address in violation of R.C. 2950.05(F)(1), 2950.99(A)(1)(a)(ii), and

2923.02(A), (E)(1), a second-degree felony. (Doc. Nos. 28, 29); (Feb. 5, 2019 Tr.

at 5, 27). Under a negotiated plea agreement, Shazier withdrew his previous not

guilty plea and pleaded guilty to the count of the amended indictment. (Doc. Nos.

28, 29); (Feb. 5, 2019 Tr. at 37-38). The trial court accepted Shazier’s guilty plea




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and found him guilty. (Doc. No. 29); (Feb. 5, 2019 Tr. at 38). The trial court filed

its judgment entry of conviction on February 6, 2019. (Doc. No. 29).

       {¶5} On March 4, 2019, the trial court sentenced Shazier to five years of

community control as well as six months in the Logan County Jail. (Doc. No. 30).

       {¶6} On March 11, 2019, the State filed a notice of appeal. (Doc. No. 34).

On June 6, 2019, Shazier filed a motion for leave to file a delayed notice of cross-

appeal, along with a notice of cross-appeal. On June 27, 2019, this court granted

Shazier leave to file his delayed notice of cross-appeal. The State raises one

assignment of error for our review. Shazier raises two assignments of error for our

review. For ease of discussion, we will first address Shazier’s first assignment of

error. Then, we will consider the State’s assignment of error and Shazier’s second

assignment of error together.

                       Shazier’s Assignment of Error No. I

       The trial court erred by accepting a guilty plea from someone who
       could not have committed the charged offense. Entry (Mar. 4,
       2019); Article I, Section 16 of the Ohio Constitution and the
       Fourteenth Amendment to the United States Constitution.

       {¶7} In his first assignment of error, Shazier argues that the trial court erred

by accepting his guilty plea to the offense of attempted failure to provide notice of

change of address. Shazier claims that the trial court erred by accepting his guilty

plea because “no reasonable jury could find [him] guilty of failing to notify because

his juvenile adjudication cannot be used as a predicate to increase his criminal

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responsibility from none to the punishment for a * * * felony.” (Appellee/Cross-

Appellant’s Brief at 14). Specifically, he argues that using his juvenile adjudication

as an element of the offense to which he pleaded guilty violates his constitutional

rights to due process of law. (Id. at 14-21).

       {¶8} At the outset, we must consider whether Shazier’s guilty plea precludes

our consideration of the merits of his first assignment of error. Generally, a

defendant who enters a guilty plea waives the right to appeal all nonjurisdictional

errors arising at prior stages of the proceedings unless those errors prevented the

defendant from knowingly, intelligently, and voluntarily entering his guilty plea.

State v. Kuhner, 154 Ohio App.3d 457, 2003-Ohio-4631, ¶ 4 (3d Dist.), citing Ross

v. Common Pleas Court of Auglaize Cty., 30 Ohio St.2d 323 (1972); State v.

Howard, 4th Dist. Scioto No. 16CA3762, 2017-Ohio-9392, ¶ 69 (“[A] voluntary,

knowing, and intelligent guilty plea waives any alleged constitutional violations

unrelated to the entry of the guilty plea and nonjurisdictional defects in the

proceedings.”), citing State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 105

and State v. Storms, 4th Dist. Athens No. 05CA30, 2006-Ohio-3547, ¶ 9. However,

“[a] guilty plea does not * * * ‘waive a claim that judged on its face the charge is

one which the State may not constitutionally prosecute,’” and this is precisely the

claim Shazier raises in this case. State v. Legg, 4th Dist. Pickaway No. 14CA23,

2016-Ohio-801, ¶ 12, quoting Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241


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(1975), fn. 2. Accord State v. Rolland, 7th Dist. Mahoning No. 12MA68, 2013-

Ohio-2950, ¶ 9, citing State v. Wilson, 58 Ohio St.2d 52, 54-55 (1979).

Furthermore, “[e]ven where waiver is clear, [we] reserve[] the right to consider

constitutional challenges to the application of statutes * * * where the rights and

interests involved may warrant it.” In re M.D., 38 Ohio St.3d 149 (1988), paragraph

one of the syllabus. Therefore, despite the fact that Shazier did not raise his

constitutional challenge at the trial court level, in the interests of justice, and

considering the aforementioned authority, we will examine his constitutional

argument. Rolland at ¶ 10.

       {¶9} Shazier argues that his attempted-failure-to-provide-notice-of-change-

of-address conviction should be vacated because his juvenile sex-offense

adjudication cannot serve as the predicate for the offense. He insists that this result

is required by the Supreme Court of Ohio’s decision in State v. Hand. In Hand, the

defendant pleaded no contest to three first-degree felony counts and two second-

degree felony counts, as well as five three-year firearm specifications. 149 Ohio

St.3d 94, 2016-Ohio-5504, ¶ 2. The parties agreed to an aggregate six-year prison

sentence with the understanding that three years of the sentence would be mandatory

due to the firearm specifications. Id. at ¶ 3. However, the parties disputed whether

the remaining three years of the aggregate six-year sentence would also be a

mandatory term. Id. In particular, the “question was whether [the defendant’s] prior


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juvenile adjudication for aggravated robbery * * * should operate as a first-degree-

felony conviction to enhance his sentence” under R.C. 2929.13(F)(6), which

requires a mandatory prison term for a first- or second-degree felony if the offender

has previously been convicted of or pleaded guilty to a first- or second-degree

felony. Id. To settle the dispute, the trial court relied on R.C. 2901.08(A), which

provided, in relevant part:

       If a person is alleged to have committed an offense and if the person

       previously has been adjudicated a delinquent child * * * for a violation

       of a law * * *, the adjudication as a delinquent child * * * is a

       conviction for a violation of the law * * * for purposes of determining

       * * *, if the person is convicted of or pleads guilty to an offense, the

       sentence to be imposed upon the person relative to the conviction or

       guilty plea.

Id. at ¶ 4. See R.C. 2901.08(A) (Sept. 30, 2011). Pursuant to R.C. 2901.08(A), the

trial court treated the defendant’s juvenile adjudication as a prior conviction and

ruled that his juvenile adjudication therefore required the imposition of a mandatory

prison term under R.C. 2929.13(F)(6). Hand at ¶ 4. Accordingly, the trial court

sentenced the defendant to an aggregate six-year mandatory term of incarceration.

Id.




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       {¶10} Before the Supreme Court of Ohio, the defendant argued that “his right

to due process was violated when his past juvenile adjudication was used to make

his prison term mandatory,” specifically because his juvenile adjudication was not

obtained using procedures that provided for the right to a jury trial. Id. at ¶ 11, 20.

The court agreed. It noted that “‘[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt’” and that “facts

increasing a mandatory minimum sentence must also be submitted to a jury and

found beyond a reasonable doubt.” Id. at ¶ 21-22, quoting Apprendi v. New Jersey,

530 U.S. 466, 490, 120 S.Ct. 2348 (2000) and citing Alleyne v. United States, 570

U.S. 99, 114-117, 133 S.Ct. 2151 (2013).           The court explained that “prior

convictions are treated differently only because ‘unlike virtually any other

consideration used to enlarge the possible penalty for an offense, * * * a prior

conviction must itself have been established through procedures satisfying the fair

notice, reasonable doubt, and jury trial guarantees.’” Id. at ¶ 31, quoting Jones v.

United States, 526 U.S. 227, 249, 119 S.Ct. 1215 (1999). The court held that

“[b]ecause a juvenile adjudication is not established through a procedure that

provides the right to a jury trial, it cannot be used to increase a sentence beyond a

statutory maximum or mandatory minimum.” Id. at ¶ 34. According to the court,

“it is fundamentally unfair to treat a juvenile adjudication as a previous conviction


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that enhances either the degree of or the sentence for a subsequent offense

committed as an adult.” Id. at ¶ 37.

       {¶11} Taken alone, Hand would appear to lend support to Shazier’s position.

However, as Shazier acknowledges, the Supreme Court of Ohio subsequently

declined to extend the holding of Hand. See State v. Carnes, 154 Ohio St.3d 527,

2018-Ohio-3256, ¶ 19. In Carnes, the defendant was convicted of one count of

having weapons while under disability in violation of R.C. 2923.13(A)(2). Id. at ¶

2. The defendant’s alleged disability stemmed from his earlier juvenile adjudication

for felonious assault. Id. On appeal, the defendant urged the court to extend Hand

to hold that a juvenile adjudication cannot satisfy an element of any adult offense

without violating due process. Id. at ¶ 4-5. However, the court declined the

defendant’s invitation to issue a broad ruling and instead focused exclusively on the

weapons-under-disability statute, which it found to be distinguishable from the

statutes in question in Hand. Id. at ¶ 4, 8.

       {¶12} First, the court noted that unlike R.C. 2901.08(A), which “expressly

provided that a juvenile adjudication ‘is a conviction,’” “R.C. 2923.13, the

weapons-under-disability statute, lists several discrete, alternative disability

conditions, including but not limited to certain juvenile adjudications and adult

convictions.” (Emphasis sic.) Id. at ¶ 8-9. Thus, in contrast to R.C. 2901.08(A), the

weapons-under-disability statute “does not deem [a] juvenile adjudication to be an


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adult conviction.” Id. at ¶ 19. In addition, the court observed that the weapons-

under-disability statute “does not use juvenile adjudications for sentence-

enhancement purposes” as was the case when R.C. 2901.08(A) and 2929.13(F)(6)

were read together. Id. at ¶ 10. Rather, “the juvenile adjudication is an element of

the offense,” and this fact, that the juvenile adjudication is an element of the offense

instead of a sentence-enhancer, is not “more consequential” because “‘only the

existence of a disability * * * is at issue in the statute.’” Id., quoting State v. Barfield,

1st Dist. Hamilton No. C-160768, 2017-Ohio-8243, ¶ 8. Furthermore, the court

found it notable that “the legislature created a process whereby a person may seek

relief from a disability” and that the defendant “failed to avail himself of this

process.” Id. at ¶ 12. Finally, the court stated that “a policy decision made by the

legislature that allowing weapons in the hands of individuals with certain prior

juvenile adjudications poses an increased risk to public safety” is embodied in the

weapons-under-disability statute and that “the lack of a right to a jury trial, as well

as other protections, does not make prior juvenile adjudications unreliable for risk-

assessment purposes.” Id. at ¶ 16-17. For all of these reasons, the court concluded

that “[a] prior juvenile adjudication may be an element of the weapons-under-

disability offense set forth in R.C. 2923.13(A)(2) without violating due process

under the Ohio or United States Constitutions.” Id. at ¶ 21.




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           {¶13} Although Shazier recognizes that Carnes limits the holding in Hand,

he reasons that Carnes does not control the outcome in this case because in Carnes,

the “Ohio Supreme Court relied on the ‘unique nature of the weapons-under-

disability statute.’” (Appellee/Cross-Appellant’s Brief at 15). He argues that Hand

is the controlling case because the “logic of Hand applies even more strongly to a

case in which a prior adjudication is a statutory element of an offense than it does

to a case in which the adjudication turns a non-mandatory sentence into a mandatory

one.” (Id. at 19).

           {¶14} Shazier’s argument is without merit. Two of our sister appellate

districts have previously considered whether Hand precludes the use of a juvenile

sex-offense adjudication as the predicate offense for a failure-to-register or a failure-

to-notify offense committed as an adult. State v. Young, 4th Dist. Lawrence No.

17CA11, 2018-Ohio-4990, appeal allowed, 155 Ohio St.3d 1405, 2019-Ohio-944;

State v. Buttery, 1st Dist. Hamilton No. C-160609, 2017-Ohio-9113, appeal

allowed, 152 Ohio St.3d 1462, 2018-Ohio-1795.1                        Both of these courts have

concluded that it does not.

           {¶15} In Buttery, which was decided before the Supreme Court of Ohio

issued its decision in Carnes, the First District explained the differences between

R.C. 2950.04, the duty-to-register statute, and the statutes at issue in Hand:



1
    The Supreme Court of Ohio heard oral argument in Buttery on August 6, 2019.

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       R.C. 2950.04 distinguishes between an adult offender convicted of a

       sexually-oriented offense and a juvenile adjudicated delinquent and

       classified for having committed a sexually-oriented offense. While

       both are required to register under the statute, the registration

       requirements are based on either an adult conviction or a juvenile

       adjudication. The statute does not treat a juvenile adjudication as a

       conviction; the juvenile is required to register based upon the juvenile

       adjudication and classification. The registration requirement does not

       depend on an adult conviction.           Like the juvenile adjudication

       constituting the disability element in the weapons-under-disability

       cases, the juvenile adjudication for a sexually-oriented offense

       requires registration in its own right. The juvenile adjudication is not

       a penalty-enhancing element; it is an element of the crime of failing

       to register.

Buttery at ¶ 20. Given these differences between R.C. 2950.04 and the statutes at

issue in Hand, the First District concluded that “Hand does not bar the use of [a]

juvenile adjudication as the basis of * * * [a] conviction for failing to register.” Id.

at ¶ 21.

       {¶16} Likewise, in Young, the Fourth District reached a similar conclusion

with respect to R.C. 2950.05, the duty-to-notify statute under which Shazier was


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convicted. In Young, which was decided after Carnes, the Fourth District found that

“[n]one of the language in [R.C. 2950.05(F)(1)] suggests that a juvenile adjudication

constitutes an adult conviction.” Young at ¶ 12. The court found that “the duty-to-

notify provision does not equate a juvenile adjudication to an adult conviction and

it does not enhance the failure-to-notify penalty due to a prior juvenile

adjudication.” Id. Moreover, the court noted that “R.C. Chapter 2950, including

the failure-to-notify provision, reflects a legislative policy decision that individuals

labeled as juvenile sex offenders pose an increased risk to public safety and that

requiring these individuals to comply with the registration and notification

provisions attempts to minimize that risk.” Id. at ¶ 13, citing R.C. 2950.02 and State

v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, ¶ 36. As a result, the court

determined that R.C. 2950.05(F)(1) “contains none of the evils the Carnes court

suggested might make a statute constitutionally infirm when applied to juvenile

adjudications.” Id. Accordingly, the court concluded that the defendant’s “failure-

to-notify conviction [did not] obviously violate[] his due process rights.” Id. at ¶

16.

       {¶17} We agree with the First and Fourth Districts’ analyses. R.C. 2950.05

clearly does not treat a juvenile sex-offense adjudication as an adult conviction.

Instead, a person’s duty to provide notice of a change of address can arise from

either a juvenile sex-offense adjudication or an adult conviction.           See R.C.


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2950.05(A)-(B). Like the weapons-under-disability statute, in which a juvenile

adjudication serves as an alternative disability condition, R.C. 2950.05 treats a

juvenile sex-offense adjudication as a discrete and sufficient basis to require a

person to provide notice of a change of address. Furthermore, R.C. 2950.05 does

not use the fact of a prior juvenile sex-offense adjudication to enhance the degree of

or the sentence for a failure-to-provide-notice-of-change-of-address offense.

Instead, the degree of and sentence for a failure-to-provide-notice-of-change-of-

address offense are inextricably linked to the type and degree of the offense that

gave rise to the offender’s duty to provide notice of a change of address. See R.C.

2950.99(A)(1). Therefore, in this respect, R.C. 2950.05 is also analogous to the

weapons-under-disability statute that survived constitutional challenge in Carnes.

Finally, as noted by the Fourth District in Young, R.C. Chapter 2950, including R.C.

2950.05’s notification requirements, reflects a legislative policy judgment that

“[s]ex offenders and child-victim offenders pose a risk of engaging in further

sexually abusive behavior even after being released from [confinement]” and that

this risk may be mitigated “[i]f the public is provided adequate notice and

information about offenders and delinquent children who commit sexually oriented

offenses or who commit child-victim oriented offenses * * *.” R.C. 2950.02(A)(1)-

(2). We believe that the lack of the right to a jury trial does not make a juvenile sex-

offense adjudication unreliable for risk-assessment purposes, and in this way, R.C.


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2950.05 shares further similarities with the weapons-under-disability statute. See

Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, at ¶ 16-17.

       {¶18} In sum, we conclude that Hand does not bar the use of a prior juvenile

sex-offense adjudication as an element of a failure-to-provide-notice-of-change-of-

address offense or, in this case, an attempted-failure-to-provide-notice-of-change-

of-address offense. Therefore, we conclude that Shazier’s constitutional rights to

due process were not violated when the trial court accepted his guilty plea.

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

                        The State’s Assignment of Error

       Whether the trial court abused its discretion in sentencing the
       Appellant [sic] to community control where the statute requires
       a mandatory prison sentence?

                     Shazier’s Assignment of Error No. II

       If this Court orders the trial court to impose a prison term
       pursuant to the State’s assignment of error, this Court should
       also vacate the decision to impose court costs and court-
       appointed-counsel fees. Judgment Entry/Sentencing (Mar. 4,
       2019) R.C. 2941.51(D).

       {¶20} In its assignment of error, the State argues that Shazier’s sentence is

contrary to law. Specifically, the State argues that because Shazier had previously

pleaded guilty to a first- or second-degree felony, the trial court did not have the

ability to sentence Shazier to community control for the instant offense of second-

degree felony attempted failure to provide notice of change of address.


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(Appellant/Cross-Appellee’s Brief at 2-3). In his second assignment of error,

Shazier argues that if the State’s assignment of error is sustained, we should also

vacate the portion of the trial court’s March 4, 2019 judgment ordering him to pay

court costs and attorney’s fees because the trial court must consider whether a prison

term will impact his ability to pay such costs. (Appellee/Cross-Appellant’s Brief at

21).

       {¶21} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

       {¶22} After reviewing the record, we conclude that Shazier’s sentence is

clearly and convincingly contrary to law.         Generally, trial courts have broad

discretion to fashion appropriate sentences for felony offenders.              See R.C.

2929.13(A) (Oct. 31, 2018). Here, Shazier pleaded guilty to attempted failure to

provide notice of change of address, a second-degree felony. “Except as provided

in [R.C. 2929.13(E) or (F)], for a felony of the * * * second degree, * * * it is


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presumed that a prison term is necessary in order to comply with the purposes and

principles of sentencing under [R.C. 2929.11].” R.C. 2929.13(D)(1) (Oct. 31,

2018). Even so, a trial court may impose a community control sanction or a

combination of community control sanctions instead of a prison term on a second-

degree felony offender if the trial court finds that a community control sanction

would adequately punish the offender, protect the public from future crime, and not

demean the seriousness of the offense.        R.C. 2929.13(D)(2) (Oct. 31, 2018).

Accordingly, although it is presumed that a prison term is required for a second-

degree felony conviction, a prison term is not mandatory in every instance.

      {¶23} However, as indicated in the preceding paragraph, R.C. 2929.13(D) is

expressly subject to the requirements of R.C. 2929.13(F).       “R.C. 2929.13(F)

addresses mandatory prison terms and lists offenses for which a sentencing court is

obligated to impose a prison term.” State v. Johnson, 116 Ohio St.3d 541, 2008-

Ohio-69, ¶ 9. As relevant to this case, R.C. 2929.13(F) provides:

      (F) Notwithstanding [R.C. 2929.13(A) to (E)], the court shall

      impose a prison term * * * under * * * [R.C. 2929.14] * * * for any

      of the following offenses:

      ***

      (6) Any offense that is a * * * second degree felony and that is not

      set forth in [R.C. 2929.13(F)(1), (2), (3), or (4)], if the offender


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       previously was convicted of or pleaded guilty to * * * any * * * second

       degree felony * * *[.]

R.C. 2929.13(F)(6) (Oct. 31, 2018).         Thus, “R.C. 2929.13(F)(6) requires a

mandatory prison term for any offense that is a * * * second-degree felony when the

defendant has a prior conviction for a * * * second-degree felony.” State v. Kinney,

1st Dist. Hamilton No. C-160415, 2018-Ohio-404, ¶ 23.

       {¶24} Applying the foregoing to the facts of this case, we conclude that under

R.C. 2929.13(F)(6), the trial court was required to sentence Shazier to a prison term.

As noted above, the instant offense was not the first offense to which Shazier

pleaded guilty. As an adult, Shazier pleaded guilty to felony offenses on two

previous occasions, and it is certain that at least one of the offenses to which he

previously pleaded guilty was a second-degree felony. (PSI at 4); (Feb. 5, 2019 Tr.

at 3-4, 9); (Mar. 4, 2019 Tr. at 3, 6). Furthermore, Shazier’s present attempted-

failure-to-provide-notice-of-change-of-address conviction is a second-degree

felony and is not one of the offenses set forth in R.C. 2929.13(F)(1), (2), (3), or (4).

Therefore, because Shazier pleaded guilty to a second-degree felony after having

earlier pleaded guilty to a different second-degree felony, R.C. 2929.13(F)(6)

required the trial court to impose a prison term; the trial court was not authorized to

impose a community-control sanction.




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       {¶25} Shazier concedes that R.C. 2929.13(F)(6) appears to require the

imposition of a prison term under the facts of this case.           (Appellee/Cross-

Appellant’s Brief at 7). However, he argues that in sentencing him to a community-

control sanction, “[t]he trial court correctly navigated between two code sections

that, when viewed in isolation, appear to require different results under the facts of

this case—R.C. 2929.11 requires community control, and R.C. [2929.13(F)(6)]

appears to require prison.” (Id.). Shazier contends that when R.C. 2929.11 and

2929.13(F)(6) are read together, the trial court was required to sentence him to

community control because R.C 2929.13(F)(6) “applies ‘notwithstanding’ [R.C.

2929.13(A) to (E)], but does not apply ‘notwithstanding’ R.C. 2929.11” and “R.C.

2929.11 expressly states that it describes the ‘overriding’ purposes of felony

sentencing, which, by its own terms, ‘overrides’ other sentencing provisions.” (Id.).

       {¶26} Shazier’s arguments are unpersuasive. First, we believe that Shazier

misunderstands the meaning of the word “overriding” as it is used in R.C. 2929.11.

R.C. 2929.11 provides in pertinent part:

       (A) A court that sentences an offender for a felony shall be guided

       by the overriding purposes of felony sentencing. The overriding

       purposes of felony sentencing are to protect the public from future

       crime by the offender and others, to punish the offender, and to

       promote the effective rehabilitation of the offender using the


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       minimum sanctions that the court determines accomplish those

       purposes without imposing an unnecessary burden on state or local

       government resources. * * *

       (B) A sentence imposed for a felony shall be reasonably calculated

       to achieve the three overriding purposes of felony sentencing * * *.

R.C. 2929.11(A), (B). In our view, use of the term “overriding” in R.C. 2929.11

merely suggests that although there may be purposes of felony sentencing other than

those listed in R.C. 2929.11(A), such purposes are subordinate to the “overriding”

purposes of felony sentencing. In other words, when selecting between possible

sentences, R.C. 2929.11 directs trial courts to choose the sentence that reasonably

accomplishes the three “overriding” purposes of felony sentencing rather than a

sentence that achieves some inferior purpose. There is simply nothing in R.C.

2929.11 indicating that the legislature intended to “override” all other sentencing

statutes by authorizing a trial court to deviate from clear sentencing directives,

including R.C. 2929.13(F)’s mandatory-prison-term requirement, if the trial court

concludes that a particular sentence, though mandated by statute under the facts of

the case, is, in its own judgment, poorly calculated to achieve the purposes of felony

sentencing.

       {¶27} Moreover, other felony-sentencing statutes foreclose Shazier’s

interpretation of R.C. 2929.11 and 2929.13(F)(6). R.C. 2929.12(A) provides that


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“[u]nless otherwise required by [R.C. 2929.13] * * *, a court that imposes a sentence

under [Chapter 2929] upon an offender for a felony has discretion to determine the

most effective way to comply with the purposes and principles of sentencing set

forth in [R.C. 2929.11].” R.C. 2929.12(A) therefore recognizes that a trial court’s

discretion to determine the most effective way to comply with the overriding

purposes of felony sentencing may be curtailed by the legislature, and throughout

R.C. 2929.13, the legislature did just that. In R.C. 2929.13(F)(6), the legislature

determined that, regardless of R.C. 2929.13(D)(1)’s presumption that a prison term

is necessary to achieve the overriding purposes of felony sentencing, a prison term

is mandatory for a second-degree felony offense if the offender was previously

convicted of or pleaded guilty to a second-degree felony. Therefore, in R.C.

2929.13(F)(6), the legislature acknowledged the (restricted) discretion trial courts

have under R.C. 2929.13(D)(1) and (2) to determine whether prison terms are

necessary to achieve the overriding purposes of felony sentencing as to second-

degree felonies generally, but decided that trial courts should not have the same

discretion with respect to successive second-degree felony convictions. In essence,

the legislature concluded that a prison term is conclusively the sentence most

reasonably calculated to achieve the overriding purposes of felony sentencing under

the circumstances set forth in R.C. 2929.13(F)(6). While R.C. 2929.13(F)(6) does

not state that it applies “notwithstanding R.C. 2929.11,” R.C. 2929.11 and the


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overriding purposes of felony sentencing are clearly accounted for in R.C.

2929.13(F)(6).

       {¶28} In sum, we conclude that because Shazier pleaded guilty to the instant

offense, a second-degree felony, after having previously pleaded guilty to a different

second-degree felony, the trial court was not authorized to sentence Shazier to a

community-control sanction, but was instead required to sentence him to a prison

term under R.C. 2929.13(F)(6). Therefore, because Shazier was sentenced to a

community-control sanction rather than a prison term, we conclude that Shazier’s

sentence is clearly and convincingly contrary to law. Accordingly, the State’s

assignment of error is sustained.

       {¶29} Having sustained the State’s assignment of error, we may now

consider Shazier’s second assignment of error, in which he argues that the judgment

for court costs and court-appointed-counsel fees should also be vacated so that the

trial court may reconsider whether to hold him responsible for payment of such costs

and fees in light of the fact that he will now be required to serve a prison term. With

respect to Shazier’s second assignment of error, the State “agrees that if this Court

should remand the case for further sentencing hearing, the trial court would also be

able to consider the issue of court[] costs and fees at that time.” (Appellant/Cross-

Appellee’s Reply and Answer Brief at 6). We agree that, on remand, it would be

appropriate for the trial court to reconsider Shazier’s responsibility for paying court


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costs and court-appointed-counsel fees. Thus, Shazier’s second assignment of error

is sustained.

       {¶30} Having found no error prejudicial to the appellee/cross-appellant

herein in the particulars assigned and argued with respect to his first assignment of

error, we affirm the judgment of the trial court as to that matter. However, having

found error prejudicial to the appellant/cross-appellee herein in the particulars

assigned and argued and to the appellee/cross-appellant with respect to his second

assignment of error, we reverse the judgment of the trial court as to those matters

and remand to the trial court for further proceedings consistent with this opinion.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part and
                                                               Cause Remanded

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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