[Cite as State v. Lilly, 2018-Ohio-1014.]



                                       IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




STATE OF OHIO,                                     :
                                                         CASE NOS. CA2017-06-029
        Plaintiff-Appellee,                        :               CA2017-06-030

                                                   :             OPINION
    - vs -                                                        3/19/2018
                                                   :

JEREMY THOMAS LILLY,                               :

        Defendant-Appellant.                       :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                  Case Nos. 2016 CR 00616, 2016 CR 00733



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for defendant-appellant



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, Jeremy Thomas Lilly, appeals his sentence in the

Clermont County Court of Common Pleas. For the reasons set forth below, we affirm his

sentence.

        {¶ 2} On November 8, 2016, the Clermont County Grand Jury returned a 16-count

indictment charging Lilly with 9 fourth-degree felony counts of grand theft of a motor vehicle,

two fifth-degree felony counts of arson, one fifth-degree felony count of theft from a person in
                                                                   Clermont CA2017-06-029
                                                                            CA2017-06-030

a protected class, two fifth-degree felony counts of breaking and entering, and two

misdemeanor counts of attempted breaking and entering. On December 20, 2016, the

Clermont County Grand Jury returned a two-count indictment charging Lilly with fifth-degree

felony breaking and entering and fourth-degree felony safecracking.

       {¶ 3} Lilly pled guilty to 9 fourth-degree felony counts of grand theft of a motor

vehicle, one fifth-degree felony count of theft from a person in a protected class, and three

fifth-degree felony counts of breaking and entering. On February 15, 2017, the trial court

found community control sanctions inconsistent with the principles and purposes of felony

sentencing and sentenced Lilly to an aggregate 60-month prison term. However, prior to

journalizing a sentencing entry, the trial court continued the sentence so that it could comply

with R.C. 2929.13(B). On February 28, 2017, the trial court requested the Ohio Department

of Rehabilitation and Correction ("ODRC") to provide it with the names of, contact information

for, and programs details of one or more community control sanctions of at least one year's

duration that were possibly available for Lilly.

       {¶ 4} The trial court, concerned that R.C. 2929.13(B) may violate the separation of

powers doctrine, issued a briefing schedule regarding the constitutionality of the statute and

invited the Ohio attorney general to respond to the issue. The attorney general moved to

intervene and filed a brief supporting the constitutionality of the statute. On April 19, 2017,

the ODRC provided the trial court with a list of community control options, but did not provide

any details regarding the listed programs. On May 19, 2017, the trial court held a second

sentencing hearing. The trial court found R.C. 2929.13(B) constitutional and sentenced Lilly

to an aggregate prison term of 60 months. On May 22, 2017, the trial court issued an

amended judgment entry reflecting the aggregate prison term.

       {¶ 5} Lilly now appeals from his sentence.

       {¶ 6} Assignment of Error No. 1:
                                              -2-
                                                                     Clermont CA2017-06-029
                                                                              CA2017-06-030

       {¶ 7} THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM[.]

       {¶ 8} Assignment of Error No. 2:

       {¶ 9} THE TRIAL COURT ERRED IN APPLYING A "PURPOSES AND PRINCIPLES

OF SENTENCING" TEST TO THE PROGRAMS IDENTIFIED BY THE ODRC[.]

       {¶ 10} Assignment of Error No. 3:

       {¶ 11} PROVISIONS OF R.C. 2929.13(B) ARE UNCONSTITUTIONAL AS

VIOLATIVE OF THE SEPARATION OF POWERS DOCTRINE[.]

       {¶ 12} Lilly contends the trial court did not have the discretion to sentence him to a

prison term because R.C. 2929.13(B) dictates that imposition of a community control

sanction is the only permissible sentence available to the facts of this case. In so doing, Lilly

argues the statute applies to a defendant who pleads guilty to multiple felonies of the fourth

and fifth degrees, and at a minimum, the statute is ambiguous and the rule of lenity applies.

Therefore, the trial court erred in conducting an analysis of the principles and purposes of

sentencing. Lilly further contends that certain provisions of R.C. 2929.13(B) violate the

separation of powers doctrine, and therefore, are unconstitutional.

       {¶ 13} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; accord State v. Crawford, 12th

Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. As explained in Marcum, “[t]he

appellate court’s standard for review is not whether the sentencing court abused its

discretion.” (Emphasis deleted.) Marcum at ¶ 9. Rather, pursuant to R.C. 2953.08(G)(2), an

appellate court may only "increase, reduce, or otherwise modify a sentence * * * or may

vacate the sentence and remand the matter to the sentencing court for resentencing" if the

court finds by clear and convincing evidence “(a) [t]hat the record does not support the

sentencing court’s findings[,]” or “(b) [t]hat the sentence is otherwise contrary to law.” R.C.

2953.08(G)(2)(a)-(b). Thus, "the language in R.C. 2953.08(G)(2) establishes an 'extremely
                                               -3-
                                                                     Clermont CA2017-06-029
                                                                              CA2017-06-030

deferential standard of review.'" Crawford at ¶ 8.

       {¶ 14} A sentence is not “clearly and convincingly contrary to law where the trial court

considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range.” State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No. CA2014-02-016, 2014-Ohio-

5191, ¶ 6.

       {¶ 15} R.C. 2929.13(B)(1)(a) provides:

              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 or that is a
              qualifying assault offense, the court shall sentence the offender
              to a 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.

              (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.

Thus, "R.C. 2929.13(B)(1)(a) sets forth a presumption for community control 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." State v. Napier, 12th Dist. Clermont No. CA2016-04-022, 2017-Ohio-246, ¶ 44.

However, the presumption is subject to the exceptions listed in R.C. 2929.13(B)(1)(b). State
                                               -4-
                                                                      Clermont CA2017-06-029
                                                                               CA2017-06-030

v. Parrado, 11th Dist. Trumbull No. 2015-T-0069, 2016-Ohio-1313, ¶ 16.

       {¶ 16} R.C. 2929.13(B)(1)(c) provides the procedure for a trial court to comply with its

statutory requirements under the section, and states, if a court:

              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 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.

Then, "[n]ot later than forty-five days after receipt" of such a request from a court, the ODRC

"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." R.C. 2929.13(B)(1)(c). If the ODRC "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." Id. If the ODRC does not provide

such information within the 45-day period, "the court may impose upon the offender a prison

term under" R.C. 2929.13(B)(1)(b)(iv).

       {¶ 17} Specifically, R.C. 2929.13(B)(1)(b)(iv) provides:

              (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 or that is a
              qualifying assault offense if * * *:

              ***

              (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
                                                -5-
                                                                     Clermont CA2017-06-029
                                                                              CA2017-06-030

              sanction of at least one year's duration that is available for
              persons sentenced by the court.

       {¶ 18} In consideration of the 45-day period described above, it is clear R.C. 2929.13

provided the trial court discretion to sentence Lilly to a prison term. On February 15, 2017,

the trial court found community control sanctions inconsistent with the principles and

purposes of felony sentencing. On February 28, 2017, the trial court requested the ODRC to

provide it with the names of, contact information for, and programs details of one or more

community control sanctions of at least one-year's duration that may have been available for

Lilly. Therefore, the trial court complied with the procedure set forth in R.C. 2929.13(B)(1)(c).

       {¶ 19} On April 19, 2017, the ODRC provided the trial court with a list of possible

community control sanctions. Therefore, 50 days had passed before the ODRC provided the

trial court with such possible sanctions. Thus, pursuant to R.C. 2929.13(B)(1)(b)(iv), the trial

court had discretion to sentence Lilly to a prison term. Furthermore, after a thorough review

of the record, we find no error in the trial court's decision to sentence Lilly to an aggregate

60-month prison term. The record reflects that Lilly's sentence is not clearly and convincingly

contrary to law because the trial court considered the principles and purposes of felony

sentencing pursuant to R.C. 2929.11, weighed the seriousness and recidivism factors set

forth under R.C. 2929.12, and its findings were supported by the record.

       {¶ 20} In consideration of our finding that the sentence imposed by the trial court was

not clearly and convincingly contrary to law, we find Lilly's remaining arguments regarding

R.C. 2929.13(B) moot.

       {¶ 21} Accordingly, Lilly's first, second, and third assignments of error are overruled.

       {¶ 22} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.



                                               -6-
