[Cite as State v. Leasure, 2018-Ohio-1470.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 17 CA 33
GARY R. LEASURE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 17 CR 19


JUDGMENT:                                      Reversed



DATE OF JUDGMENT ENTRY:                        April 13, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

R. KYLE WITT                                   SCOTT P. WOOD
PROSECUTING ATTORNEY                           CONRAD & WOOD
CHRISTOPHER REAMER                             120 East Main Street
ASSISTANT PROSECUTOR                           Suite 200
239 West Main Street, Suite 101                Lancaster, Ohio 43130
Lancaster, Ohio 43130
Fairfield County, Case No. 17 CA 33                                                    2

Wise, John, P. J.

      {¶1} Appellant Gary R. Leasure appeals his sentence entered in the Fairfield

County Court of Common Pleas following a plea of guilty to one count of trespassing,

one count of violation of a protection order, and one count of resisting arrest.

                          STATEMENT OF THE FACTS AND CASE

      {¶2} The relevant facts and procedural history are as follows:

      {¶3} On January 13, 2017, Appellant Gary Leasure was indicted on the following

counts: Count 1: possession of heroin, in violation of R.C. §2925.11 (C)(6)(a), a felony

of the fifth degree; Count 2: possession of drug abuse instruments, in violation of R.C.

§2925.12, a misdemeanor of the second degree; Count 3: Trespass in a permanent or

a temporary habitation, in violation of R.C. §2911.12(8), a felony of the fourth degree;

Count 4: violation of a protection order, in violation of R.C. §2919.27, a misdemeanor of

the first degree; and, Count 5: resisting arrest, in violation of R.C. §2921.33, a

misdemeanor of the second degree, to which Appellant entered pleas of not guilty.

      {¶4} On March 31, 2017, Appellant entered a guilty plea to Count 3, Count 4 and

Count 5, a felony and two misdemeanors, and was placed on 5 years of community

control.

      {¶5} On July 6, 2017, a motion was filed to revoke Appellant's community control.

      {¶6} On July 31, 2017, an oral hearing was held on the motion to revoke

Appellant's community control. At that time, Appellant waived his right to a hearing and

stipulated to violations of his community control. Further, Appellant requested that the

trial court impose the balance of his sentence. Appellant further requested that the
Fairfield County, Case No. 17 CA 33                                                      3


sentences for the two misdemeanor violations run concurrent with the felony sentence.

(Revocation Hearing, T. at 6-7).

      {¶7} At the revocation hearing, the trial court revoked Appellant's community

control and imposed a sentence of 16 months in a state penal institution on Count 3.

With regard to Count 5, the trial court ordered that 90 days in the Fairfield County Jail

run concurrent with the 16 month prison sentence. On Count 4, the trial court ordered

that Appellant be sentenced to 180 days in the Fairfield County Jail, consecutive to the

16 month prison sentence. The trial court also gave Appellant 210 days of jail time credit.

(Revocation Hearing, T. at 11).

      {¶8} As a result of the trial court's imposition of consecutive sentencing with

regard to Count 3 and Count 4, 180 days of the 210 days of jail time credit was first

applied to the misdemeanor sentence and only 30 days was applied to the 16 month

prison sentence.

      {¶9} Appellant now appeals, assigning the following error for review:

                                   ASSIGNMENT OF ERROR

      {¶10} “I. THE TRIAL COURT ERRED IN IMPOSING A SENTENCE THAT IS

CONTRARY TO LAW.”

                                               I.

      {¶11} In his sole assignment of error, Appellant argues that the trial court erred in

imposing consecutive sentences in this matter. We agree.

      {¶12} Appellant herein argues that the trial court erred by failing to run his

misdemeanor jail sentences concurrent to his felony prison sentence pursuant to R.C.

§2929.41(A) provides, in relevant part:
Fairfield County, Case No. 17 CA 33                                                  4


            Except as provided in division (B)(3) of this section, a jail term or

      sentence of imprisonment for misdemeanor shall be served concurrently

      with a prison term or sentence of imprisonment for felony served in a state

      or federal correctional institution.

      {¶13} This language was recently discussed by the Supreme Court of Ohio in State

v. Polus, 145 Ohio St.3d 266, 2016–Ohio–655, 48 N.E.3d 553, where the court held that

a trial court must impose concurrent sentences for felony and misdemeanor convictions

under R.C. §2929.41(A) unless the exception within R.C. §2929.41(B)(3) pertaining to

certain motor vehicle offenses applies.

      {¶14} In this case, the parties acknowledge that the exception found in R.C.

§2929.41(B)(3) does not apply. Thus, we find that the trial court erred in imposing

consecutive sentences for Appellant's felony and misdemeanor offenses.

      {¶15} Appellant's sole assignment of error is sustained.

      {¶16} For the forgoing reasons, the judgment of the Fairfield County Court of

Common Pleas is reversed. Pursuant to App.R. 12(B), we modify the trial court's order

by instructing that Appellant's misdemeanor sentence of 180 days in jail on Count Four,

Violation of a Protection Order, in violation of R.C. §2919.27(A)(1), is to be served
Fairfield County, Case No. 17 CA 33                                                   5


concurrently with his 16 month felony sentence on Count Three, Trespass in a Habitation,

in violation of R.C. §2911.12(B).


By: Wise, John, P. J.

Hoffman, J., and

Wise, Earle, J., concur.




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