[Cite as State v. Moore, 2020-Ohio-2653.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                         Court of Appeals No. L-19-1032

        Appellee                                      Trial Court No. CR0201801127

v.

James Everett Moore                                   DECISION AND JUDGMENT

        Appellant                                     Decided: April 24, 2020

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Clayton M. Gerbitz, for appellant.

                                               *****

        ZMUDA, P.J.
                                            I. Introduction

        {¶ 1} Appellant, James Moore, appeals the judgment of the Lucas County Court of

Common Pleas, sentencing him to 11 years in prison after accepting appellant’s guilty

plea to one count of involuntary manslaughter.
                         A. Facts and Procedural Background

       {¶ 2} On January 19, 2018, appellant was indicted on one count of aggravated

murder in violation of R.C. 2903.01(B) and (F), an unclassified offense, one count of

murder in violation of R.C. 2903.02(B) and 2929.02, an unclassified offense, and one

count of aggravated robbery in violation of R.C. 2911.01(A)(1) and (C), a felony of the

first degree, along with firearm specifications attached to each of the foregoing counts.

At his arraignment, appellant entered pleas of not guilty and the matter proceeded to

discovery.

       {¶ 3} A jury trial in the matter began on January 14, 2019. After several witnesses

testified, a plea agreement was reached between appellant and the state. Pursuant to the

agreement, appellant entered a guilty plea to one count of involuntary manslaughter in

violation of R.C. 2903.04(A) and (C), a felony of the first degree. In exchange for

appellant’s plea, the state agreed to dismiss all of the charges contained in the indictment,

along with their attendant firearm specifications. Following a Crim.R. 11 colloquy, the

trial court accepted appellant’s plea, and continued the matter for sentencing.

       {¶ 4} On January 25, 2019, appellant appeared for sentencing. At the hearing, the

trial court determined that appellant was not previously advised that the involuntary

manslaughter charge to which he previously pled guilty carried a mandatory sentence

under R.C. 2903.04(D)(2). Consequently, the trial court conducted a second plea

hearing, this time advising appellant of the mandatory sentence. Appellant again entered

a guilty plea, and the trial court proceeded immediately to sentencing. Ultimately, the




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court ordered appellant to serve 11 years in prison for the sole involuntary manslaughter

charge. Thereafter, appellant entered his timely notice of appeal.

                                 B. Assignments of Error

       {¶ 5} On appeal, appellant asserts the following assignments of error for our

review:

              I. Appellant’s sentence is not supported by the record and [is]

       contrary to law.

              II. The trial court erred when ordering Appellant to pay fees or costs

       without considering his ability to pay or notifying him at the sentencing

       hearing.

                                        II. Analysis

       {¶ 6} In appellant’s first assignment of error, he argues that the trial court’s

sentence is contrary to law. In his brief, appellant makes essentially two arguments in

support of his first assignment of error. First, appellant argues that the trial court erred

when it applied R.C. 2903.04(D)(2) to the facts of this case, and then imposed what the

court deemed a mandatory sentence pursuant to that statutory section. Second, appellant

contends that the trial court’s maximum sentence does not comport with the principles

and purposes of sentencing under R.C. 2929.11 because the court failed to expressly

reference its consideration of the rehabilitative aspect of sentencing and the court

imposed a sentence that was not consistent with the sentences imposed upon appellant’s

two codefendants, who received sentences of five years and six years, respectively.




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        {¶ 7} In its brief, the state does not provide argument with respect to appellant’s

first assignment of error. Instead the state indicates that it will “rely upon the record of

the proceeding and the sentencing transcript.”

        {¶ 8} Relevant to appellant’s first argument, R.C 2903.04(D) provides, in pertinent

part:

               (D) If an offender is convicted of or pleads guilty to a violation of

        division (A) or (B) of this section and if the felony, misdemeanor, or

        regulatory offense that the offender committed or attempted to commit, that

        proximately resulted in the death of the other person or the unlawful

        termination of another's pregnancy, and that is the basis of the offender's

        violation of division (A) or (B) of this section was a violation of division

        (A) or (B) of section 4511.19 of the Revised Code or of a substantially

        equivalent municipal ordinance or included, as an element of that felony,

        misdemeanor, or regulatory offense, the offender’s operation or

        participation in the operation of a snowmobile, locomotive, watercraft, or

        aircraft while the offender was under the influence of alcohol, a drug of

        abuse, or alcohol and a drug of abuse, both of the following apply:

               ***

               (2) The court shall impose a mandatory prison term for the violation

        of division (A) or (B) of this section from the range of prison terms




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       authorized for the level of the offense under section 2929.14 of the Revised

       Code.

       {¶ 9} Under the foregoing statute, the trial court is required to impose a prison

sentence if the underlying offense supporting the defendant’s conviction for involuntary

manslaughter was an OVI-type offense or an offense that includes as an element the

operation of a vehicle while under the influence of alcohol or a drug of abuse. In this

case, the underlying felony supporting appellant’s conviction for involuntary

manslaughter was aggravated robbery, which may be established without proving that

appellant operated a vehicle while under the influence of alcohol or a drug of abuse.

       {¶ 10} In State v. Anderson, 6th Dist. Lucas No. L-14-1158, 2015-Ohio-1678, we

examined an argument regarding the applicability of R.C. 2903.04(D)(2) to a defendant

who was convicted of involuntary manslaughter on the basis of an underlying aggravated

burglary offense. In that case, unlike here, the trial court did not apply the mandatory

sentence provision under R.C. 2903.04(D)(2), and Anderson argued that the trial court’s

failure to notify him of the mandatory sentence thereunder was error. In rejecting

Anderson’s argument, we stated:

               We note that R.C. 2903.04(D)(2) does require a mandatory prison

       sentence when the offender is convicted of or pleads guilty to a violation of

       division (A) or (B) of that section and if the felony that proximately

       resulted in the death of the other person was a violation of division (A) or

       (B) of R.C. 4511.19. The underlying felony in this case was the offense of




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        aggravated burglary, not R.C. 4511.19. The trial court in this case would

        have erred if it stated that the offense herein carried mandatory time

        pursuant to R.C. 2903.04. See State v. Woodfork, 10th Dist. Franklin No.

        12AP-1092, 2013-Ohio-2428, ¶ 8. (Emphasis sic.)

Id. at ¶ 8.

        {¶ 11} In sentencing appellant, the trial court’s February 1, 2019 judgment entry

describes appellant’s sentence as a “mandatory prison term.” And goes on to impose a

“Mandatory Term of 11 years in the Ohio Department of Rehabilitation and Corrections.”

Because appellant was not convicted for involuntary manslaughter based upon an

underlying OVI-type offense or an offense that includes as an element the operation of a

vehicle while under the influence of alcohol or a drug of abuse, we find that the trial

court’s sentence was contrary to law. See State v. Jones, 6th Dist. Lucas No. L-15-1308,

2017-Ohio-4337 (reversing trial court’s judgment and remanding for resentencing where

trial court erroneously applied R.C. 2903.04(D)(2) when there was no evidence that the

basis of the underlying offense was an OVI).

        {¶ 12} Accordingly, appellant’s first assignment of error is well-taken. In light of

our resolution of appellant’s first assignment of error, we must remand this matter to the

trial court for resentencing. Therefore, appellant’s second assignment of error regarding

costs is moot, and we will not address it.




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                                     III. Conclusion

       {¶ 13} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is reversed, and this matter is remanded to the trial court for resentencing

in accordance with this decision. The costs of the appeal are assessed to the state

pursuant to App.R. 24.


                                                                        Judgment reversed
                                                                           and remanded.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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