[Cite as State v. Davis, 2016-Ohio-7319.]



                             STATE OF OHIO, BELMONT COUNTY
                                   IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO                                    )
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )           CASE NO. 15 BE 0034
VS.                                              )
                                                 )                  OPINION
ALEXANDER DAVIS, JR.                             )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from the Court of
                                                 Common Pleas of Belmont County, Ohio
                                                 Case No. 14 CR 282

JUDGMENT:                                        Reversed and remanded.

APPEARANCES:
For Plaintiff-Appellee                           Attorney Daniel P. Fry
                                                 Belmont County Prosecutor
                                                 Attorney J. Flanagan
                                                 Assistant Prosecutor
                                                 147-A West Main Street
                                                 St. Clairsville, Ohio49350

For Defendant-Appellant                          Attorney Brent Clyburn
                                                 604 Sixth Street
                                                 Moundsville, WV 26041

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                 Dated: October 7, 2016
[Cite as State v. Davis, 2016-Ohio-7319.]
DeGENARO, J.

        {¶1}     Defendant-Appellant Alexander Davis, Jr. appeals the trial court's
judgment, arguing the court erred in sentencing him to a maximum term. Although we
conclude the eight-year term chosen is supported by the record, the trial court erred
in its post-release control notification. Accordingly, the trial court's judgment is
reversed in part, remand for limited resentencing hearing with regard to post-release
control pursuant to R.C. 2929.191(C)
        {¶2}     Davis pled guilty to one count of drug trafficking, a second-degree
felony. A presentence investigation was ordered and prepared. Following a
sentencing hearing, the trial court imposed a maximum eight-year prison term.
        {¶3}     In his sole assignment of error, Davis asserts:

        The trial court erred in sentencing the defendant-appellant, Alexander
        Davis, Jr., to a maximum prison term of eight (8) years following his
        conviction for one (1) count of "trafficking in drugs," a felony of the
        second degree.

        {¶4}     We review a felony sentence to determine whether the trial court's
findings—or where findings are not required, the sentence itself—are clearly and
convincingly unsupported by the record, or whether the sentence is otherwise
contrary to law. R.C. 2953.08(G)(2); State v. Marcum, Slip Opinion 2016-Ohio-1002,
¶ 1; ¶ 23.
        {¶5}     This case presents us with one of our first opportunities to interpret or
apply Marcum in great detail. However, as the Eighth District recently held, Marcum
does not permit appellate courts to independently weigh the sentencing factors in
R.C. 2929.12 on review. State v. Ongert, 8th Dist. No. 103208, 2016-Ohio-1543, ¶
14. The court continued:

        * * * the Marcum analysis applies to situations in which not one
        sentencing factor supports a stated prison term or the trial court
        erroneously relied on factors that did not exist. For instance, if the trial
        court had specifically indicated that the defendant's criminal history
                                                                                -2-


       supported the stated prison term, but the defendant was a first-time
       offender and no other factor in favor of the sentence existed, then the
       Marcum standard would apply and the appellate court may take the
       appropriate action. See, e.g., State v. Whitt, 2d Dist. Clark No. 2014-
       CA-125, 2016-Ohio-843, ¶ 8 (trial court was not required to, but
       provided reasons for imposing the sentence, and those reasons were
       supported by the record).

(Emphasis added.) Ongert at ¶ 13.
       {¶6}   The trial court here was not required to make any findings under the
statutes referenced by R.C. 2953.08(G) before imposing a sentence. Davis argues a
maximum eight-year term was improper because the trial court mischaracterized
some of his criminal history and relied upon the same in sentencing him. Specifically,
he maintains the trial court relied upon the fact that he had a prior conviction for drug
trafficking that was actually a conviction for attempted trafficking, and another for
drug possession of drugs that was in fact for attempted possession. Further, Davis
claims the court included in its recitation of his criminal history a robbery conviction
where the disposition of that charge was actually unknown.
       {¶7}   Davis cites State v. Collins, 4th Dist. No. 03CA29, 2004-Ohio-3606, for
his assertion that when a trial court specifically relies on inaccurate information at
sentencing, which, in turn, affects its findings and considerations, such may
constitute error. However, Collins does not support reversal of Davis' sentence
because in that case defense counsel brought the inaccuracies to the attention of the
trial court at sentencing, and, moreover, the appellate court found Collins had not
demonstrated that the trial court specifically relied on the alleged inaccuracies, and
thus were at most, harmless error. Id. at ¶ 23- ¶ 24.
       {¶8}   Here the trial court's slight mischaracterization of Davis' criminal record
is also harmless. While three crimes were misstated, 21 others were accurately
portrayed. Furthermore, in its sentencing entry, the trial court accurately related 19
crimes for which Davis had been convicted, including the two that had been
                                                                                 -3-


misstated at sentencing.      Finally, in its findings relative to the R.C. 2929.12(B) and
(D) factors it considered before sentencing him to the maximum term, the trial court
referenced several additional factors it considered prior to sentencing including the
fact that Davis "has not responded to sanctions previously imposed" and that he "has
an established pattern of criminal activity without 'good faith' treatment and/or an
effort to change his lifestyle."
       {¶9}    Having concluded the eight-year prison term is supported by the record,
we must determine whether the sentence is otherwise contrary to law. "A trial court's
sentence would be contrary to law if, for example, it were outside the statutory range,
in contravention to a statute, or decided pursuant to an unconstitutional statute."
State v. Wolters, 7th Dist. No. 14 NO 417, 2014-Ohio-5515, ¶ 9. Davis was afforded
his allocution rights pursuant to Crim.R. 32(A)(1). His eight-year sentence was the
maximum permitted under the statutory sentencing range. R.C. 2929.14(A)(2). The
trial court considered the principles and purposes of felony sentencing and the
sentencing factors. R.C. 2929.11; R.C. 2929.12.
       {¶10} But the trial court erred in its imposition of postrelease control. During
the hearing and in the sentencing entry, the trial court stated that Davis is subject to a
period of post-release control of "up to three years." (Emphasis added.) Davis was
convicted of a non-sex offense second-degree felony; the proper postrelease control
period for which is a definite three-year term. R.C. 2967.28(B)(2). "The 'up to' three
[year] period of postrelease control is for offenders who committed third, fourth, and
fifth-degree felonies." State v. Rodriguez–Baron, 7th Dist. No. 10–MA–176, 2012–
Ohio–1473, ¶ 17, citing R.C. 2967.28(C). See also State v. Frazier, 7th Dist. No. 14
BE 35, 2015-Ohio-2204, ¶ 17-20.
       {¶11}     In Rodriguez–Baron and Frazier we reversed and remanded for a
limited resentencing pursuant to R.C. 2929.191 for the same circumstances: the
imposition of postrelease control of "up to three years" for a second-degree felony.
Rodriguez–Baron at ¶ 24; Frazier at ¶ 18-20. The same outcome is warranted here.
       {¶12} R.C. 2929.191 establishes a procedure to remedy a sentence that fails
                                                                               -4-


to properly impose a term of postrelease control. It applies to offenders sentenced
after July 11, 2006, who have not yet been released from prison and who fall into at
least one of three categories: those who did not receive notice at the sentencing
hearing that they would be subject to postrelease control; those who did not receive
notice that the parole board could impose a prison term for a violation of postrelease
control; or, those who did not have both of these statutorily mandated notices
incorporated into their sentencing entries. R.C. 2929.191(A) and (B); State v.
Singleton, 124 Ohio St.3d 173, 2009–Ohio–6434, 920 N.E.2d 958, ¶ 1, 23.
       {¶13} Thus, in sum, Davis' assignment of error is meritorious, in part. The trial
court did not err by sentencing him to the maximum eight-year prison term. However,
the trial court erred by failing to impose the proper term of post-release control and
thus, the judgment of the trial court is reversed and the matter remanded for a limited
resentencing regarding post-release control.


Donofrio, P. J., concurs.

Robb, J., concurs.
