[Cite as State v. Arnold, 2017-Ohio-1384.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   C.A. CASE NO. 27218
                                                   :
 v.                                                :   T.C. NO. 15-CR-2916
                                                   :
 ZANE B. ARNOLD                                    :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                 Rendered on the ___14th ___ day of _____April_____, 2017.

                                              ...........

HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

DAVID R. MILES, Atty. Reg. No. 0013841, 125 West Main Street, Suite 201, Fairborn,
Ohio 45324
      Attorney for Defendant-Appellant

                                             .............

FROELICH, J.

        {¶ 1} Zane B. Arnold was found guilty on his guilty pleas of possession of cocaine

(27g but less than 100g), a felony of the first degree; possession of heroin (10g but less

than 50g), a felony of the second degree; and aggravated possession of drugs (5x bulk

but less than 50x bulk), also a felony of the second degree. He was sentenced to a five-
                                                                                            -2-


year mandatory term on each offense, to be served concurrently.            The court also

suspended Arnold’s driver’s license for five years, ordered him to pay court costs, and

imposed mandatory terms of post-release control. Arnold appeals, arguing that the court

should have imposed a three-year sentence.

       {¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

       {¶ 3} On September 25, 2015, Arnold was indicted for possession of cocaine,

possession of heroin, and two counts of aggravated possession of drugs

(methamphetamine and fentanyl). He pled not guilty and filed a motion to suppress,

which was overruled after a hearing. On July 14, 2016, Arnold pled guilty to possession

of   cocaine,   possession    of   heroin,   and    aggravated    possession     of   drugs

(methamphetamine), as charged in the indictment; the fourth count, aggravated

possession of drugs (fentanyl), was dismissed. The range of potential sentences for

possession of cocaine, a felony of the first degree, was three to eleven years, and for the

other offenses (felonies of the second degree), it was two to eight years. However, the

parties agreed that Arnold would receive a prison sentence to “be capped at a maximum

of five years.” After a presentence investigation, the court imposed a five-year sentence

on each count, to be served concurrently, along with other sanctions described above.

       {¶ 4} As a preliminary matter, we must address whether Arnold may assign his

sentence as error, where the sentence was an agreed sentence. R.C. 2953.08(D)(1)

provides that “[a] sentence imposed upon a defendant is not subject to review under this

section if the sentence is authorized by law, has been recommended jointly by the

defendant and the prosecution in the case, and is imposed by a sentencing judge.” In

accordance with R.C. 2953.08(D), we have held that agreed sentences are not
                                                                                        -3-

reviewable on appeal. State v. DeWitt, 2d Dist. Montgomery No. 24437, 2012-Ohio-635,

¶ 13; State v. Turner, 2d Dist. Montgomery No. 24421, 2011-Ohio-6714. We have also

held that a sentence within a jointly-recommended range is a jointly-recommended

sentence for purposes of R.C. 2953.08. State v. Chattams, 2d Dist. Montgomery No.

26151, 2015-Ohio-453, ¶ 5, citing DeWitt at ¶ 13-15; cf. State v. Connors, 2d Dist.

Montgomery No. 26721, 2016-Ohio-3195, fn. 2. An agreement to “cap” a sentence is

analogous to an agreement to impose a sentence within an agreed range, for purposes

of R.C. 2953.08.

      {¶ 5} Arnold concedes that his sentence was authorized by law. The prison terms

were within the statutory ranges for felonies of the first and second degree, and were “not

contrary to law”; mandatory prison time was required. He also does not dispute that the

sentence imposed by the trial judge was within the jointly-recommended range.

Accordingly, Arnold’s agreed-upon sentence is not reviewable on appeal. Dewitt at ¶ 15;

Turner at ¶ 33.

      {¶ 6} The assignment of error is overruled.

      {¶ 7} The judgment of the trial court will be affirmed.



                                        .............

WELBAUM, J. and TUCKER, J., concur.

Copies mailed to:

Heather N. Jans
David R. Miles
Hon. Mary L. Wiseman
