[Cite as State v. West, 2012-Ohio-4615.]




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

STATE OF OHIO                                  :
                                               :     Appellate Case No. 24998
        Plaintiff-Appellee                     :
                                               :     Trial Court Case Nos. 06-CR-1264
v.                                             :     Trial Court Case Nos. 09-CR-671
                                               :
MICHAEL O. WEST                                :
                                               :     (Criminal Appeal from
        Defendant-Appellant                    :     (Common Pleas Court)
                                               :
                                            ...........

                                           OPINION

                              Rendered on the 5th day of October, 2012.

                                            ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CARLO C. McGINNIS, Atty. Reg. #0019540, 130 West Second Street, Suite 800, Dayton,
Ohio 45402
       Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1}     Defendant-appellant Michael West appeals from his convictions for Theft and

Grand Theft and the imposition of a twenty-month sentence. West contends that the trial
                                                                                             2


court erred when it failed to apply the amendments to Ohio’s sentencing statutes, which were

effective after the date of his original sentence but prior to the date on which he was sentenced

for violating his conditions of community control.

       {¶ 2}    We conclude that the trial court should have applied the September 30, 2011

amendments to Ohio’s sentencing statutes when it sentenced West on December 27, 2011.

Accordingly, the sentence is Reversed, the order finding West to have violated the conditions

of community control and revoking community control is Affirmed, and this cause is

Remanded for a de novo sentencing.



                                 I. Course of the Proceedings

       {¶ 3}    In 2006, Michael West was indicted on one count of Grand Theft, a felony of

the fourth degree, in violation of R.C. 2913.02(A)(1). He pled guilty to this charge and faced

a potential prison term ranging between six months and eighteen months.               West was

sentenced to five years of community control and was ordered to pay court costs and

restitution, receive chemical dependency treatment, and serve 100 hours of community

service.   The judgment entry provided that West would be subject to a prison term of

seventeen months if he violated any condition of his community control.

       {¶ 4}    In 2009, West was indicted on one count of Theft, a felony of the fifth degree,

in violation of R.C. 2913.71 and R.C. 2913.02(A)(1). West pled guilty to this charge and

faced a potential prison term ranging between six months and twelve months. West was

sentenced to five years of community control and twelve consecutive weekends of detention in

the Montgomery County Jail. The judgment entry provided that West would be subject to a
                                                                                             3


prison term of twelve months if he violated any condition of his community control.

       {¶ 5}    In June 2011, West’s Community Control Officer notified the trial court that

West had absconded. Consequently, West’s probationary period was suspended and a capias

was issued for his arrest. On October 17, 2011, West was provided with written notice of the

alleged violations of his community control sanctions.

       {¶ 6}    A revocation hearing was held on December 15, 2011. At the conclusion of

the hearing, the trial court explained that West would be sentenced to twelve months of

incarceration for his Grand Theft conviction and eight months of incarceration for his Theft

conviction, to be served consecutively. The trial court then stated the following:

               THE COURT: Okay. And I would note for purposes of the record that

       there is a procedural issue for which there is presently no guidance. And I just

       – so I’m proceeding as stated, but I would note that in 09CR671, Felony V

       theft, the amount that got stolen – well, the restitution amount was $900. And

       by virtue of House Bill 86, that would modify that charge from being a felony

       of the fifth degree to being a first degree misdemeanor. And I did not go back

       and check whether or not the recalibration – well, let me – in the ‘06 case, it’s a

       grand theft charge, felony of the fourth degree, and I did not check to see

       whether or not House Bill 86 recalibrated that theft amount that might impact

       the level of offense.

               There is no guidance that I could find as to what to do in a community

       control sanctions revocation situation when there’s the possibility that the

       Defendant’s on supervision for one level of offense, but by virtue or [sic]
                                                                                           4


      House Bill 86, it’s a different level of offense.

              So therefore my approach is just going to be to proceed to impose the

      alternative sentences as they appear in the revocation petition and as they

      existed prior to House Bill 86. But I just note that because it may be an issue

      appropriately raised on appeal on behalf of Mr. West, although given the

      sentence that he’s received, I’m not sure that it – well, it could certainly make

      a difference with regard to the eight month sentence if that got knocked down

      to be a misdemeanor.

              So, I just want the record to be upfront that I recognize there is a legal

      issue there. I don’t think anybody in this room knows how to resolve it. I

      know how the State would argue and I know how Mr. Conboy would argue.

      And so I’m going to go with what I believe is my best judgment at the time

      without any guidance from a superior court, which is to impose the alternative

      sentence as it existed prior to the enactment of House Bill 86 understanding for

      purposes of candor to Mr. Conboy and Mr. West that there may be an issue that

      he would want to raise on appeal with regard to that. Transcript, pp. 8-9.

      {¶ 7}    On December 27, 2011, the trial court entered judgments of conviction and

sentence. West was sentenced to eight months in prison on his Theft offense and twelve

months in prison on his Grand Theft offense. The prison terms were ordered to be served

consecutively. From the judgment, West appeals.



                II. The Trial Court Erred By Failing To Apply H.B. 86
                                                                                           5


       {¶ 8}    West’s three assignments of error state:

               THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE

       STATUTORY AMENDMENTS MADE BY HOUSE BILL 86 WHEN

       SENTENCING DEFENDANT FOR VIOLATIONS OF HIS COMMUNITY

       CONTROL SANCTIONS.

               THE SENTENCE IMPOSED BY TRIAL COURT WAS CONTRARY

       TO LAW.

               THE SENTENCE RENDERED BY TRIAL COURT IMPOSED AN

       UNNECESSARY BURDEN ON STATE RESOURCES.

       {¶ 9}    All three of West’s assignments of error hinge upon his argument that the trial

court erred when it failed to apply the amendments to Ohio’s sentencing statutes that were

made effective by 2011 House Bill 86 (“H.B. 86"). West contends that he would have

received a more favorable sentence if the trial court had applied the amendments at the time of

sentencing. The State does not explicitly take a position in its Brief regarding whether the

amendments should have been applied to West. Rather, the State contends that the trial court

did not err when it sentenced West to a prison term of twenty months.

       {¶ 10} H.B. 86 became effective on September 30, 2011. The General Assembly

expressly provided in Section 4 of H.B. 86 when the amendments were to be applicable: “The

amendments * * * apply to a person who commits an offense specified or penalized under

those sections on or after the effective date of this section and to a person to whom division

(B) of section 1.58(B) of the Revised Code makes the amendments applicable.”

       {¶ 11} R.C. 1.58(B) identifies which law to apply when a statute is amended after the
                                                                                            6


commission of a crime, but before sentence is imposed:           “If the penalty, forfeiture, or

punishment for any offense is reduced by a reenactment or amendment of a statute, the

penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the

statute as amended.”

       {¶ 12} The key phrase in R.C. 1.58(B) is “if not already imposed.” In State v.

Nistelbeck, 10th Dist. Franklin No. 11AP-874, 2012-Ohio-1765, the defendant was convicted

of Abduction in 2009 and was sentenced to a prison term of five years, but his sentence was

stayed, and he was placed on two years of community control. The defendant did not comply

with some of the terms of his community control and his probation officer filed for revocation.

 After the original sentencing, but before the defendant was sentenced for his violations of the

conditions of his community control, the Ohio General Assembly had changed the maximum

penalty for abduction from five years to three years. Despite this change, the trial court

ordered the defendant to serve a four-year term of incarceration. Id. at ¶ 2-5.

       {¶ 13} On appeal, the Nistelbeck court had to determine whether the trial court erred

in failing to apply the amendment to the abduction statute. The key to the court’s analysis

was determining whether a sentence is actually imposed at the time of the original sentencing,

or if the sentence is actually imposed after the violation of the conditions of community

control. The court wrote, at ¶ 7-11:

               To make this determination, we consult both Ohio statutes, specifically

       R.C. 2929.19(B)(5) and the decision of the Ohio Supreme Court in State v.

       Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746.

               R.C. 2929.19(B)(5) reads:
[Cite as State v. West, 2012-Ohio-4615.]
                 “If the sentencing court determines at the sentencing hearing that a

        community control sanction should be imposed and the court is not prohibited

        from imposing a community control sanction, the court shall impose a

        community control sanction. The court shall notify the offender that, if the

        conditions of the sanction are violated, if the offender commits a violation of

        any law, or if the offender leaves this state without the permission of the court

        or the offender's probation officer, the court may impose a more restrictive

        sanction, or may impose a prison term on the offender and shall indicate the

        specific prison term that may be imposed as a sanction for the violation, as

        selected by the court from the range of prison terms for the offense pursuant to

        section 2929.14 of the Revised Code.”

                 The syllabus for Brooks reads:

                 “1. Pursuant to R.C. 2929.19(B)(5), a trial court sentencing an offender

        to a community control sanction is required to deliver the statutorily detailed

        notifications at the sentencing hearing. (State v. Comer, 99 Ohio St.3d 463,

        2003-Ohio-4165, 793 N.E.2d 473, applied and followed.)

                 “2. Pursuant to       R.C. 2929.19(B)(5) and 2929.15(B), a trial court

        sentencing an offender to a community control sanction must, at the time of

        the sentencing, notify the offender of the specific prison term that may be

        imposed for a violation of the conditions of the sanction, as a prerequisite to

        imposing a prison term on the offender for a subsequent violation.”

                 Both Brooks and R.C. 2929.19(B)(5) refer to “the specific prison term

        that may be imposed.” This choice of words implies that the prison term has
                                                                                             8


       not actually been imposed yet, but will be imposed upon revocation of

       community control. If the prison term has not been imposed yet, this is “not

       already imposed” for purposes of R.C. 1.58(B).

              Because the prison term had not already been imposed at the time of

       Nistelbeck's revocation hearing, he is entitled to the benefit of the legislature's

       reduction of his potential sentence for abduction.

       {¶ 14} We agree with the analysis and reasoning of the Tenth District Court of

Appeals in Nistelbeck. West’s original sentencing for Theft and Grand Theft provided for

five years of community control for each violation. He was not sentenced to prison at the

time of either of his original sentences. After his convictions and sentences of community

control, Ohio’s sentencing statutes were amended. Pursuant to H.B. 86 and R.C. 1.58, West

may gain the benefit of these amendments if the “penalty, forfeiture, or punishment” is “not

already imposed” as of September 30, 2011. The trial court did not sentence West to prison

until December 27, 2011, well after the date on which H.B. 86 became effective. Therefore,

the punishment of twenty months in prison was “not already imposed” at the time of the

amendments to Ohio’s sentencing statutes. R.C. 1.58. The trial court erred by not applying

the amendments to Ohio’s sentencing statutes to West at the time of sentencing.

       {¶ 15} The trial court made it clear at the sentencing hearing that it was not applying

the amendments to Ohio’s sentencing statutes to West (Transcript, pp. 8-9). Thus, error is

demonstrated on this record. We cannot determine that this error was harmless.

       {¶ 16} West is entitled to a de novo sentencing.          For purposes of guidance on

remand, we note that one of the changes to the felony sentencing laws concerns the purposes
                                                                                            9


of felony sentencing, as stated in R.C. 2929.11(A). The two primary purposes of felony

sentencing remain “to protect the public from future crime by the offender and others and to

punish the offender * * * .” However, these goals are to be effected “using the minimum

sanctions that the court determines accomplish those purposes without imposing an

unnecessary burden on state or local government resources.” Id. “This mandate to utilize

the minimum sanctions the court determines necessary is a new provision, added by H.B. 86.”

 State v. Snyder, 3d Dist. Seneca No. 13-11-37, 2012-Ohio-3069, ¶ 24.

       {¶ 17} Furthermore, we note that R.C. 2929.14(C)(4) now requires that a trial court

engage in a three-step analysis in order to impose consecutive sentences. First, the trial court

must find that “consecutive service is necessary to protect the public from future crime or to

punish the offender.” Id. Next, the trial court must find that “consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the offender

poses to the public.” Id. Finally, the trial court must find that at least one of the conditions

in R.C. 2929.14(C)(4)(a) through (c) apply. Id.

       {¶ 18} West’s assignments of error are sustained.



                                       III. Conclusion

       {¶ 19} West’s assignments of error having been sustained, the sentence imposed is

Reversed, the order finding West to have violated the conditions of his community control and

revoking community control is Affirmed, and this cause is Remanded for a de novo

sentencing.

                                        .............
                                        10




GRADY, P.J., and DONOVAN, J., concur.



Copies mailed to:

Mathias H. Heck
Michele Phipps
Carlo C. McGinnis
Hon. Mary L. Wiseman
