[Cite as State v. Little, 2012-Ohio-3779.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                              :       Hon. Julie A. Edwards, J.
-vs-                                          :
                                              :       Case Nos. 11CA109
DENNIS LITTLE, JR.                            :                 11CA120
                                              :
         Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 2010CR513



JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     August 20, 2012




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN C. NIEFT                                         R. JOSHUA BROWN
38 South Park Street                                  32 Lutz Avenue
Mansfield, OH 44902                                   Lexington, OH 44904
RIchland County, Case Nos. 11CA109 and 11CA120                                                 2

Farmer, J.

       {¶1}      On August 6, 2010, the Richland County Grand Jury indicted appellant,

Dennis Little, Jr., on one count of possession of drugs in violation of R.C. 2925.11 and

one count of trafficking in drugs in violation of R.C. 2925.03. On October 19, 2011 (filed

October 21, 2011), appellant pled guilty to the possession count and the trafficking

count was dismissed.        By sentencing entry filed October 21, 2011, the trial court

sentenced appellant to a two year mandatory term in prison.

       {¶2}      Appellant filed a notice of appeal on November 17, 2011 (Case No.

11CA109).

       {¶3}      On November 28, 2011, appellant filed a motion for jail time credit. By

judgment entry filed December 7, 2011, the trial court denied appellant's motion.

       {¶4}      Appellant filed a second notice of appeal on December 20, 2011 (Case

No. 11CA120).

       {¶5}      On January 9, 2012, this court consolidated the two cases.

       {¶6}      This matter is now before this court for consideration. Assignment of error

is as follows:

                                               I

       {¶7}      "THE TRIAL COURT ERRED IN IMPOSING A MANDATORY TWO YEAR

PRISON SENTENCE AS APPELLANT DID NOT FULLY UNDERSTAND THE

CONSEQUENCES OF HIS PLEA."

       {¶8}      This court consolidated the two appeals on January 9, 2012. The first

appeal is on appellant's sentence, sentencing entry filed October 21, 2011. The second
RIchland County, Case Nos. 11CA109 and 11CA120                                              3


appeal is on the denial of jail time credit, judgment entry filed December 7, 2011.

Appellant has argued only one assignment of error.

                                            I

      {¶9}   Appellant claims his plea was not voluntary as he did not understand the

consequences of his plea. Appellant claims the transcript of the plea adequately

demonstrates that he was under the impression that he would be sentenced under H.B.

No. 86. We disagree.

      {¶10} Appellant pled guilty to possessing drugs (cocaine), a felony in the third

degree, in violation of R.C. 2925.11. Appellant was originally charged with possession

of drugs and trafficking in drugs. Appellant pled guilty to the possession count and the

trafficking count was dismissed. The state correctly points out that appellant's plea was

a negotiated plea, as is evidenced by the following provision included in the plea of

guilty form signed by appellant on October 19, 2011:

      {¶11} "I understand the nature of these charges and the possible defenses I

might have. I am satisfied with my attorney's advice and competence. I am not now

under the influence of drugs or alcohol.        No threats have been made to me.      No

promises have been made to me as part of this plea agreement except: Agreed upon

recommendation; 2 years prison; mandatory fine and license susp.; forfeit $2,000 Prison

sentence mandatory."

      {¶12} The transcript of the plea also indicates this was an agreed to sentence

and appellant understood the agreement and the sentence. T. at 18-19, 22. Pursuant

to the plea agreement, the trial court imposed a mandatory two year sentence. T. at 23.

Under R.C. 2953.08(D)(1), "[a] sentence imposed upon a defendant is not subject to
RIchland County, Case Nos. 11CA109 and 11CA120                                              4


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."

       {¶13} Appellant appears to argue his sentence was not authorized by law as he

was under the impression that he would be sentenced under H.B. No. 86 and therefore

his two year sentence would not be mandatory.         H.B. No. 86 became effective on

September 30, 2011. Pursuant to the November 3, 2010 Response to Request for Bill

of Particulars, appellant was found with over fifty grams of cocaine on March 18, 2010.

He was subsequently charged with violating R.C. 2925.11(C)(4)(c) which stated the

following pre-H.B. No. 86:

       {¶14} "(c) If the amount of the drug involved equals or exceeds twenty-five

grams but is less than one hundred twenty grams of cocaine that is not crack cocaine or

equals or exceeds five grams but is less than ten grams of crack cocaine, possession of

cocaine is a felony of the third degree, and the court shall impose as a mandatory

prison term one of the prison terms prescribed for a felony of the third degree."

       {¶15} Prior to H.B. No. 86, felonies of the third degree were punishable by "one,

two, three, four, or five years." R.C. 2929.14(A)(3). Clearly appellant's mandatory two

year sentence was proper under pre-H.B. No. 86.

       {¶16} H.B. No. 86 eliminated the difference between crack and powder cocaine.

Appellant argues he should have the benefit of the amendment regarding possession of

cocaine and third degree felonies as set forth in now R.C. 2925.11(C)(4)(c):

       {¶17} "(c) If the amount of the drug involved equals or exceeds ten grams but is

less than twenty grams of cocaine, possession of cocaine is a felony of the third degree,
RIchland County, Case Nos. 11CA109 and 11CA120                                                5


and, except as otherwise provided in this division, there is a presumption for a prison

term for the offense. If possession of cocaine is a felony of the third degree under this

division and if the offender two or more times previously has been convicted of or

pleaded guilty to a felony drug abuse offense, the court shall impose as a mandatory

prison term one of the prison terms prescribed for a felony of the third degree."

       {¶18} Appellant has not previously been convicted of or pleaded guilty to a

felony drug abuse offense; therefore, he argues the trial court erred in imposing a

mandatory term.     However, under H.B. No. 86, appellant's possession of cocaine

conviction would be a first degree felony or a second degree felony at best:

       {¶19} "(d) If the amount of the drug involved equals or exceeds twenty grams but

is less than twenty-seven grams of cocaine, possession of cocaine is a felony of the

second degree, and the court shall impose as a mandatory prison term one of the

prison terms prescribed for a felony of the second degree.

       {¶20} "(e) If the amount of the drug involved equals or exceeds twenty-seven

grams but is less than one hundred grams of cocaine, possession of cocaine is a felony

of the first degree, and the court shall impose as a mandatory prison term one of the

prison terms prescribed for a felony of the first degree." R.C. 2925.11(C)(4)(d) and (e).

       {¶21} First degree felonies are punishable by "three, four, five, six, seven, eight,

nine, ten, or eleven years."      R.C. 2929.14(A)(1).      Second degree felonies are

punishable by "two, three, four, five, six, seven, or eight years." R.C. 2929.14(A)(2).

Clearly appellant's mandatory two year sentence was proper under post-H.B. No. 86 for

a second degree felony and was too low for a first degree felony.
RIchland County, Case Nos. 11CA109 and 11CA120                                       6


      {¶22} Upon review, we find appellant's plea was voluntary and was made

subject to a negotiated agreement, and the mandatory two year agreed upon sentence

was within the statutory scheme pre- and post-H.B. No. 86 and was not unlawful.

      {¶23} The sole assignment of error is denied.

      {¶24} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Edwards, J. concur.




                                           s/ Sheila G. Farmer_______________



                                           s/ William B. Hoffman_____________



                                           s/ Julie A. Edwards_______________

                                                         JUDGES

SGF/sg 720
[Cite as State v. Little, 2012-Ohio-3779.]


                   IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :
                                                :
         Plaintiff-Appellee                     :
                                                :
-vs-                                            :        JUDGMENT ENTRY
                                                :
DENNIS LITTLE, JR.                              :
                                                :
         Defendant-Appellant                    :        CASE NO. 11CA109
                                                :




         For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                                s/ Sheila G. Farmer_______________



                                                s/ William B. Hoffman_____________



                                                s/ Julie A. Edwards_______________

                                                             JUDGES
               IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
DENNIS LITTLE, JR.                       :
                                         :
       Defendant-Appellant               :         CASE NO. 11CA120
                                         :




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                         s/ Sheila G. Farmer_______________



                                         s/ William B. Hoffman_____________



                                         s/ Julie A. Edwards_______________

                                                       JUDGES
