[Cite as State v. Martin, 2012-Ohio-1405.]




                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellant   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-81
MYCHAEL J. MARTIN                              :
                                               :
                      Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No.
                                                   2010CR0281


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            March 29, 2012



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

DANIEL J. BENOIT                                   PATRICIA O’DONNELL KITZLER
Assistant Prosecuting Attorney                     Anderson Will O’Donnell & Kitzler
38 South Park St.                                  3 North Main St., Ste. 801
Mansfield, OH 44902                                Mansfield, OH 44902
[Cite as State v. Martin, 2012-Ohio-1405.]


Gwin, P.J.

        {1}     Plaintiff-appellant State of Ohio appeals the August 23, 2011 Judgment

Entry of the Richland County Court of Common Pleas granting Defendant-appellee

Mychael J. Martin’s Motion for Judicial Release.

        {2}     Appellee entered a guilty plea to one count of Possession of Crack

Cocaine, in violation of R.C. 2925.11(A), a felony of the third degree, and was

sentenced to three (3) years’ incarceration.1 Appellee, through counsel, filed for judicial

release on June 7, 2011 under R.C. 2929.20. Appellant responded by motion opposing

judicial release on June 13, 2011, noting that the time imposed under R.C. 2925.11(A)

was, in fact, mandatory. The trial court granted judicial release to appellee after a

hearing was held on August 23, 2011.

        {3}     The state has appealed raising as its sole Assignment of Error:

        {4}     “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE

JUDICIAL       RELEASE,         AS     HE WAS     INELIGIBLE      FOR     JUDICIAL       RELEASE

ACCORDING TO O.R.C. [Sic.] 2929.20 AND O.R.C. [Sic.] 2925.11(A)(4)(c).”

                                                     I.

        {5}     As set forth above, appellee was convicted of Possession of Crack

Cocaine in violation of R.C. 2925.11(A), a felony of the third degree. R.C. 2925.11(A),

provides, in relevant part, “(A) No person shall knowingly obtain, possess, or use a

controlled substance.” Subsection (C)(4) in effect at the time appellee was sentenced

provided,


1
  A Statement of the Facts underlying Appellee’s conviction is unnecessary to our disposition of this
appeal. Any facts needed to clarify the issues addressed in Appellant’s assignment of error shall be
contained therein.
Richland County, Case No. 2011-CA-81                                                         3


             (4) If the drug involved in the violation is cocaine or a compound,

      mixture, preparation, or substance containing cocaine, whoever violates

      division (A) of this section is guilty of possession of cocaine. The penalty

      for the offense shall be determined as follows:

             ***

            (c) If the amount of the drug involved equals or exceeds twenty-five

      grams but is less than one hundred 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.(Emphasis added).

      {6}   Revised Code Section 2929.14(A), provides,

            (A) Except as provided in division (C), (D)(1), (D)(2), (D)(3), (D)(4),

      (D)(5), (D)(6), (D)(7), (D)(8), (G), (I), (J), or (L) of this section or in division

      (D)(6) of section 2919.25 of the Revised Code and except in relation to an

      offense for which a sentence of death or life imprisonment is to be

      imposed, if the court imposing a sentence upon an offender for a felony

      elects or is required to impose a prison term on the offender pursuant to

      this chapter, the court shall impose a definite prison term that shall be one

      of the following:

      ***

            (3) For a felony of the third degree, the prison term shall be one, two,

      three, four, or five years.
Richland County, Case No. 2011-CA-81                                                                4


       {7}    The state maintains, since the prison term is mandatory, and the trial court

sentenced appellee to a prison term of three years, the sentencing court has no

discretion to modify the period of mandatory imprisonment by granting judicial release,

and appellee must serve the stated period of three years. We disagree.

       {8}    In the case at bar, appellant has not provided this court with transcripts of

the original sentencing hearing and the hearing on appellee’s motion for judicial release.

Absent a complete transcript of these hearings, we are unable to review the facts

underlying the trial court’s grant of judicial release to appellee. App. R. 9 in effect at the

time appellant filed his notice of appeal in this case provided for the record on appeal,

and stated in pertinent part:2

               (A) Composition of the record on appeal. The original papers and

       exhibits thereto filed in the trial court, the transcript of proceedings, if any,

       including exhibits, and a certified copy of the docket and journal entries

       prepared by the clerk of the trial court shall constitute the record on appeal

       in all cases. A videotape recording of the proceedings constitutes the

       transcript of proceedings other than hereinafter provided, and, for

       purposes of filing, need not be transcribed into written form. Proceedings

       recorded by means other than videotape must be transcribed into written

       form. When the written form is certified by the reporter in accordance with

       App. R. 9(B), such written form shall then constitute the transcript of

       proceedings. When the transcript of proceedings is in the videotape

       medium, counsel shall type or print those portions of such transcript


2
  App. R. 9 was amended July 2011 to provide that a transcript is required for the record on appeal; a
videotaped recording of the trial court proceedings is no longer adequate.
Richland County, Case No. 2011-CA-81                                                      5


       necessary for the court to determine the questions presented, certify their

       accuracy, and append such copy of the portions of the transcripts to their

       briefs.

       {9}   Factual assertions appearing in a party's brief, but not in any papers

submitted for consideration to the trial court below, do not constitute part of the official

record on appeal, and an appellate court may not consider these assertions when

deciding the merits of the case. Akro-Plastics v. Drake Industries, 115 Ohio App.3d 221,

226, 685 N.E.2d 246, 249(1996). In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197,

199,400 N.E.2d 384 (1980) the Supreme Court of Ohio held the following:

                 [t]he duty to provide a transcript for appellate review falls upon the

       appellant. This is necessarily so because an appellant bears the burden of

       showing error by reference to matters in the record. See State v. Skaggs

       (1978), 53 Ohio St.2d 162. This principle is recognized in App.R. 9(B),

       which provides, in part, that '***the appellant shall in writing order from the

       reporter a complete transcript or a transcript of such parts of the

       proceedings not already on file as he deems necessary for inclusion in the

       record.***.' When portions of the transcript necessary for resolution of

       assigned errors are omitted from the record, the reviewing court has

       nothing to pass upon and thus, as to those assigned errors, the court has

       no choice but to presume the validity of the lower court's proceedings, and

       affirm." (Footnote omitted.)

       {10} We note that in the case at bar, appellee, his attorney and the trial judge

signed an Admission of Guilt/Judgment Entry, which stated in relevant part, “I
Richland County, Case No. 2011-CA-81                                                  6


understand the MAXIMUM sentence is a basic prison term of 5 years of which 1 is

mandatory. I am not eligible for judicial release during the mandatory imprisonment***.”

This entry was filed July 30, 2010.

      {11} This Court recently addressed the issue raised herein in State v. May, 5th

Dist. No. 2010CA2, 2010-Ohio-4625, holding:

             We recognize that subsequent to the filing of the briefs in this

      matter, this Court decided State v. Hess, Morrow App. No. 2009CA0015,

      2010-Ohio-3695, in which we applied the holding of State v. Thomas,

      Allen App.No. 1-04-88, 2005-Ohio-4616, to conclude the trial court was

      required to impose a mandatory prison term for the entire length of the

      sentence prescribed and not create a ‘hybrid sentence.’ Id. at ¶ 32.

      However, the General Assembly has not specifically disallowed the type of

      partially mandatory sentence crafted by the trial court in the case sub

      judice, and, as R.C. 2929.01(FF) and R.C. 2929.20(C)(2) indicate, a

      ‘stated term’ is not necessarily synonymous with a ‘mandatory term.’ It is

      well-established that the sentencing provisions set forth in the Revised

      Code are to be strictly construed against the state and liberally construed

      in favor of the accused. See, e.g., State v. Fanti, 147 Ohio App.3d 27, 30,

      768 N.E.2d 718, 2001-Ohio-7028; R.C. 2901.04(A).

             Accordingly, we decline to herein adopt our previous rationale in

      Hess. We find the trial court acted within its discretion in imposing a one-

      year “mandatory” term, which comports with R.C. 2903.08(D)(1) and is
Richland County, Case No. 2011-CA-81                                                     7


        within the range of penalties for a third-degree felony, even though the

        “stated term” was ordered to be two years.

Id. at ¶18-19. Accord, State v. Thompson, 5th Dist. No. 10CAA020014, 2010-Ohio-

5449.

        {12} In the case at bar, the trial court’s Admission of Guilt/Judgment Entry, filed

July 30, 2010 indicates that it intended to impose only one year of the stated prison term

as a mandatory sentence. Accordingly, in accordance with May, supra, we find the trial

court did not abuse its discretion in granting appellee’s motion for judicial release.

        {13} Appellant’s Assignment of Error is overruled.

        {14} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur


                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. SHEILA G. FARMER


                                               _________________________________
                                               HON. JOHN W. WISE



WSG:clw 0305
[Cite as State v. Martin, 2012-Ohio-1405.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                            Plaintiff-Appellant   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
MYCHAEL J. MARTIN                                 :
                                                  :
                                                  :
                         Defendant-Appellee       :       CASE NO. 2011-CA-81




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

the Richland County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER


                                                      _________________________________
                                                      HON. JOHN W. WISE
