[Cite as State v. Henson, 2013-Ohio-1047.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Sheila G. Farmer, J.
-vs-
                                                  Case No. 12 CAA 08 0047
RYAN M. HENSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Delaware County Court of
                                              Common Pleas, Case No. 11 CR I 03 0127


JUDGMENT:                                      Reversed and Remanded


DATE OF JUDGMENT ENTRY:                        March 19, 2013


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


CAROL O'BRIEN                                 DENNIS PUSATERI
Delaware County Prosecuting Attorney          Office of the Ohio Public Defender

ERIC PENKAL                                   Assistant State Public Defender
Assistant Prosecuting Attorney                250 East Broad Street - Suite 1400
140 N. Sandusky St., 3rd Floor                Columbus, Ohio 43215
Delaware, Ohio 43015
Delaware County, Case No. 12 CAA 08 0047                                                    2

Hoffman, J.


         {¶1}   Defendant-appellant Ryan Henson appeals his sentence entered by the

Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On September 19, 2011, Appellant entered a plea of guilty to one count of

theft, in violation of R.C. § 2913.02(A)(3), a felony of the fifth degree; one count of theft,

in violation of R.C. § 2913.02(A)(2), a felony of the fourth degree; and two counts of

forgery, in violation of R.C. § 2913.31(A)(3), felonies of the fourth degree.

         {¶3}   On October 31, 2011, the trial court sentenced Appellant to twelve months

on each count. The sentences were imposed to run consecutive, excepting count two

which was to run concurrent, for an aggregate sentence of thirty-six months in prison.

         {¶4}   Appellant appealed that sentence and this Court reversed finding the trial

court was required to impose a sentence of community control pursuant to R.C.

2929.13. State v. Henson, 5th Dist. No. 11CAA110112, 2012-Ohio-2894.

         {¶5}   On July 23, 2012, the trial court conducted a new sentencing hearing. At

the time of the hearing, Appellant had spent a total of 297 days in custody pursuant to

the trial court's original sentence. Via Judgment Entry of July 26, 2012, the trial court

resentenced Appellant to a five year term of community control and imposed a local jail

sentence of 90 days as a condition of the community control. The trial court declined to

give Appellant credit for time served.

         {¶6}   Appellant now appeals the July 26, 2012 sentence, assigning as error:




1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Delaware County, Case No. 12 CAA 08 0047                                                     3


       {¶7}   “I. THE TRIAL COURT ERRED BY IMPOSING A JAIL SENTENCE AS A

CONDITION OF COMMUNITY CONTROL WHEN THE DEFENDANT HAD ALREADY

SERVED TEN MONTHS IN PRISON AS THE RESULT OF AN IMPROPERLY

IMPOSED SENTENCE THAT WAS REVERSED ON APPEAL.

       {¶8}   “II.   THE    TRIAL     COURT       ERRED      BY    FAILING     TO    AWARD

CONFINEMENT CREDIT AGAINST THE JAIL SENTENCE IMPOSED AS A

CONDITION OF COMMUNITY CONTROL WHEN THE DEFENDANT HAD ALREADY

SERVED A PERIOD OF IMPRISONMENT IN EXCESS OF THE MAXIMUM SIX-

MONTH PERIOD OF INCARCERATION PERMITTED TO BE IMPOSED AS A

CONDITION OF COMMUNITY CONTROL PURSUANT TO R.C. 2929.16(A)(2).”

                                            I. & II.

       {¶9}   Both assignments of error raised by Appellant assert common and

interrelated issues; therefore, we will address the arguments together.

       {¶10} As set forth in the Statement of the Case, supra, this Court reversed the

original sentence entered by the trial court, remanding the matter to the trial court for

resentencing and the imposition of a community control sanction. This Court's opinion

in State v. Henson, 5th Dist. No. 11CAA110112, 2012-Ohio-2894, states:

       {¶11} "Upon review, we find that with regard to fourth and fifth degree felonies,

R.C. § 2929.13, effective date September 30, 2011, now provides:

       {¶12} "(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not

an offense of violence, the court shall sentence the offender to a community control

sanction of at least one year's duration if all of the following apply:
Delaware County, Case No. 12 CAA 08 0047                                                   4


       {¶13} "(i) The offender previously has not been convicted of or pleaded guilty to

a felony offense or to an offense of violence that is a misdemeanor and that the offender

committed within two years prior to the offense for which sentence is being imposed.

       {¶14} "(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

       {¶15} "(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department, within the forty-

five-day period specified in that division, provided the court with the names of, contact

information for, and program details of one or more community control sanctions of at

least one year's duration that are available for persons sentenced by the court.

       {¶16} "(b) The court has discretion to impose a prison term upon an offender

who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an

offense of violence if any of the following apply:

       {¶17} "(i) The offender committed the offense while having a firearm on or about

the offender's person or under the offender's control.

       {¶18} "(ii) The offender caused physical harm to another person while

committing the offense.

       {¶19} "(ii) [sic] The offender violated a term of the conditions of bond as set by

the court.

       {¶20} "(iv) The court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, and the department, within the

forty-five-day period specified in that division, did not provide the court with the name of,
Delaware County, Case No. 12 CAA 08 0047                                                  5


contact information for, and program details of any community control sanction of at

least one year's duration that is available for persons sentenced by the court.

       {¶21} "(c) If a court that is sentencing an offender who is convicted of or pleads

guilty to a felony of the fourth or fifth degree that is not an offense of violence believes

that no community control sanctions are available for its use that, if imposed on the

offender, will adequately fulfill the overriding principles and purposes of sentencing, the

court shall contact the department of rehabilitation and correction and ask the

department to provide the court with the names of, contact information for, and program

details of one or more community control sanctions of at least one year's duration that

are available for persons sentenced by the court. Not later than forty-five days after

receipt of a request from a court under this division, the department shall provide the

court with the names of, contact information for, and program details of one or more

community control sanctions of at least one year's duration that are available for

persons sentenced by the court, if any. Upon making a request under this division that

relates to a particular offender, a court shall defer sentencing of that offender until it

receives from the department the names of, contact information for, and program details

of one or more community control sanctions of at least one year's duration that are

available for persons sentenced by the court or for forty-five days, whichever is the

earlier. If the department provides the court with the names of, contact information for,

and program details of one or more community control sanctions of at least one year's

duration that are available for persons sentenced by the court within the forty-five-day

period specified in this division, the court shall impose upon the offender a community

control sanction under division (B)(1)(a) of this section, subject to divisions (B)(1)(b)(i)
Delaware County, Case No. 12 CAA 08 0047                                                     6


and (ii) of this section. If the department does not provide the court with the names of,

contact information for, and program details of one or more community control sanctions

of at least one year's duration that are available for persons sentenced by the court

within the forty-five-day period specified in this division, the court may impose upon the

offender a prison term under division (B)(1)(b)(iii) of this section.

       {¶22} "(d) A sentencing court may impose an additional penalty under division

(B) of section 2929.15 of the Revised Code upon an offender sentenced to a community

control sanction under division (B)(1)(a) of this section if the offender violates the

conditions of the community control sanction, violates a law, or leaves the state without

the permission of the court or the offender's probation officer.

       {¶23} "Upon review, we find that pursuant to the above statute, the trial court

was required to impose a sentence of community control.

       {¶24} "In its brief, the State of Ohio argues that the R.C. 2929.13B)(1)(c) is

unconstitutional because it removes any judicial discretion in sentencing a non-violent,

first-time felony offender to prison.

       {¶25} "However, upon review, we find that the issue of constitutionality was not

raised in the trial court. The failure to raise at the trial level the issue of the

constitutionality of a statute or its application which issue is apparent at the time of trial,

constitutes a waiver of such issue and a deviation from this state's orderly procedure,

and therefore, need not be heard for the first time on appeal. In re N.W., 10th Dist. No.

07–AP590, 2008–Ohio–297, ¶ 37; In re Dailey, 10th Dist. No. 04AP–1346, 2005–Ohio–

2196; In re Andy–Jones, 10th Dist. No. 03AP–1167, 2004–Ohio–3312.
Delaware County, Case No. 12 CAA 08 0047                                                7


       {¶26} "We expressly decline to address Appellee's arguments regarding the

constitutionality of said statute as the trial court has not considered and decided those

issues, and we will not determine them in the first instance on appeal.

       {¶27} "We therefore reverse and remand this matter to the trial court for re-

sentencing and/or consideration of the constitutional issues raised by the State of Ohio

in this appeal."

       {¶28} At the July 23, 2012 resentencing hearing, the trial court stated on the

record,

       {¶29} “The Court: Well, I’ll find that that provision is unconstitutional under the

separation of power [sic], so I don’t have to make that finding under 2929.13(B)(1)(a) or

(B)(1)(b).

       {¶30} “I’ll admit apparently that wasn’t on the record last time.

       {¶31} “* * *

       {¶32} “Keeping those in mind, the Court does have to review the statutory

findings under 2929.13(B)(1)(a), and you don’t have any prior conviction of a felony or

misdemeanors of violence within two years, there’s no higher degree of felony

committed, the Court has found that the provision regarding DRC recommending

Community Control sanctions, the 45-day provision, is unconstitutional and in violation

of separation of powers.

       {¶33} “Under 2929.13(B)(1)(b), none of those factors apply. And, again, the

Court would find that provision regarding seeking input from the DRC as

unconstitutional.
Delaware County, Case No. 12 CAA 08 0047                                                8


       {¶34} “So, if none of the provisions apply, then the Court can consider factors

under 2929.13(B)(2), and that your profession and reputation facilitated this offense and

is likely to influence the future conduct of others.

       {¶35} “Under the sentencing factors under 2929.12(B) to (E) - - and the Court

has to consider those again - - the victim suffered serious economic harm and you had

a position of trust, your reputation facilitated the offense, your relationship with the

victims facilitated the offense.

       {¶36} “On the less serious, no physical harm to persons or property expected or

caused, the more serious factors certainly outweigh those being less serious.

       {¶37} “On the recidivism likely side, again the Court would emphasize that

you’ve shown no genuine remorse.

       {¶38} “On the recidivism not likely side, of course, no prior criminal offenses and

you’ve been law abiding for a number of years. But, the no genuine remorse certainly

outweighs any of the factors indicating recidivism is not likely.

       {¶39} “The factors are there for me to impose a prison term once again. And the

question is, are you amenable at this point in time to Community Control. And the Court

would find that you are - - reluctantly make that finding - - and, therefore, impose five

years of Community Control to be supervised by the Office of Adult Court Services;”

       {¶40} Tr. at 14; 19-21.

       {¶41} The State cites R.C. 2929.16, asserting the trial court could have placed

Appellant on community control and imposed a six month jail term, six months in a

CBCF, or six months in an alternative detention facility, all consecutive for an eighteen
Delaware County, Case No. 12 CAA 08 0047                                                9


month total term.   The State further asserts the ninety day sentence is merely a

condition of the community control sanction imposed.

      {¶42} R.C. 2929.15 provides,

      {¶43} “(A)(1) If in sentencing an offender for a felony the court is not required to

impose a prison term, a mandatory prison term, or a term of life imprisonment upon the

offender, the court may directly impose a sentence that consists of one or more

community control sanctions authorized pursuant to section 2929.16, 2929.17, or

2929.18 of the Revised Code. If the court is sentencing an offender for a fourth degree

felony OVI offense under division (G)(1) of section 2929.13 of the Revised Code, in

addition to the mandatory term of local incarceration imposed under that division and

the mandatory fine required by division (B)(3) of section 2929.18 of the Revised Code,

the court may impose upon the offender a community control sanction or combination of

community control sanctions in accordance with sections 2929.16 and 2929.17 of the

Revised Code. If the court is sentencing an offender for a third or fourth degree felony

OVI offense under division (G)(2) of section 2929.13 of the Revised Code, in addition to

the mandatory prison term or mandatory prison term and additional prison term imposed

under that division, the court also may impose upon the offender a community control

sanction or combination of community control sanctions under section 2929.16 or

2929.17 of the Revised Code, but the offender shall serve all of the prison terms so

imposed prior to serving the community control sanction.

      {¶44} “The duration of all community control sanctions imposed upon an

offender under this division shall not exceed five years. If the offender absconds or

otherwise leaves the jurisdiction of the court in which the offender resides without
Delaware County, Case No. 12 CAA 08 0047                                                 10


obtaining permission from the court or the offender's probation officer to leave the

jurisdiction of the court, or if the offender is confined in any institution for the

commission of any offense while under a community control sanction, the period of the

community control sanction ceases to run until the offender is brought before the court

for its further action. If the court sentences the offender to one or more nonresidential

sanctions under section 2929.17 of the Revised Code, the court shall impose as a

condition of the nonresidential sanctions that, during the period of the sanctions, the

offender must abide by the law and must not leave the state without the permission of

the court or the offender's probation officer. The court may impose any other conditions

of release under a community control sanction that the court considers appropriate,

including, but not limited to, requiring that the offender not ingest or be injected with a

drug of abuse and submit to random drug testing as provided in division (D) of this

section to determine whether the offender ingested or was injected with a drug of abuse

and requiring that the results of the drug test indicate that the offender did not ingest or

was not injected with a drug of abuse."

       {¶45} R.C. 2929.16 provides,

       {¶46} "(A) Except as provided in this division, the court imposing a sentence for

a felony upon an offender who is not required to serve a mandatory prison term may

impose any community residential sanction or combination of community residential

sanctions under this section. The court imposing a sentence for a fourth degree felony

OVI offense under division (G)(1) or (2) of section 2929.13 of the Revised Code or for a

third degree felony OVI offense under division (G)(2) of that section may impose upon

the offender, in addition to the mandatory term of local incarceration or mandatory
Delaware County, Case No. 12 CAA 08 0047                                                11


prison term imposed under the applicable division, a community residential sanction or

combination of community residential sanctions under this section, and the offender

shall serve or satisfy the sanction or combination of sanctions after the offender has

served the mandatory term of local incarceration or mandatory prison term required for

the offense. Community residential sanctions include, but are not limited to, the

following:

       {¶47} "(1) A term of up to six months at a community-based correctional facility

that serves the county;

       {¶48} "(2) Except as otherwise provided in division (A)(3) of this section and

subject to division (D) of this section, a term of up to six months in a jail;

       {¶49} "(3) If the offender is convicted of a fourth degree felony OVI offense and

is sentenced under division (G)(1) of section 2929.13 of the Revised Code, subject to

division (D) of this section, a term of up to one year in a jail less the mandatory term of

local incarceration of sixty or one hundred twenty consecutive days of imprisonment

imposed pursuant to that division;

       {¶50} "(4) A term in a halfway house;

       {¶51} "(5) A term in an alternative residential facility."

       {¶52} In State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, the Ohio

Supreme Court addressed the issue of whether a six month jail sentence authorized by

R.C. 2929.16 came under the general exception rule of concurrent sentences; thus,

allowing the trial court to impose consecutive sentences. The Court held,

       {¶53} "In the instant matter, the trial court failed to inform Barnhouse of the

specific prison term that would be imposed upon him if he violated the conditions of his
Delaware County, Case No. 12 CAA 08 0047                                               12


community control. As a result, the court determined that it was precluded from

imposing consecutive prison sentences under R.C. 2929.14(E). [Footnote omitted.] To

achieve the same end by different means, however, the trial court expressly imposed

consecutive six-month sentences under R.C. 2929.16(A)(2), which authorizes the trial

court to impose as a community control sanction for 'a felony * * * a term of up to six

months in a jail.'

       {¶54} "***

       {¶55} "Second, and most important, the six-month maximum jail sentence

authorized by R.C. 2929.16(A)(2) is not an exception identified in R.C. 2929.41(A) and,

therefore, is subject to the general rule that 'a sentence of imprisonment shall be served

concurrently with any other sentence of imprisonment.' R.C. 2929.41(A). Applying this

rule to the instant case, we conclude that a trial court may not impose consecutive jail

sentences under R.C. 2929.16(A)(2). [Footnote omitted.]      Indeed, we are unwilling to

construe the unambiguous language in R.C. 2929.41(A) to achieve the end that could

have been accomplished by notifying the defendant of the specific prison term to be

imposed upon him if he were to violate the community control sanction. See R.C.

2929.19(B)(5)."

       {¶56} As of the date of the July 23, 2012 resentencing, Appellant had spent a

total of 297 days in custody on a sentence later determined by this Court to be contrary

to law. On remand, the trial court chose to sentence Appellant to a term of community

control (despite finding the provision in R.C. 2929.13 regarding DRC recommendations

of community control sanctions unconstitutional), while also imposing a 90 day jail term

as a condition of the community control pursuant to R.C. 2929.16.          Following the
Delaware County, Case No. 12 CAA 08 0047                                            13

rationale of Barnhouse, supra, we find Appellant should have been credited with the

time he served in prison against his six-month jail term imposed as part of his

community control sanctions.

       {¶57} The judgment of the Delaware County Court of Common Pleas is

reversed, and the matter remanded to the trial court for further proceedings consistent

with the law and this opinion.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur                          s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER
Delaware County, Case No. 12 CAA 08 0047                                          14


            IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
RYAN M. HENSON                            :
                                          :
       Defendant-Appellant                :         Case No. 12 CAA 08 0047


       For the reason stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is reversed, and the matter remanded to the

trial court for further proceedings consistent with the law and our Opinion. Costs to

Appellee.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
