[Cite as State v. Warren, 2013-Ohio-443.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellant,          :
                                                       CASE NO. 2012-P-0069
        - vs -                                 :

NELLY J. WARREN,                               :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2008 CR
00471.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

Melissa R. V. Roubic, Roubic Law Offices, L.L.C., 218 West Main Street, #150,
Ravenna, OH 44266-2744, and Leonard J. Breiding, II, 4825 Almond Way, Ravenna,
OH 44266 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, the state of Ohio, appeals from the judgment of the Portage

County Court of Common Pleas, granting appellee, Nelly J. Warren, judicial release.

For the reasons that follow, we reverse the judgment of the trial court and remand the

matter.

        {¶2}     On August 1, 2008, appellee was indicted in a seven-count indictment

charging, inter alia, two counts of aggravated vehicular homicide, in violation of R.C.
2903.06(A)(1) and two counts of aggravated vehicular assault, in violation of R.C.

2903.08(A)(1).    Appellee eventually entered a plea of guilty to the one count of

aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1) and (B)(1)(2)(a), a

felony of the second degree, and vehicular assault, in violation of R.C. 2903.08(A)(1)

and (B)(1), a felony of the third degree. The remaining charges were dismissed. The

trial court accepted appellee’s plea and the matter was referred for a presentence

investigation report.

       {¶3}   On January 21, 2009, a sentencing hearing was held at which the trial

court, from the bench sentenced appellee to serve four years for aggravated vehicular

homicide, two of which were ordered mandatory. In its sentencing entry, however, the

trial court provided “[t]he Court finds that prison is mandatory for each offense. IT IS

THEREFORE ORDERED that the Defendant is sentenced to the Ohio Department of

Rehabilitation and Correction, Marysville, Ohio to a mandatory term of imprisonment of

four (4) years to be served for the offense of ‘Aggravated Vehicular Homicide,’ and a

mandatory term of imprisonment of one (1) year to be served for the offense of

‘Aggravated Vehicular Assault’ of which shall run consecutive to one another, or until

such time as she is otherwise legally released.”      No appeal was taken from this

judgment.

       {¶4}   Defense counsel subsequently filed a motion requesting the trial court to

vacate the sentencing order “because the entry [did] not conform with the sentence

imposed in open court.” A resentencing hearing was held on February 27, 2009, at

which appellee and her attorney were present. The trial court resentenced appellee to a

mandatory term of four years in prison for aggravated vehicular homicide and a




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consecutive term of one year in prison for aggravated vehicular assault. No appeal was

taken from this order.1

        {¶5}    On May 15, 2012, appellee’s counsel filed a motion for judicial release

arguing that only two years of appellee’s four-year sentence for aggravated vehicular

homicide were mandatory.             On June 29, 2012, the trial court granted the motion,

ordering appellee to be released on house arrest for 90 days beginning Sunday, July 1,

2012. The state requested a stay of the court’s order, which was denied.

        {¶6}    The state filed a notice of appeal and a motion for a temporary stay. This

court granted the temporary stay, ruling the state “made a prima facie showing of the

need for a stay.” This court later granted an extension of the temporary emergency

stay, “pending a substantive review of the appeal, in order to preserve the status quo.”

        {¶7}    The state assigns the following error for our review:

        {¶8}    “The Portage County Court of Common Pleas erred in finding an inmate

imprisoned on a mandatory five years sentence was eligible for release and in granting

the same inmate judicial release.”

        {¶9}    The state contends that, statutorily, appellee is ineligible for judicial

release because the sentencing order demonstrates she was unequivocally sentenced

to a five-year mandatory term. In response, appellee contends the trial court did not err

because, even though the trial court held a resentencing hearing to correct the original

error, “there is no transcript from that hearing and no evidence that the four year

mandatory term was conveyed * * * in open court.”




1 The record before this court does not include transcripts of either appellee’s original sentencing or her
resentencing.


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       {¶10} R.C. 2929.20 gives a sentencing court the authority to grant an eligible

offender judicial release from prison. R.C. 2929.20(B). An eligible offender is “any

person who, on or after April 7, 2009, is serving a stated prison term that includes one

or more nonmandatory prison terms.” R.C. 2929.20 (A)(1)(a).

       {¶11} R.C. 2903.06(B)(2)(a) reads, in relevant part:             “aggravated vehicular

homicide committed in violation of division (A)(1) of this section is a felony of the second

degree and the court shall impose a mandatory prison term on the offender as

described in division (E) of this section.”        Subsection (E) of that statute states, in

relevant part, that “[t]he court shall impose a mandatory prison term on an offender who

is convicted of or pleads guilty to a violation of division (A)(1) of this section.”

       {¶12} A mandatory prison term, for purposes of this appeal, means “the term in

prison that must be imposed for the offenses or circumstances set forth in divisions

(F)(1) to (8) or (F)(12) to (18) of section 2929.13 * * *[and] any prison term authorized

for the level of offense.” R.C. 2929.13(F)(4) provides that a court shall impose a prison

term and shall not reduce the term under R.C. 2929.20 for “[a] felony violation of section

* * * 2903.06 * * * of the Revised Code if the section requires the imposition of a prison

term.” Finally, R.C. 2929.14(A)(2) authorizes a prison term between two and eight

years for a felony-two violation.

       {¶13} Appellee pleaded guilty to one count of aggravated vehicular homicide, a

felony of the second degree, in violation of R.C. 2903.06(A)(1). Appellee received a

mandatory four-year term of imprisonment for pleading guilty to this crime, a sentence

within the statutory range. Appellee was further sentenced to a one-year mandatory

term of imprisonment for felony-three aggravated vehicular assault. This sentence was




                                               4
ordered to run consecutively to the mandatory four-year term for a mandatory aggregate

sentence of five years.

       {¶14} At the hearing on appellee’s motion for judicial release, the trial court

expressed its belief that appellee was eligible for judicial release under the law. The

court further observed, “I spoke with Judge Kainrad, who was the sentencing Judge at

the time, and it was his understanding and what he wanted to do, was make sure that

the sentencing journal entry was styled in a manner that would allow judicial release if in

fact you did everything that you were required to do while in prison. It was his intention

that you be eligible for judicial release.” Regardless of the sentencing judge’s intentions,

the judgment on sentence is unequivocal: Appellee was ordered to serve a mandatory

five-year aggregate sentence. And, regardless of the trial court’s belief that appellee is

eligible, a plain reading of the relevant statutes demonstrate that her five-year

mandatory sentence renders her ineligible for judicial release.

       {¶15} Appellee asserts the trial court’s judgment should be upheld because

there is no transcript to demonstrate that the trial court imposed a four-year mandatory

term at the sentencing hearing.      Initially, there is nothing to indicate appellee was

precluded from placing a transcript of the resentencing hearing in the record. Appellee

cannot rely on the absence of a transcript as a basis for her argument when it appears

she was capable of obtaining such evidence to provide actual support for her position.

       {¶16} Appellee’s argument is additionally problematic because the absence of a

transcript detailing what the trial court said in open court is not evidence that the trial

court failed to properly enter a four-year mandatory sentence on the aggravated

vehicular homicide count. Appellee’s argument is structurally spurious because it is




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based upon the assumption that a position can be true simply because it cannot be

shown false.     One cannot, however, infer the truth of a proposition without some

evidence to support that conclusion. If there is positive evidence for a conclusion, then

one may have reason for accepting it; a lack of evidence, unto itself, however, is no

evidence. We therefore decline to accept appellee’s argument.

      {¶17} We accordingly hold the trial court erred as a matter of law when it found

appellee eligible for judicial release.   The state’s assignment of error is therefore

sustained.

      {¶18} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is reversed and remanded.



MARY JANE TRAPP, J., concurs,

TIMOTHY P. CANNON, P.J., concurs with Concurring Opinion.

                                  ________________


TIMOTHY P. CANNON, P.J., concurring.

      {¶19} I concur with the opinion and judgment of the majority. I write to address

the argument presented by appellant for the first time at oral argument.            In this

argument, appellant contends the state has a limited right of appeal with regard to

modification of a sentence. That limitation is found in R.C. 2953.08(B)(3):

      {¶20} (B) In addition to any other right to appeal and except as provided

               in division (D) of this section, a prosecuting attorney, * * * may

               appeal as a matter of right a sentence imposed upon a defendant

               who is convicted of or pleads guilty to a felony or, in the



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               circumstances described in division (B)(3) of this section the

               modification of a sentence imposed upon such a defendant, on any

               of the following grounds:

       {¶21} * * *

       {¶22} (3) The sentence is a modification under section 2929.20 of the

               Revised Code of a sentence that was imposed for a felony of the

               first or second degree.

       {¶23} Appellant contends she has served her sentence for the second-degree

felony, and all that remains to be served is her sentence for the third-degree felony.

Therefore, the argument goes, the state may not appeal any modification with regard to

modification of the sentence for the third-degree felony.

       {¶24} While this argument may have some merit, appellee has had no

opportunity to respond, and it is not properly developed in our record. It may be more

properly considered in the event a subsequent motion for judicial release is considered

by the trial court.




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