[Cite as State v. Miller, 2017-Ohio-9056.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 27675
                                                   :
 v.                                                :   Trial Court Case No. 13-CR-1204
                                                   :
 LAURA G. MILLER                                   :   (Criminal Appeal from
                                                   :    Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 14th day of December, 2017.

                                              ...........

MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
      Attorney for Defendant-Appellant

                                             .............
                                                                                          -2-


HALL, P.J.

       {¶ 1} Laura G. Miller appeals from the trial court’s July 18, 2017 termination entry

revoking her intervention in lieu of conviction (ILC) on charges of receiving stolen property

and forgery and its imposition of concurrent twelve-month prison sentences for her

conviction on the two fifth-degree felonies.

       {¶ 2} In her sole assignment of error, Miller contends the trial court erred in

imposing a prison sentence after revoking ILC. She claims the sentence is contrary to law

because R.C. 2929.13(B)(1)(a) mandated the imposition of community control sanctions.

       {¶ 3} For its part, the State concedes the error assigned by Miller. It cogently

explains the error as follows:

              R.C. 2929.13(B)(1)(a) provides that if an offender “pleads guilty to a

       felony of the fourth or fifth degree that is not an offense of violence or that

       is a qualifying assault offense, the court shall sentence the offender to a

       community control sanction of at least one year’s duration” if certain

       conditions are met. (Emphasis added). From the record on appeal, Miller

       appears to meet all of these conditions.

              Miller was indicted on one count of receiving stolen property and one

       count of forgery, both felonies of the fifth degree. (Docket Entry 9) She was

       subsequently granted Intervention in Lieu of Conviction (“ILC”) but violated

       the terms of her ILC on multiple occasions. Her ILC was eventually revoked

       to a conviction and the trial court, believing that there were no other

       available community-based options or programs available that had not

       already been tried, sentenced her to concurrent prison terms of 12 months.
                                                                                          -3-


              However, a prison sentence was not an available option under the

       facts of this case because Miller appears to meet all the conditions under

       R.C. 2929.13(B)(1)(a) that make community control a required sentence,

       and because none of the exceptions under R.C. 2929.1[3](B)(1)(b) that

       would have allowed for a prison sentence were met. Moreover, this Court

       has already held that a trial court has no discretion to sentence an offender

       to prison time following an ILC revocation under circumstances that were

       virtually identical to those here. See State v. Holt, 2d Dist. Montgomery No.

       26031, 2014-Ohio-2204.

(Appellee’s brief at 1-2).

       {¶ 4} Having reviewed the record, we agree with the State’s concession of error.

During the ILC revocation hearing, the trial court asked whether Miller would be willing to

participate in the MonDay program as a condition of community control supervision. (Tr.

at 5-6). Defense counsel responded that there was insufficient “time left on her potential

maximum local incarceration sentence for the Court to place her in the Mon[D]ay

program, so therefore, the issue is kind of moot.” (Id. at 6). When the trial court persisted

and asked its question a second time, defense counsel responded that Miller would not

participate. (Id.). The trial court then reasoned that “the only sentencing option” available

was a prison term, and it imposed the concurrent sentences set forth above. (Id. at 7).

But a prison term was not an option here. Regardless of whether the MonDay program

remained a possibility or whether Miller would agree to it, R.C. 2929.13(B)(1)(a)

mandated community control sanctions. The trial court’s concurrent prison terms are

contrary to law.
                                                                                   -4-


      {¶ 5} For the foregoing reasons, Miller’s assignment of error is sustained. Her

prison sentence is reversed and vacated, and the cause is remanded for resentencing.

The judgment is otherwise affirmed.

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



DONOVAN, J., and FROELICH, J., concur.


Copies mailed to:

Mathias H. Heck
Alice B. Peters
Jeffrey T. Gramza
Hon. Gregory F. Singer
