[Cite as State v. Hamm, 2016-Ohio-2938.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 103230




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLANT

                                              vs.

                                     JOSHUA HAMM
                                                    DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-14-590162-E

        BEFORE: Keough, P.J., McCormack, J., and Stewart, J.

        RELEASED AND JOURNALIZED: May 12, 2016
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

      {¶1} Plaintiff-appellant, the state of Ohio, appeals from the sentence imposed

after defendant-appellee, Joshua Hamm (“Hamm”), pleaded guilty to attempted criminal

gang activity, intimidation, and attempted felonious assault. We affirm.

                                     I. Background

      {¶2} In November 2014, Hamm and 13 codefendants were indicted. Hamm

subsequently pleaded guilty to amended Count 1, attempted criminal gang activity in

violation of R.C. 2923.02 and 2923.42(A); Count 53, intimidation in violation of R.C.

2921.03(A); and Count 60, attempted felonious assault in violation of R.C. 2923.01 and

2903.11(A)(1). All the offenses were felonies of the third degree; Counts 53 and 60 each

carried an accompanying criminal gang activity specification, as set forth in R.C.

2941.142(A). In exchange for his plea, the other charges against Hamm were nolled.

      {¶3} The trial court subsequently sentenced Hamm to 2 years incarceration on

the criminal gang activity specifications on Counts 53 and 60, concurrent, and to 60

months of community control sanctions on Counts 1, 53, and 60, to be served at the

conclusion of the prison term. The state now appeals from this sentence.

                                      II. Analysis

      {¶4} The state argues that the trial court’s sentence on Counts 53 and 60 is

contrary to law because the court imposed community control sanctions on the underlying

felony and a prison term on the accompanying criminal gang activity specification. The

state contends that the sentence on each count is an inappropriate “split sentence” because

the court imposed both a prison term and community control for the same offense.
      {¶5} We will not reverse the sentence imposed unless we clearly and

convincingly find that it is contrary to law. See R.C. 2953.08(G)(2).

      {¶6} “‘Current felony sentencing statutes, contained primarily in R.C. 2929.11 to

2929.19, require trial courts to impose either a prison term or community control

sanctions on each count.’” State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2098, 35

N.E.3d 512, ¶ 13, quoting State v. Berry, 3d Dist. Defiance No. 4-12-04,

2012-Ohio-4660, ¶ 21. “[T]he sentencing statute does not allow a trial court to impose

both a prison sentence and community control for the same offense.” State v. Jacobs,

189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d 789, ¶ 5 (8th Dist.). Rather, “the

trial court must ‘decide which sentence is appropriate — prison or community control

sanctions — and impose whichever option is deemed to be necessary.’” Id., quoting

State v. Vlad, 153 Ohio App.3d 74, 2003-Ohio-2930, 790 N.E.2d 1246, ¶ 16 (7th Dist.).

      {¶7} A specification is not an element of the underlying offense nor a separate

offense in itself. Instead, a specification is a sentencing provision that enhances the

penalty for the associated predicate offense. State v. Moore, 8th Dist. Cuyahoga No.

101658, 2015-Ohio-1026, ¶ 18 (E.T. Gallagher, J., concurring in judgment only); State v.

Noor, 10th Dist. Franklin No. 13AP-165, 2014-Ohio-3397, ¶ 51, fn. 2.

      {¶8} The state contends that because a specification is completely dependent on

the existence of the underlying offense, the offense plus the specification constitute “the

entire count” and, therefore, by imposing community control sanctions on the underlying

offense and a prison term on the specification, the trial court violated the prohibition

against split sentences. We disagree.
      {¶9} In Moore, supra, the defendant argued that the three-year mandatory prison

term on the firearm specification and the community control sanctions on the underlying

offense was contrary to law because it constituted an improper “split sentence.”

However, as explained in the concurring opinion in Moore, imposing community control

on an underlying offense and prison on an accompanying specification does not implicate

the “split sentence” prohibition precisely because a specification is not part of the

underlying offense but merely a sentencing enhancement to that offense. Thus, the trial

court’s sentence in Moore was not contrary to law. Id. at ¶ 18.

      {¶10} The state argues that this case is different from Moore, however, because

Moore involved a firearm specification, and this case involves the criminal gang activity

specification under R.C. 2929.14(G), which the state contends requires the trial court to

impose a prison sentence on the underlying offense. R.C. 2929.14(G) states:

      If an offender who is convicted of or pleads guilty to a felony that is an
      offense of violence also is convicted of or pleads guilty to a specification of
      the type described in section 2941.142 of the Revised Code that charges the
      offender with having committed the felony while participating in a criminal
      gang, the court shall impose upon the offender an additional prison term of
      one, two, or three years.

(Emphasis added.)

      {¶11} The state contends that because R.C. 2929.14(G) states that the trial court is

required to impose an “additional” prison term on the specification, the court must

necessarily impose a prison sentence on the underlying offense. The state argues that by

including the word “additional,” the legislature intended that the offender be given a

prison sentence on the underlying offense, as well as on the criminal gang specification;
in other words, that the prison sentence on the specification is in addition to the prison

sentence on the underlying offense.

       {¶12} We disagree that the word “additional” in R.C. 2929.14(G) necessarily

requires a prison sentence on the underlying offense. The legislative history and notes to

R.C. 2929.14(G) offer no indication that the legislature intended to require a prison

sentence on the underlying offense. Moreover, it is well established that “sections of the

Revised Code defining offenses or penalties shall be strictly construed against the state,

and liberally in favor of the accused.” R.C. 2901.04(A). Thus, we read “additional” in

context as requiring a prison sentence in addition to whatever sentence is imposed on the

predicate offense, whether it be prison or community control sanctions.

       {¶13} The state also directs us to this court’s decision in State v. Webb, 8th Dist.

Cuyahoga No. 73974, 1998 Ohio App. LEXIS 5460 (Nov. 19, 1998), as support for its

argument that the trial court may not impose community control sanctions on the

predicate offense while imposing prison on the specification. In Webb, the defendant

pleaded guilty to involuntary manslaughter, a third-degree felony with a possible sentence

of one to five years in prison. Id. at *2. He also pleaded guilty to a one-year firearm

specification.   The trial court sentenced the defendant to one year in prison on the

involuntary manslaughter count and one year on the firearm specification. The court

then suspended the sentence on the involuntary manslaughter offense and ordered that the

defendant be returned to jail after completing the one-year sentence on the firearm

specification, at which time he would be placed on five years of community control

sanctions and serve two consecutive six-month sentences in jail.          Id. at *3.   The

defendant appealed his sentence.
       {¶14} On appeal, this court held that by suspending the one-year sentence on the

involuntary manslaughter count and ordering the defendant returned to the Cuyahoga

County jail to serve two six-month terms after completing the one-year term on the

firearm specification, the trial court had improperly ordered the defendant to serve his

term on the involuntary manslaughter count in a local institution, rather than an institution

under the control of the department of rehabilitation and correction pursuant to former

R.C. 2929.221 (now R.C. 2929.34). This court reversed the sentence and remanded for

resentencing, finding that the trial court was required to sentence the defendant to one to

five years on the involuntary manslaughter count consecutive to the sentence on the

firearm specification.     This court noted that after the sentence on the firearm

specification was completed, the trial court could entertain a motion for judicial release

and then sentence the defendant to community control sanctions, including local county

jail time if appropriate. Id. at *7.

       {¶15} Webb is not on point for several reasons.         First, unlike this case, the

underlying felony (involuntary manslaughter) was a nonprobationable offense subject to a

sentence of one to five years in prison. Id. at *2. Hence, the trial court was required to

impose a prison sentence on the underlying felony. In this case, the underlying offenses

of intimidation and attempted felonious assault are third-degree felony offenses without

any presumption of prison.

       {¶16} Furthermore, as noted in the concurring opinion in Webb, the majority

opinion did not adequately address the central issue of the case: whether community

control sanctions may be imposed for an underlying felony when a mandatory prison

sentence is required for an accompanying firearm specification. The concurring opinion
did address this issue, however, and found that where a trial court is not required to

impose a prison sentence on the underlying felony, even where prison is mandatory for

the accompanying specification, a trial court may impose community control sanctions on

the underlying felony. Id. at *12.

      {¶17} Accordingly, because the trial court in this case could properly impose

community control sanctions on the underlying offenses while imposing prison on the

accompanying criminal gang activity specifications, the trial court’s sentence was not

contrary to law. The state’s assignment of error is overruled.

      {¶18} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.   Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR
