[Cite as State v. Shipman, 2012-Ohio-2377.]




                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :     JUDGES:
                                              :     Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                   :     Hon. Sheila G. Farmer, J.
                                              :     Hon. William B. Hoffman, J.
-vs-                                          :
                                              :
JUSTIN MICHAEL SHIPMAN                        :     Case No. 2011CA00251
                                              :
        Defendant-Appellee                    :     OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2011CR0756


JUDGMENT:                                           Dismissed



DATE OF JUDGMENT:                                   May 29, 2012



APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

JOHN D. FERRERO                                     BARRY T. WAKSER
Prosecuting Attorney                                200 Tuscarawas Street West
                                                    Suite 200
By: RONALD MARK CALDWELL                            Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza South
Suite 510
Canton, OH 44702
Farmer, J.

       {¶1}   On June 28, 2011, the Stark County Grand Jury indicted appellee, Justin

Michael Shipman, on one count of possession of cocaine, a felony in the third degree,

and one count of possession of marijuana, a minor misdemeanor, in violation of R.C.

2925.11.

       {¶2}   A jury trial on the cocaine count commenced on August 15, 2011 as

appellant had pled guilty to the marijuana count. The jury found appellant guilty. By

judgment entry filed August 31, 2011, the trial court sentenced appellant to three years

in prison.

       {¶3}   On September 26, 2011, appellee filed a motion for judicial release. By

judgment entry filed October 25, 2011, the trial court granted the motion and placed

appellee on community control for three years.

       {¶4}   Appellant, the state of Ohio, filed an appeal and this matter is now before

this court for consideration. Assignment of error is as follows:

                                              I

       {¶5}   "THE    TRIAL    COURT       LACKS     AUTHORITY        TO    IGNORE      THE

IMPLEMENTATION PROVISIONS OF HOUSE BILL 86 AND APPLY ITS PROVISIONS

TO DEFENDANTS IN APPLICABLE DRUG CASES WHO WERE SENTENCED PRIOR

TO THE EFFECTIVE DATE OF HOUSE BILL 86, AND THEREFORE ERRED IN

GRANTING JUDICIAL RELEASE TO A DEFENDANT WHO WAS SERVING A

MANDATORY PRISON TERM."

                                              I

       {¶6}   Appellant claims the trial court erred in granting appellee judicial release.
       {¶7}    First, we must address appellee's motion to dismiss the appeal which he

filed on December 27, 2011. In his motion, appellee argues because appellant did not

seek leave to appeal pursuant to App.R. 5(C), appellant did not properly perfect its

appeal. We note although appellant has a right to appeal a sentence that is contrary to

law under R.C. 2953.08(B)(2), subsection (B)(3) permits appeals to a sentence

modification under R.C. 2729.20 (judicial release) for felonies of first and second

degrees only.     This case involved a sentence modification on a felony of the third

degree.

       {¶8}    In State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, paragraph

one of the syllabus, the Supreme Court of Ohio held, "R.C. 2953.08(B)(2) does not

authorize a prosecuting attorney to appeal the modification of a sentence granting

judicial release for a felony of the third, fourth, or fifth degree."

       {¶9}    In this case, appellee was granted judicial release on a third degree

felony, possession of crack cocaine in violation of R.C. 2925.11(A). At the time of

sentencing on August 31, 2011, appellee was sentenced to a three year prison term

pursuant to R.C. 2925.11(C)(4)(c) which stated the following:

       {¶10} "(c) If the amount of the drug involved equals or exceeds ten grams but is

less than twenty grams of cocaine, possession of cocaine is a felony of the third degree,

and, except as otherwise provided in this division, there is a presumption for a prison

term for the offense. If possession of cocaine is a felony of the third degree under this

division and if the offender two or more times previously has been convicted of or

pleaded guilty to a felony drug abuse offense, the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of the third degree.

(Emphasis added.)

      {¶11} Admittedly, appellee's three year sentence did not qualify him for judicial

release.

      {¶12} On September 30, 2011, H.B. No. 86 took effect which changed Ohio's

felony sentencing laws. Pertinent to this appeal are the amendments made to R.C.

2925.11 changing appellee's offense to a felony in the fourth degree with mandatory

community control under certain circumstances [R.C. 2929.13(B)]. After the effective

date of H.B. No. 86, the trial court granted appellee judicial release on October 25,

2011. Appellant filed an appeal on November 3, 2011 challenging the trial court's order.

      {¶13} Upon review, we find this fact pattern to be analogous to the case of State

v. Sparks, 178 Ohio App.3d, 272, 2008-Ohio-4664. In Sparks, our brethren from the

Fourth District applied the Cunningham decision and granted a motion to dismiss the

appeal. Based upon Cunningham, we hereby grant appellee's motion to dismiss. The

assignment of error is moot.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.

                                            / Sheila G. Farmer_______________


                                            s/ Patricia A. Delaney_____________


                                            s/ William B. Hoffman_____________
                                                JUDGES

SGF/sg 509
                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellant              :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
JUSTIN MICHAEL SHIPMAN                  :
                                        :
       Defendant-Appellee               :         CASE NO. 2011CA00251




       For the reasons stated in our accompanying Memorandum-Opinion, this appeal

is dismissed. Costs to appellant.




                                        / Sheila G. Farmer_______________


                                        s/ Patricia A. Delaney_____________


                                        s/ William B. Hoffman_____________
                                                  JUDGES
