[Cite as State v. Lausin, 2016-Ohio-5184.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellant,           :
                                                       CASE NO. 2016-G-0055
        - vs -                                  :

ROBERT J. LAUSIN, JR.,                          :

                 Defendant-Appellee.            :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 08 C
000069.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellant).

Mark B. Marein, Marein & Bradley, 222 Leader Building, 526 Superior Avenue,
Cleveland, OH 44114 (For Defendant-Appellee).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, the state of Ohio, appeals from two judgments of the Geauga

County Court of Common Pleas: the January 12, 2016 judgment vacating appellee’s,

Robert J. Lausin, Jr., original November 17, 2008 hybrid sentence which combined

mandatory and non-mandatory terms of imprisonment for aggravated vehicular

homicide and aggravated vehicular assault on the grounds that it was illegal and void;
and the February 3, 2016 judgment resentencing Lausin to a new sentence of

concurrent, mandatory terms of imprisonment totaling six years.           For the reasons

stated, we affirm.

       {¶2}   On June 2, 2008, Lausin was indicted by the Geauga County Grand Jury

on five counts: count one, aggravated vehicular homicide, a felony of the second

degree, in violation of R.C. 2903.06(A)(1)(a); count two, aggravated vehicular assault, a

felony of the third degree, in violation of R.C. 2903.08(A)(1)(a); counts three and four,

driving while under the influence of alcohol, misdemeanors of the first degree, in

violation of R.C. 4511.19(A)(1)(a) and (f); and count five, failure to stop at a stop sign, a

minor misdemeanor, in violation of R.C. 4511.43(A).           Lausin was represented by

counsel and pleaded not guilty to all charges.

       {¶3}   Thereafter, on September 29, 2008, Lausin withdrew his former not guilty

plea and pleaded guilty to counts one through three as charged in the indictment. The

trial court accepted his guilty plea and dismissed counts four and five. On November

17, 2008, the court sentenced Lausin to the following: six years in prison on count one,

aggravated vehicular homicide, specifying that three of those years were mandatory;

three years in prison on count two, aggravated vehicular assault, specifying that one of

those years was mandatory; and six months on count three, driving while under the

influence of alcohol. Counts one and two were imposed consecutively. Count three

was ordered to be served concurrently with counts one and two. The court also notified

Lausin regarding post-release control. No appeal was taken at that time.




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         {¶4}   From 2010 to 2013, Lausin filed three motions for judicial release pursuant

to R.C. 2929.20. All of his motions were denied by the trial court.

         {¶5}   On November 4, 2015, Lausin filed a “Motion to Withdraw Guilty Pleas or,

Alternatively, to Vacate Illegal Sentence.” Lausin alleged he did not enter his pleas

knowingly, voluntarily, or intelligently. Lausin further alleged that his 2008 sentence was

illegal due to the trial court’s attempted combination of mandatory and non-mandatory

portions of the sentence, i.e., a hybrid sentence, contrary to Ohio law under State v.

Ware, 141 Ohio St.3d 160, 2014-Ohio-5201.1 The state filed an opposition contending

Lausin’s motion was untimely, that he failed to demonstrate a manifest injustice, and

that the Ware decision is inapplicable. A hearing was held on December 22, 2015. On

January 12, 2016, the trial court overruled Lausin’s motion to withdraw his guilty pleas

but vacated his sentence on the grounds that it was illegal and void.

         {¶6}   A resentencing hearing was held on January 22, 2016. On February 3,

2016, the trial court sentenced Lausin to a mandatory prison term of six years on count

one, a mandatory prison term of three years on count two, and six months on count

three, to be served concurrently.2 The court notified Lausin regarding post-release

control. Lausin received jail time credit for time already served.3

         {¶7}   The state filed a timely appeal and asserts the following assignment of

error:



1. Ware originated from this court’s decision in State v. Ware, 11th Dist. Portage No. 2013-P-0011, 2013-
Ohio-5833.

2. The six-month jail term on count three, driving while under the influence of alcohol, is not at issue in
this appeal.

3. As Lausin’s total resentencing consisted of six years and he had already served in excess of seven
years, he was released from prison.


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       {¶8}    “The trial court erred in finding that the sentence in this case was illegal by

incorrectly determining that the Ohio Supreme Court’s ruling in State v. Ware, 141 Ohio

St.3d 160, 2014-Ohio-5201, rendered the sentence imposed in appellee Lausin’s case

illegal or void.”

       {¶9}    In its sole assignment of error, the state argues the trial court erred in

finding that Lausin’s 2008 hybrid sentence was illegal and void based upon the Ohio

Supreme Court’s decision in Ware. The state also contends that Ware does not apply

retroactively to Lausin’s case.

       {¶10} “R.C. 2953.08(G) and the clear and convincing standard should be applied

to determine whether a felony sentence is contrary to law.” State v. Ernest, 11th Dist.

Lake No. 2014-L-108, 2015-Ohio-2983, ¶60.

       {¶11} At issue in this appeal are Lausin’s sentences on count one, aggravated

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

and count two, aggravated vehicular assault, a felony of the third degree, in violation of

R.C. 2903.08(A)(1)(a). As stated, in its November 17, 2008 judgment of conviction, the

trial court indicated:

       {¶12} “1.      For   Aggravated    Vehicular   Homicide,     in   violation   of   R.C.

2903.06(A)(1)(a), a felony of the second degree as charged in count one of the

indictment:

       {¶13} “a) A prison term of six (6) years in a state penal institution with three (3)

years being mandatory. * * *

       {¶14} “* * *




                                              4
        {¶15} “2. For Aggravated Vehicular Assault, in violation of R.C. 2903.08(A)(1)(a),

a felony of the third degree as charged in count two of the indictment:

        {¶16} “a) A prison term of three (3) years in a state penal institution with one (1)

year being mandatory. * * *”

        {¶17} Thus, following Lausin’s guilty plea, the trial court imposed a hybrid

sentence consisting of         consecutive mandatory and non-mandatory terms of

imprisonment on counts one and two in its original 2008 entry. Again, in 2015, Lausin

filed his motion to withdraw and/or vacate. Following a hearing, on January 12, 2016,

the trial court overruled Lausin’s motion to withdraw his guilty pleas but vacated his

sentence on the grounds that it was illegal and void pursuant to the Ohio Supreme

Court’s decision in Ware. Following a resentencing hearing, on February 3, 2016, the

court sentenced Lausin to a mandatory prison term of six years on count one, and a

mandatory prison term of three years on count two, to be served concurrently. As

Lausin had already served in excess of seven years, he was released from prison.

        {¶18} We are called upon to determine whether Lausin’s original hybrid

sentence was void pursuant to Ware and whether Ware applies retroactively to Lausin’s

case.

        {¶19} On November 26, 2014, the Ohio Supreme Court decided Ware. In that

case, the appellant pleaded guilty to two counts of trafficking in crack cocaine in

violation of R.C. 2925.03(A)(2).     Ware, 2014-Ohio-5201, at ¶2.         One count was a

second-degree felony and the other count was a fourth-degree felony. Id. Regarding

the appellant’s second-degree felony, the Court stated:




                                             5
       {¶20} “No sentencing statute allows a court to divide a singular ‘mandatory

prison term’ into a hybrid of mandatory and discretionary sub-terms.                      R.C.

2925.03(C)(4)(e) unambiguously requires a unitary ‘prison term’ that is ‘mandatory,’ and

R.C. 2929.13(F)(5) instructs that a court ‘shall not reduce’ that term through judicial

release. To override these legislative commands would require judicial improvisation in

a legal system in which ‘(c)rimes are statutory, as are the penalties therefor, and the

only sentence which a trial court may impose is that provided for by statute.’ Colegrove

v. Burns, 175 Ohio St. 437, 438 * * * (1964).” (Parallel citation omitted.) Id. at ¶17.

       {¶21} Like Ware, the case at bar also involves a second-degree felony. Again,

Lausin pleaded guilty to aggravated vehicular homicide, a felony of the second degree,

in violation of R.C. 2903.06(A)(1)(a). That statute provides:

       {¶22} “(A) No person, while operating or participating in the operation of a motor

vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause the

death of another or the unlawful termination of another’s pregnancy in any of the

following ways:

       {¶23} “(1)

       {¶24} “(a) As the proximate result of committing a violation of division (A) of

section 4511.19 of the Revised Code or of a substantially equivalent municipal

ordinance;

       {¶25} “* * *

       {¶26} “(B)




                                             6
       {¶27} “(1) Whoever violates division (A)(1) or (2) of this section is guilty of

aggravated vehicular homicide and shall be punished as provided in divisions (B)(2) and

(3) of this section.

       {¶28} “(2)

       {¶29} “(a) Except as otherwise provided in division (B)(2)(b) or (c) of this

section, 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.” (Emphasis added.)

       {¶30} In addition, the case at bar also involves a third-degree felony. Again,

Lausin pleaded guilty to aggravated vehicular assault, a felony of the third degree, in

violation of R.C. 2903.08(A)(1)(a). That statute provides:

       {¶31} “(A) No person, while operating or participating in the operation of a motor

vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause serious

physical harm to another person or another’s unborn in any of the following ways:

       {¶32} “(1)

       {¶33} “(a) As the proximate result of committing a violation of division (A) of

section 4511.19 of the Revised Code or of a substantially equivalent municipal

ordinance;

       {¶34} “* * *

       {¶35} “(B)

       {¶36} “(1) Whoever violates division (A)(1) of this section is guilty of aggravated

vehicular assault. Except as otherwise provided in this division, aggravated vehicular

assault is a felony of the third degree. * * *




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      {¶37} “* * *

      {¶38} “(D)

      {¶39} “(1) The 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.” (Emphasis

added.)

      {¶40} Accordingly, the trial court erred in its original 2008 sentencing entry by

dividing singular mandatory prison terms into a hybrid of mandatory and discretionary

sub-terms, contrary to statutory provisions. Ware, supra, at ¶17; Colegrove, supra, at

438; R.C. 2903.06(A)(1)(a) and (B)(1) and (2)(a); R.C. 2903.08(A)(1)(a) and (B)(1) and

(D)(1). The court properly corrected its error and re-sentenced Lausin in 2016.

      {¶41} Our Fourth District colleagues were recently faced with a similar matter in

State v. Whitfield, 4th Dist. Scioto No. 14CA3615, 2015-Ohio-4139, decided on

September 28, 2015. In that case, the appellant pleaded guilty to a first-degree felony.

Id. at ¶3, 10. On October 11, 2013, the trial court’s sentence included both mandatory

and non-mandatory components. Id. at ¶9. The Fourth District stated:

      {¶42} “The offense to which appellant pled guilty is a first degree felony. R.C.

2925.03(C)(1)(e) provides that whatever prison term is selected for a first degree felony,

the term is a mandatory sentence. R.C. 2929.14(A)(1) allows a trial court to impose

sentences for a first degree felony in a range from three to eleven years. In the case

sub judice, the trial court imposed a nine year sentence. However, we find nothing in

the statutes (nor does the State cite any case authority) to allow for a ‘hybrid’ sentence

(part mandatory and non-mandatory). The Ohio Supreme Court recently addressed this




                                            8
type of sentence, albeit for a second degree felony rather than a first degree, in State v.

Ware, 141 Ohio St.3d 160, * * *, 2014-Ohio-5201 and concluded:

       {¶43} “* * *

       {¶44} “‘No sentencing statute allows a court to divide a singular “mandatory

prison term” into a hybrid of mandatory and discretionary sub-terms.’” (Emphasis sic.)

Id. at ¶10.

       {¶45} In this case, the state argues that Lausin’s original hybrid sentence was

not void. We disagree.

       {¶46} Although Ware does not explicitly hold that a hybrid sentence is void, the

original sentencing entry in that case, unlike in the instant matter, did not purport to

impose a hybrid sentence.      Rather, the trial court in Ware never suggested that it

wanted to impose a hybrid sentence until years later when it entered a nunc pro tunc

entry to that effect. Ware recognized this as an invalid nunc pro tunc holding:

       {¶47} “The trial court never imposed or purported to impose a hybrid sentence at

the sentencing hearing or in its sentencing entry, and it did not announce a subjective

intent to do so until the 2013 status hearing—years after it sentenced Ware and days

after it entered the final judgment underlying this appeal. This hitherto unknown intent is

inappropriate for a nunc pro tunc entry. * * * Regardless, such a hybrid sentence would

have been legally impossible. No sentencing statute allows a court to divide a singular

‘mandatory prison term’ into a hybrid of mandatory and discretionary sub-terms.” Ware,

supra, at ¶16-17.

       {¶48} Ware’s condemnation of a properly-journalized hybrid sentence as “legally

impossible” essentially reveals that a sentence outside of statutory parameters is void.




                                            9
See Colegrove, supra, at 438. In 1984, the Ohio Supreme Court decided State v.

Beasley, 14 Ohio St.3d 74 (1984).4 In Beasley, the Court held that “[a]ny attempt by a

court to disregard statutory requirements when imposing a sentence renders the

attempted sentence a nullity or void.”         Id. at 75. Thus, as the trial court originally

sentenced Lausin to an illegal hybrid sentence that combined mandatory and non-

mandatory terms of imprisonment, outside of statutory parameters, that sentence is

void.    Id.; see also State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, ¶14 (an

offender’s sentence that does not comply with statutory requirements is contrary to law

and void.)

         {¶49} The state also argues that the law in Ware should not apply retroactively

to Lausin’s case. We disagree with the state’s assertion and logic.

         {¶50} Lausin was originally sentenced in 2008. Beginning in at least 1984, the

Ohio Supreme Court has held that a sentence outside of statutory parameters is void.

See Beasley, supra, at 75.          In 2014, the Ohio Supreme Court in Ware merely

interpreted an existing statute and determined that hybrid sentences have always been

illegal. The state’s prospective-retrospective application assertion is misplaced because

a sentence outside of statutory parameters is a nullity and cannot remain since it never

validly existed nor could it in the future. In addition, we note that in 2015, our sister

court, the Fourth District, applied Ware to an appellant’s 2013 sentence. Whitfield,

supra.




4. Beasley was superseded by statute on other grounds, post-release control, State v. Singleton, 124
Ohio St.3d 173, 2009-Ohio-6434. See State v. Antol, 7th Dist. Mahoning No. 12 MA 211, 2013-Ohio-
5640, ¶18.


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      {¶51} For the forgoing reasons, the state’s sole assignment of error is not well-

taken. The judgments of the Geauga County Court of Common Pleas are affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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