[Cite as State v. Faircloth, 2011-Ohio-3727.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellant                             : C.A.       CASE    NOS.      24395   and

                                                             24396

v.                                                      :            T.C. NOS. 09CRB14303
                                                                              10CRB05
AUNDRAY FAIRCLOTH                                       :
                                                                    (Criminal appeal from
        Defendant-Appellee                       :             Municipal Court)

                                                        :

                                                ..........

                                                OPINION

                          Rendered on the        29th   day of        July   , 2011.

                                                ..........

ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant City Prosecutor, 335 W. Third
Street, Room 372, Dayton, Ohio 45402
        Attorney for Plaintiff-Appellant

JEFFERY S. REZABEK, Atty. Reg. No. 0069117, 111 West First Street, Suite 519, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee

                                                ..........

FROELICH, J.

        {¶ 1} Plaintiff-appellant State of Ohio appeals from the trial court’s modification of

defendant-appellee Aundray Faircloth’s sentences, placing him on community control. For
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the following reasons, we affirm the judgment of the trial court.

                                                    I

          {¶ 2} On January 12, 2010, Faircloth pled guilty in Case No. 09CRB14303 to

prohibitions concerning companion animals, a misdemeanor of the first degree; on the same

date, in Case No. 10CRB5, he pled guilty to another first degree misdemeanor, domestic

violence. On February 9, 2010, after a presentence investigation, Faircloth was sentenced

on each case. He was placed on community control with a suspended jail term. Faircloth’s

community control was revoked on September 15, 2010, and the suspended jail term

imposed. On November 3, 2010, Faircloth filed a motion for early release. A hearing was

held on November 9, 2010, and the State objected to the modification, arguing that the court

did not have jurisdiction to modify the sentence. On December 14, 2010, the trial court

granted Faircloth’s motion for early release and placed him on community control,

suspending the remainder of his sentence. The same day, the State filed a timely notice of

appeal.

                                                    II

          {¶ 3} The State’s first assignment of error states:

          {¶ 4} “THE TRIAL COURT ERRED BY GRANTING EARLY RELEASE OR

OTHERWISE MODIFYING A VALID, FINAL JUDGMENT OF SENTENCE LEVIED

AGAINST THE APPELLEE WITHOUT JURISDICTION.”

          {¶ 5} At the hearing on the motion for early release and on appeal, the State argued

that there was no statutory authority under which the court could modify Faircloth’s

sentence. A court may not modify a valid sentence that has been executed, unless authorized
                                                                                            3

by statute or rule. State v. Garretson (2000), 140 Ohio App.3d 554, 558, citing State v.

Addison (1987), 40 Ohio App.3d 7. A trial court had the statutory authority to modify a

misdemeanor sentence until R.C. 2929.51 was repealed in January of 2004. State v. Sharp,

Montgomery App. No. 21958, 2008-Ohio-1618, ¶5. See, also, State v. Lee, Montgomery

App. No. 23516, 2010-Ohio-3914. On September 17, 2010, two days after Faircloth’s

revocation and sentencing, an amendment which added a second sentence as R.C.

2929.24(B)(1), became effective.

       {¶ 6} R.C. 2929.24(B)(1) now provides: “A court that sentences an offender to a

jail term under this section may permit the offender to serve the sentence in intermittent

confinement or may authorize a limited release of the offender as provided in division (B) of

section 2929.26 of the Revised Code. The court retains jurisdiction over every offender

sentenced to jail to modify the jail sentence imposed at any time, but the court shall not

reduce any mandatory jail term.”

       {¶ 7} In interpreting a statute, a court must rely on the plain meaning unless there is

ambiguity. MCI Telecommunications Corp. v. Tracy (1992), 84 Ohio App.3d 465, 471.

“Words and phrases shall be read in context and construed according to the rules of grammar

and common usage.” R.C. 1.42.

       {¶ 8} The State argues that this authority – to modify a misdemeanor sentence – did

not exist until September 17, 2010, and the defendant was sentenced (either the original

sentence or the revocation) before that date. Therefore, the State concludes, the trial court

“was without jurisdiction on December 14, 2010 to amend or modify a valid sentence

executed on September 15, 2010. The applicable law on the date of the executed jail term
                                                                                               4

did not provide for amendment or modification.”

        {¶ 9} The statutory language, read plainly, indicates the General Assembly’s intent

to grant sentencing courts jurisdiction to modify, at any time, the sentences of misdemeanor

offenders sentenced to jail. If there is any ambiguity, and we do not believe that there is, the

clause “at any time” could be read to apply to three separate parts of the sentence. It may

read:   “The court retains jurisdiction at any time over every offender sentenced to jail at

any time to modify the jail sentence imposed at any time.”                Under any of these

constructions, the statute is applicable to offenders sentenced after the effective date, as well

as those sentenced before and currently in jail. Under the plain meaning of the statute, the

trial court had jurisdiction to modify a jail sentence on December 14, 2010, which was after

the effective date of R.C. 2929.24(B)(1).

        {¶ 10} The State’s first assignment of error is overruled.

                                                   III

        {¶ 11} The State’s second assignment of error states:

        {¶ 12} “THE      TRIAL      COURT’S        MODIFICATION           OF     APPELLEE’S

EXECUTED SENTENCE WAS VOID.”

        {¶ 13} The State’s second assignment rests upon the first. The trial court

had the authority to act and the judgment is not void.

        {¶ 14} The State’s second assignment of error is overruled.

                                                   VI

        {¶ 15} Having overruled both of the State’s assignments of error, the

judgment of the trial court is Affirmed.

                                         ..........
                                                                         5

HALL, J. and RICE, J., concur.

(Hon. Cynthia Westcott Rice, Eleventh District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Andrew D. Sexton
Jeffery S. Rezabek
Hon. Carl Sims Henderson
