         [Cite as State v. Livingston, 2014-Ohio-1637.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :      APPEAL NO. C-130160
                                                          TRIAL NO. B-1205662
        Plaintiff-Appellee,                        :
                                                             O P I N I O N.
  vs.                                              :

NATHANIEL LIVINGSTON,                              :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: April 18, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,


Bruce K. Hust, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}     Ohio law provides that prison authorities may award eligible offenders

one or five days of credit toward the satisfaction of their prison terms for participating in

approved prison programs. R.C. 2967.193. In this appeal, we are confronted with the

question of whether a trial court may, as part of its sentence, limit a defendant’s

eligibility to earn such credit. We conclude that it may not.

                                              I.

       {¶2}     Nathaniel Livingston entered agreed pleas of guilty to two counts of

aggravated robbery with a gun specification. Consistent with the plea agreement, the

trial court sentenced him to one year of incarceration for the gun specification, followed

by concurrent three-year terms for the aggravated robberies, for a total sentence of four

years. The trial court stated on the record that Mr. Livingston would be ineligible for

earned credit and other sentence-reduction programs in prison, and inserted the

following language into its judgment entry: “Pursuant to a plea agreement between the

parties, the defendant herein is not eligible for risk reduction, intensive prison

programs, earned days of credit, transitional control, judicial release, or any other early

release program and is to serve this sentence in its entirety.” It is undisputed that Mr.

Livingston agreed to these terms as a condition of his four-year sentence.

       {¶3}     On appeal, Mr. Livingston contends that the trial court lacked authority

to limit his eligibility for earned days of credit under R.C. 2967.193.

                                             II.

       {¶4}     Appellate review of a sentence imposed pursuant to a plea agreement is

governed by R.C. 2953.08(D)(1).        That section provides that where the trial court

imposes a sentence jointly recommended by the defendant and the state, that sentence




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                       OHIO FIRST DISTRICT COURT OF APPEALS



is subject to review only if it is not authorized by law. See State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 14-16. Therefore, we may only review the

earned-credit portion of Mr. Livingston’s sentence if it is unauthorized by law.

       {¶5}     The earned-credit program is governed by R.C. 2967.193, which

provides that

       a person confined in a state correctional institution may provisionally

       earn one day or five days of credit * * * toward satisfaction of the person’s

       stated prison term for each completed month during which the person

       productively participates in an education program, vocational training,

       employment in prison industries, treatment for substance abuse, or any

       other    constructive   program    developed    by   the   department       [of

       rehabilitation and correction].

R.C. 2967.193(A)(1).

       {¶6}     “The General Assembly is vested with the power to define, classify,

and prescribe punishment for offenses committed in Ohio.”                          State v.

Taylor, __Ohio St.3d__, 2014-Ohio-460, __N.E.2d__, ¶ 12.                “Judges have no

inherent power to create sentences. * * * ‘[T]he only sentence which a trial court may

impose is that provided for by statute.’ ” Id. at ¶ 18, citing State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, and Colegrove v. Burns, 175 Ohio St.

437, 438, 195 N.E.2d 811 (1964). Thus, where a court imposes a sentence that no

statute instructs or permits it to impose, that sentence is not authorized by law. See,

e.g., State v. Vaughn, 7th Dist. Carroll No. 683, 2002-Ohio-5046, ¶ 23-25 (because

the sentencing statutes “contain no provision authorizing a trial court to include

solitary confinement as part of its sentence,” such a sentence is “not authorized by

the legislature”).



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}     Under R.C. 2967.193, the department of rehabilitation and correction is

charged with determining the amount of credit earned and awarding that credit to the

prisoner. Likewise, the statute authorizes the department to deny the prisoner the right

to earn credit or withdraw credits previously earned if it determines the prisoner has

violated prison rules. While R.C. 2967.193 identifies which offenders are eligible for

earned credit based on their crimes of incarceration, it does not provide the judiciary a

role in determining that eligibility.

       {¶8}     When the legislature has meant for the judiciary to have the discretion to

deny eligibility for prison programs, it has made its intent clear.         Indeed, when

establishing other prison programs and forms of early release, the General Assembly has

expressly conferred authority upon the judiciary to allow or disallow an offender’s

participation. For instance, courts have been granted authority to declare a prisoner

ineligible for placement in an “intensive program prison.” R.C. 5120.032(B)(1)(a) (“If

the sentencing court disapproves placement of the prisoner in an intensive program

prison, the department shall not place the prisoner in any intensive program

prison”). Similarly, trial courts have the power to reduce an offender’s nonmandatory

prison term through “judicial release.” R.C. 2929.20. And the legislature has authorized

courts to “disapprove” the transfer of an inmate to a “transitional control” program.

R.C. 2967.26.

       {¶9}     In contrast, there is nothing in R.C. 2967.193 or elsewhere in the law that

authorizes a court to limit an offender’s ability to earn days of credit. Because the trial

court lacked authority to impose the sentence it imposed, we sustain Mr. Livingston’s

sole assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                           III.

       {¶10}    The portion of the sentence prohibiting Mr. Livingston from earning

days of credit in prison was not authorized by law, so we vacate that portion of his

sentence and remand this matter to the trial court for the limited purpose of correcting

the judgment entry. We affirm the trial court’s judgment in all other respects.

               Judgment affirmed in part, sentence vacated in part, and cause remanded.


C UNNINGHAM , P.J., and F ISCHER , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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