[Cite as State v. Highley, 2019-Ohio-5177.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                :      JUDGES:
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                  :      Hon. Craig R. Baldwin, J.
                                              :      Hon. Earle E. Wise, J.
-vs-                                          :
                                              :
JOSHUA HIGHLEY,                               :      Case No. 2019 CA 00086
                                              :
        Defendant - Appellant                 :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     19-CR-00085




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    December 9, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ERIC M. DEPUE                                        STEPHEN T. WOLFE
Assistant Licking County Prosecutor                  Wolfe Law Group, LLC
20 N. Second Street, 4th Floor                       1350 W. 5th Ave., Suite 330
Newark, Ohio 43055                                   Columbus, Ohio 43212
Licking County, Case No. 2019 CA 00086                                                2


Baldwin, J.

       {¶1}   Defendant-appellant Joshua Highley appeals his sentence from the Licking

County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 31, 2019, the Licking County Grand Jury indicted appellant on

one count of aggravated possession of drugs (methamphetamines) in violation of R.C.

2925.11(A)(C)(1)(a), a felony of the fifth degree. At his arraignment on February 26, 2019,

appellant entered a plea of not guilty to the charge.

       {¶3}   Thereafter, on April 29, 2019, appellant filed a Motion for Intervention in Lieu

of Conviction (hereinafter “ILC”). Appellant, on May 30, 2019, entered a plea of guilty to

the charge and, as memorialized in a Judgment Entry filed on May 30, 2019, his guilty

plea and the trial court’s finding of guilty were held in abeyance and appellant was placed

into an ILC status for a period of two years. The trial court, in its Judgment Entry, noted

that appellant had been informed that if he violated the terms of his ILC, his guilty plea

and the trial court’s finding of guilty would be reinstated and appellant would be sentenced

to a term of one year in prison.

       {¶4}   A Motion to Revoke appellant’s ILC was filed on July 30, 2019 alleging that

appellant had violated his conditions of supervision. Following a hearing held on August

23, 2019, the trial court reinstated appellant’s guilty pleas and found appellant guilty. The

trial court then revoked appellant’s community control and, pursuant to a Judgment Entry

filed on August 23, 2019, sentenced appellant to twelve (12) months in jail.

       {¶5}   Appellant now appeals, raising the following assignment of error on appeal:
Licking County, Case No. 2019 CA 00086                                                    3


        {¶6}   “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A TWELVE-MONTH

LOCAL JAIL SENTENCE.”

                                               I

        {¶7}   Appellant, in his sole assignment of error, argues that the trial court erred in

imposing a twelve-month local jail sentence on him. We disagree.

        {¶8}   As is stated above, after appellant entered his guilty plea, the trial court held

his guilty plea in abeyance and placed appellant into an ILC status. After appellant

violated the terms of his ILC, the trial court sentenced appellant to twelve (12) months in

jail.

        {¶9}   The relevant statute, R.C. 2951.041, states, in relevant part, as follows:

        (F) If the court grants an offender's request for intervention in lieu of

        conviction and the offender fails to comply with any term or condition

        imposed as part of the intervention plan for the offender, the supervising

        authority for the offender promptly shall advise the court of this failure, and

        the court shall hold a hearing to determine whether the offender failed to

        comply with any term or condition imposed as part of the plan. If the court

        determines that the offender has failed to comply with any of those terms

        and conditions, it may continue the offender on intervention in lieu of

        conviction, continue the offender on intervention in lieu of conviction with

        additional terms, conditions, and sanctions, or enter a finding of guilty and

        impose an appropriate sanction under Chapter 2929. of the Revised Code.

        … (Emphasis added).
Licking County, Case No. 2019 CA 00086                                                 4


       {¶10} R.C. 2929.34(B)(3)(c) states, in relevant part, as follows: ..”[N]o person

sentenced by the court of common pleas of a voluntary county to a prison term for a felony

of the fifth degree shall serve the term in an institution under the control of the department

of rehabilitation and correction. The person shall instead serve the sentence as a term of

confinement in a facility of a type described in division (C) or (D) of this section.” In turn,

division (C) provides as follows:

       A person who is convicted of or pleads guilty to one or more misdemeanors

       and who is sentenced to a jail term or term of imprisonment pursuant to the

       conviction or convictions shall serve that term in a county, multicounty,

       municipal, municipal-county, or multicounty-municipal jail or workhouse; in

       a community alternative sentencing center or district community alternative

       sentencing center when authorized by section 307.932 of the Revised

       Code; or, if the misdemeanor or misdemeanors are not offenses of violence,

       in a minimum security jail.

       {¶11} Pursuant to R.C. 2929.34(B)(3)(a), “[a]s used in divisions (B)(3)(a) to (d) of

this section, “voluntary county” means any county in which the board of county

commissioners of the county and the administrative judge of the general division of the

court of common pleas of the county enter into an agreement of the type described in

division (B)(3)(b) of this section and in which the agreement has not been terminated as

described in that division.”

       {¶12} As noted by the court in State v. Pope, 2nd Dist. Montgomery Nos. 28142

and 28143, 2019 -Ohio- 4100 at paragraph 5:
Licking County, Case No. 2019 CA 00086                                                5


       {¶13} “House Bill 49, codified at R.C. 2929.34, requires that when a defendant is

sentenced to prison from certain counties for certain fifth-degree felonies, the prison term

will not be served in an institution under ODRC's control; instead, the sentence will be

served locally, usually in a county jail or community-based correctional facility.”

       {¶14} Licking County is a voluntary county. As noted by appellee, because R.C.

2929.34 “prohibits individuals who are convicted of fifth degree felonies in voluntary

counties…from serving their periods of confinement in the department of rehabilitation

and correction, the Court appropriately sentenced the Appellant to serve his twelve-month

period of confinement at the Licking County Justice Center.”

       {¶15} While appellant cites to R.C. 2929.16(A)(2) in arguing that a court cannot

impose a jail sentence that is more than six months, such section allows a trial court to

impose up to six (6) months in the county jail for a violation of the terms of community

control residential sanctions. Appellant, in the case sub judice, was not sentenced to

residential community control sanctions and did not violate the terms of the same. Such

section is, therefore, not applicable.

       {¶16} We find that appellant was properly sentenced to twelve months

confinement in the Licking County Justice Center. Appellant’s sole assignment of error is,

therefore overruled.
Licking County, Case No. 2019 CA 00086                                       6


      {¶17} Accordingly, the judgment of the Licking County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.
