[Cite as State v. Albright, 2016-Ohio-5406.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103467




                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                JONATHON ALBRIGHT
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-593473-D

        BEFORE: Laster Mays, J., Keough, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: August 18, 2016
                              -i-




ATTORNEY FOR APPELLANT

P. Andrew Baker
Buckeye Law Office
11510 Buckeye Road
Cleveland, Ohio 44104


ATTORNEYS FOR APPELLEE

Timothy McGinty
Cuyahoga County Prosecutor

By: Kerry A. Sowul
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Jonathon Albright (“Albright”), appeals his sentence

stating that the trial court erred in its calculation of his eligibility for judicial release, and

asks this court to remand for resentencing so the trial court may consider whether a

different sentence is appropriate.    After review of the record, we affirm.

       {¶2} Albright pled guilty to one count of robbery, a third-degree felony, in

violation of R.C. 2911.02(A)(3), along with a one-year firearm specification.           The trial

court sentenced Albright to 18 months for the robbery and one year for the firearm

specification, for an aggregate of 30-months imprisonment. Albright was also advised

of the three-year postrelease control following his prison sentence.

       {¶3} At sentencing, the trial court advised Albright that after he served his

mandatory sentence of one year for the firearm specification, he would be eligible to

apply for judicial release after serving at least 30 days of the 18-month sentence for the

robbery. The court continued by stating that it would seriously consider the judicial

release application with certain expectations.      (Tr. 96 - 97.)    As a result, Albright has

filed this timely appeal, assigning one error for our review:

       I.        The trial court erred in its calculation of defendant-appellant’s
       eligibility for judicial release and this case must be remanded for
       resentencing.
I.     Law and Analysis

       {¶4} The Ohio Supreme Court, in State v. Marcum, Slip Opinion No.

2016-Ohio-1002, addresses the standard of review that appellate courts must apply when

reviewing felony sentences. Applying the plain language of R.C. 2953.08(G)(2), the

Ohio Supreme Court determined that an appellate court need not apply the test set out in

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Id. at ¶ 1.             An

appellate court may vacate or modify a felony sentence on appeal only if it determines by

clear and convincing evidence that the record does not support the trial court’s finding

under relevant statutes or that the sentence is otherwise contrary to law. Id.       The court

held that appellate courts may not apply the abuse of discretion standard in

sentencing-term challenges. Id. at ¶ 10.

       {¶5} Clear and convincing evidence is that measure or degree of proof that is more

than a mere “preponderance of the evidence,” but not to the extent of such certainty as is

required “beyond a reasonable doubt” in criminal cases, and which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.   Marcum at ¶ 22.

       {¶6} Albright argues that the trial court erred in its calculation of his eligibility for

judicial release.   Under R.C. 2929.20(C), an offender can file a motion for judicial

release after a specific period of time governed by the statute.      It states that an eligible
offender may file a motion for judicial release with the sentencing court within the

following applicable periods:

      (1) If the aggregated nonmandatory prison term or terms is less than two
      years, the eligible offender may file the motion not earlier than thirty days
      after the offender is delivered to a state correctional institution or, if the
      prison term includes a mandatory prison term or terms, not earlier than
      thirty days after the expiration of all mandatory prison terms.

      (2) If the aggregated nonmandatory prison term or terms is at least two
      years but less than five years, the eligible offender may file the motion not
      earlier than one hundred eighty days after the offender is delivered to a state
      correctional institution or, if the prison term includes a mandatory prison
      term or terms, not earlier than one hundred eighty days after the expiration
      of all mandatory prison terms.

R.C. 2929.20(C)(1) - (2).

      {¶7} Albright argues that the trial court erred in stating to him that he would be

eligible for judicial release after serving the mandatory one-year prison term for the

firearm specification and at least 30 days on the robbery conviction.     He contends that

the trial court relied on R.C. 2929.20(C)(1) instead of R.C. 2929.20(C)(2), arguing that

because he was sentenced to more than two       years of prison, the trial court incorrectly

quoted from the wrong statute.

      {¶8} Albright is incorrect in his assertion. R.C. 2929.20(C)(1) states “if the

aggregated nonmandatory prison term or terms is less than two years * * *.” Albright

was sentenced to one-year mandatory imprisonment and 18-months nonmandatory

imprisonment.   Our review of the record clearly and convincingly reveals that the trial

court correctly relied on R.C. 2929.20(C)(1) because the sentence for the robbery

conviction was 18-months nonmandatory imprisonment, which is less than two years.
Albright’s assignment of error is overruled, and the judgment of the trial court is

affirmed.

       {¶9} Judgment is affirmed.

       It is ordered that the appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_______________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
