[Cite as State v. Bentley, 2017-Ohio-8943.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                   :        OPINION

                   Plaintiff-Appellee,           :
                                                          CASE NO. 2017-A-0017
          - vs -                                 :

BRIDGETTE LYNN BENTLEY,                          :

                   Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 00738.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Myron P. Watson, 614 West Superior Avenue, Suite 1144, Cleveland, OH 44113 (For
Defendant-Appellant).



THOMAS R. WRIGHT, J.



          {¶1}     Appellant, Bridgette Lynn Bentley, pleaded guilty to grand theft and was

sentenced to 15 months in prison to run concurrent with her sentence in another case.

She argues the trial court should have imposed a community control sanction. We

affirm.
      {¶2}    Bentley was indicted and charged with grand theft by the Ashtabula

County Grand Jury, case number 2015-CR-738, and pleaded guilty in May of 2016.

She was sentenced to 15 months in prison to run concurrent with her sentence in case

number 2015-CR-742, involving breaking and entering, a fourth degree felony. This

appeal is from her grand theft sentence and does not encompass her conviction and

sentence for breaking and entering.

      {¶3}    On the same date she pleaded guilty to grand theft, she also pleaded

guilty to breaking and entering.      Bentley’s plea hearing and sentencing transcripts

address both cases since she entered guilty pleas in each case at the same hearing,

and the trial court imposed separate sentences at one sentencing hearing.

      {¶4}    She raises one assigned error:

      {¶5}    “The trial court erred and abused its discretion when it did not impose a

community control sentence when the defendant was convicted of low-level non-violent

offenses,    and   the   court   made   no   findings   under   Revised   Code   of   Ohio

2929.13(B)(1)(c).”

      {¶6}    We do not review criminal sentencing issues for an abuse of discretion,

but instead pursuant to R.C. 2953.08(G)(2):

      {¶7}    “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

      {¶8}    “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court's standard for




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review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

         {¶9}   “(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

         {¶10} “(b) That the sentence is otherwise contrary to law.”

         {¶11} Bentley challenges her sentence based on the court’s failure to impose

community control sanctions instead of prison pursuant to R.C. 2929.13(B)(1)(a), which

requires the imposition of community control in lieu of prison for nonviolent offenders if

four factors are satisfied. Although appellant’s assigned error asserts the trial court

erred in failing to consider (B)(1)(c), the substance of her brief quotes and applies

subsection (B)(1)(a), not (B)(1)(c). Thus, we analyze under R.C. 2929.13(B)(1)(a):

         {¶12} “(a) Except as provided in division (B)(1)(b) of this section, if an offender is

convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense

of violence or that is a qualifying assault offense, the court shall sentence the offender

to a community control sanction of at least one year’s duration if all of the following

apply:

         {¶13} “(i) The offender previously has not been convicted of or pleaded guilty to

a felony offense.

         {¶14} “(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.




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       {¶15} “(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department, within the forty-

five-day period specified in that division, provided the court with the names of, contact

information for, and program details of one or more community control sanctions of at

least one year’s duration that are available for persons sentenced by the court.

       {¶16} “(iv) The offender previously has not been convicted of or pleaded guilty to

a misdemeanor offense of violence that the offender committed within two years prior to

the offense for which sentence is being imposed.” (Emphasis added.)

       {¶17} Bentley argues the court was required to impose a community control

sanction because she had not previously pleaded guilty or been convicted of a felony,

and she satisfied the other R.C. 2929.13(B)(1)(a) factors. We disagree.

       {¶18} As stated, Bentley was convicted in two cases to separate felony offenses

of the fifth and fourth degrees. She pleaded guilty to breaking and entering, a fifth-

degree felony, on the same day and at the same hearing she entered her guilty plea in

this case to a fourth-degree felony.

       {¶19} This court has previously considered and rejected comparable arguments

upon applying the plain language of the statute because R.C. 2929.13(B)(1)(a) only

applies upon a court’s sentencing an offender for a single fourth- or fifth-degree felony,

not multiple ones. State v. Parrado, 11th Dist. Trumbull No. 2015-T-0069, 2016-Ohio-

1313 ¶23; State v. Jones, 11th Dist. Ashtabula No. 2016-A-0017, 2017-Ohio-251, ¶55.

R.C. 2929.13(B)(1)(a) is inapplicable upon sentencing an offender for multiple fourth- or

fifth-degree felony offenses. Id. “If the legislature intended the presumption pertaining

to community control to apply to situations in which an offender was convicted of or




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pleaded guilty to multiple felonies of the fourth or fifth degree, it could have pluralized

these terms [in the statute]. It did not do so.” Id.

       {¶20} Here, Bentley pleaded guilty to a separate, fourth-degree felony offense

on the same date she entered her guilty plea in this case. Thus, as in Parrado and

Jones, R.C. 2929.13(B)(1)(a) does not apply because she was pleading guilty to more

than one felony. Id.

       {¶21} Bentley’s sole assigned error lacks merit, and the trial court’s decision is

affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.




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