[Cite as State v. Larsson, 2012-Ohio-3689.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97718


                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLANT

                                              vs.

                                   TYLER P. LARSSON
                                                    DEFENDANT-APPELLEE



                                   JUDGMENT:
                             REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-556050

        BEFORE: Sweeney, P.J., Rocco, J., and Keough, J.

        RELEASED AND JOURNALIZED:                   August 16, 2012
ATTORNEYS FOR APPELLANT

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: T. Alan Regas, Esq.
       Kristen L. Sobieski, Esq.
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Robert L. Tobik, Esq.
Chief Public Defender
By: John T. Martin, Esq.
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:

       {¶1} Appellant, the state of Ohio (“the State”), appeals the court’s sentencing

defendant-appellee Tyler P. Larsson (“defendant”) to time served in jail for his fifth degree

felony conviction.    After reviewing the facts of the case and pertinent law, we reverse

and remand for resentencing.

       {¶2} On December 6, 2011, defendant pled guilty to one count of vandalism in

violation of R.C. 2909.05(B)(2), a fifth degree felony.     The court sentenced defendant to

36 days in jail with credit for time served.

       {¶3} The state appeals and raises one assignment of error for our review.

       I. The trial court erred by imposing a sentence of 36 days in jail, and
       crediting the appellee for 36 days served for the offense of vandalism, a fifth
       degree felony, when Ohio law requires the imposition of either 1) a prison
       sentence, 2) a potential $2,500 fine, or 3) up to three years of post release
       control.

       {¶4} Defendant was sentenced after H.B. 86 took effect in September 2011.          As

part of H.B. 86, R.C. 2929.13(B)(1)(a) states as follows:

       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, the court shall sentence the offender to a
       community control sanction of at least one year’s duration if all of the
       following apply:

       (i) The offender previously has not been convicted of or pleaded guilty to a
       felony offense or to an offense of violence that is a misdemeanor and that the
       offender committed within two years prior to the offense for which sentence
       is being imposed.

       (ii) The most serious charge against the offender at the time of sentencing
       is a felony of the fourth or fifth degree.
       (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.

(Emphasis added.)

       {¶5}    In State v. Cox, 8th Dist. No. 97924, 2012-Ohio-3158, this court reversed the

trial court’s sentencing a defendant to a two-day jail term with credit for two days served

under the post-H.B. 86 statute.      The Cox court held that the new statutory scheme

“specifies that a sanction of community control must be imposed for at least one year.”

Id. at ¶ 4.   We follow the precedent set forth in Cox, because we find that case to be

directly on point with the case at hand.             All of the factors listed in R.C.

2929.13(B)(1)(a)(i)-(iii) apply to defendant; therefore, the court was required to sentence

him to a minimum of one year of community control sanctions.

       {¶6}    Furthermore, we find this court’s en banc decision in State v. Nash, 8th Dist.

No. 96575, 2012-Ohio-3246, which affirmed the trial court’s sentence of three days in jail

with credit for time served for a fifth degree felony, to be inapplicable to the instant case,

because Nash was sentenced prior to September 2011.

       {¶7}    Defendant’s sentence of 36 days in jail with credit for time served was

improper as a community control sanction under R.C. 2929.13(B)(1)(a).        The state’s sole

assignment of error is sustained.

       {¶8}    Judgment reversed and remanded for resentencing.
          It is, therefore, considered that said appellant recover of said appellee its costs

herein.

          It is ordered that a special mandate be sent to said 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.




JAMES J. SWEENEY, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
