[Cite as State v. Henson, 2012-Ohio-2894.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 11 CAA 11 0112
RYAN M. HENSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 11 CR I 03 0127


JUDGMENT:                                     Reversed and Remanded



DATE OF JUDGMENT ENTRY:                        June 26, 2012



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

CAROL O'BRIEN                                 DAVID H. BIRCH
PROSECUTING ATTORNEY                          286 South Liberty Street
ERIC PENKAL                                   Powell, Ohio 43065
ASSISTANT PROSECUTOR
140 North Sandusky Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 11 CAA 11 0112                                                    2

Wise, J.

       {¶1}    Defendant-Appellant Ryan Henson appeals his sentence entered in the

Delaware County Common Pleas Court following a guilty plea on two counts of theft and

two counts of forgery.

       {¶2}    Plaintiff-Appellee is the State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

       {¶3}    Appellant Ryan M. Henson, while working in the commercial banking

business, collected deposits from clients who hoped to secure loans. When the loans

fell through, he did not return the deposits to the clients, instead keeping said deposits

for his own personal use. Appellant also forged letters of intent to entice the deposits

paid to him.

       {¶4}    On March 4, 2011, Appellant was indicted on three counts of forgery

under R.C. §2913.31 and three counts of theft under R.C. §2913.02. The six separate

counts included three distinct victims.

       {¶5}    On September 19, 2011, Appellant entered a plea of guilty on one count of

theft in violation of R.C. §2913.02(A)(3), a felony of the fifth degree, one count of theft in

violation of R.C. §2913.02(A)(2), a felony of the fourth degree and two counts of forgery

in violation of R.C. §2913.31(A)(3), felonies of the fourth degree.

       {¶6}    On October 31, 2011, the trial court sentenced Appellant to twelve months

on each count. The sentences were imposed to run consecutive, except count two

which was to run concurrent, for an aggregate sentence of thirty-six months in prison.
Delaware County, Case No. 11 CAA 11 0112                                               3


      {¶7}   Appellant now appeals, arguing that the trial court erred in its sentencing

discretion and that Appellant was entitled to community control under the recently

enacted changes in R.C. Chapter 2929 under House Bill 86.

                               ASSIGNMENT OF ERROR

      {¶8}   “I. THE COURT ERRED BY SENTENCING THE APPELLANT TO A

PRISON SENTENCE IN CONTRAVENTION OF THE SENTENCING STATUTES.”

                                               I.

      {¶9}   In his sole Assignment of Error, Appellant claims that the trial court erred

in imposing a prison term in this matter. We agree.

      {¶10} More specifically, Appellant claims that under the current version of R.C.

2929.13, the trial court was required to impose a sentence of community control.

      {¶11} Upon review, we find that with regard to fourth and fifth degree felonies,

R.C. §2929.13, effective date September 30, 2011, now provides:

      (B)(1)(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, 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.
Delaware County, Case No. 11 CAA 11 0112                                               4


            (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.

     (b) The court has discretion to impose a prison term upon an offender who

     is convicted of or pleads guilty to a felony of the fourth or fifth degree that

     is not an offense of violence if any of the following apply:

            (i) The offender committed the offense while having a firearm

            on or about the offender's person or under the offender's

            control.

            (ii) The offender caused physical harm to another person

            while committing the offense.

            (iii) The offender violated a term of the conditions of bond as

            set by the court.

            (iv) The court made a request of the department of

            rehabilitation and correction pursuant to division (B)(1)(c) of

            this section, and the department, within the forty-five-day
Delaware County, Case No. 11 CAA 11 0112                                             5


            period specified in that division, did not provide the court with

            the name of, contact information for, and program details of

            any community control sanction of at least one year's

            duration that is available for persons sentenced by the court.

     (c) If a court that is sentencing an offender who is convicted of or pleads

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

     violence believes that no community control sanctions are available for its

     use that, if imposed on the offender, will adequately fulfill the overriding

     principles and purposes of sentencing, the court shall contact the

     department of rehabilitation and correction and ask the department to

     provide 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. Not later

     than forty-five days after receipt of a request from a court under this

     division, the department shall provide 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, if any. Upon making a request under this division

     that relates to a particular offender, a court shall defer sentencing of that

     offender until it receives from the department 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 or for forty-five days, whichever is the earlier.
Delaware County, Case No. 11 CAA 11 0112                                                   6


       If the department provides 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 within the forty-five-day period specified in this division, the court

       shall impose upon the offender a community control sanction under

       division (B)(1)(a) of this section, subject to divisions (B)(1)(b)(i) and (ii) of

       this section. If the department does not provide 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 within the forty-five-day period specified in

       this division, the court may impose upon the offender a prison term under

       division (B)(1)(b)(iii) of this section.

       (d) A sentencing court may impose an additional penalty under division (B)

       of section 2929.15 of the Revised Code upon an offender sentenced to a

       community control sanction under division (B)(1)(a) of this section if the

       offender violates the conditions of the community control sanction, violates

       a law, or leaves the state without the permission of the court or the

       offender's probation officer.

       {¶12} Upon review, we find that pursuant to the above statute, the trial court was

required to impose a sentence of community control.

       {¶13} In its brief, the State of Ohio argues that the R.C. 2929.13B)(1)(c) is

unconstitutional because it removes any judicial discretion in sentencing a non-violent,

first-time felony offender to prison.
Delaware County, Case No. 11 CAA 11 0112                                                     7


       {¶14} However, upon review, we find that the issue of constitutionality was not

raised in the trial court. The failure to raise at the trial level the issue of the

constitutionality of a statute or its application which issue is apparent at the time of trial,

constitutes a waiver of such issue and a deviation from this state's orderly procedure,

and therefore, need not be heard for the first time on appeal. In re N. W., 10th Dist. No.

07–AP590, 2008–Ohio–297, ¶ 37; In re Dailey, 10th Dist. No. 04AP–1346, 2005–Ohio–

2196; In re Andy–Jones, 10th Dist. No. 03AP–1167, 2004–Ohio–3312

       {¶15} We expressly decline to address Appellee’s arguments regarding the

constitutionality of said statute as the trial court has not considered and decided those

issues, and we will not determine them in the first instance on appeal.

       {¶16} We therefore reverse and remand this matter to the trial court for re-

sentencing and/or consideration of the constitutional issues raised by the State of Ohio

in this appeal.
Delaware County, Case No. 11 CAA 11 0112                                        8


       {¶17} For the foregoing reasons, the judgment of the Court of Common Pleas,

Delaware County, Ohio, is reversed and remanded to the trial court for proceedings

consistent with the law and this opinion.


By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



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                                                           JUDGES
JWW/d 0613
Delaware County, Case No. 11 CAA 11 0112                                        9


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
RYAN M. HENSON                              :
                                            :
       Defendant-Appellant                  :         Case No. 11 CAA 11 0112




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to Appellee.




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                                                                 JUDGES
