[Cite as State v. Dumas, 2011-Ohio-3402.]

                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                )
                                              )   CASE NO. 10 MA 61
        PLAINTIFF-APPELLEE,                   )
                                              )
        - VS -                                )          OPINION
                                              )
NATHANIAL DUMAS,                              )
                                              )
        DEFENDANT-APPELLANT.                  )


CHARACTER OF PROCEEDINGS:                         Criminal Appeal from
                                                  Youngstown Municipal Court,
                                                  Case No. 09TRD3639.


JUDGMENT:                                         Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                           No Brief Filed.


For Defendant-Appellant:                          Attorney James E. Lanzo
                                                  Attorney Pete C. Klimis
                                                  4126 Youngstown-Poland Road
                                                  Youngstown, OH 44514




JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich


                                                  Dated: June 29, 2011
                                                                                        -2-


DeGenaro, J.
       {¶1}    Defendant-Appellant, Nathaniel Dumas appeals the decision of the
Youngstown Municipal Court sentencing him to 180 days incarceration, consecutive to
any other sentence, for driving under suspension. Dumas argues that because he had
already been sentenced to an aggregate term greater than eighteen months on prior
misdemeanors, the trial court should have imposed a sentence that ran concurrently with
his other misdemeanor sentences. Dumas asserts that pursuant to R.C. 2929.41(B)(1),
an aggregate term of consecutive misdemeanor sentences cannot exceed eighteen
months regardless of whether the sentences are given at different times or by different
courts.
       {¶2}    Dumas's argument is ultimately meritless, as he suffered no prejudice.
While the trial court may not impose a consecutive sentence that results in an aggregate
term for misdemeanor sentences exceeding eighteen months, the sentencing statute is
self-executing and automatically reduces the sentence to the statutory maximum.
Accordingly, the judgment of the trial court is affirmed.
                             Facts and Procedural History
       {¶3}    Dumas was arrested for driving under suspension (R.C. 4510.11(A)); illegal
plates, (R.C. 4549.08(C)); and traffic control device, (R.C. 4511.13(C)). Dumas entered
into a Crim.R. 11 plea agreement to withdraw his previous plea of not guilty and enter a
plea of no contest to the driving under suspension charge. In exchange, the State agreed
to dismiss the charges of illegal plates and traffic control device. The trial court accepted
Dumas's no contest plea and found him guilty of driving under suspension, a first-degree
misdemeanor.
       {¶4}    The trial court sentenced Dumas to 180 days, consecutive to any other
sentence. Noting that Dumas's counsel had previously raised the issue of consecutive
sentences, the trial court stated R.C. 2929.41(B)(2) allows the court to impose
consecutive sentences, explaining, "[i]t says when a consecutive sentence is imposed in
a misdemeanor the term to be served shall end the aggregate of the consecutive terms
imposed, not exceed [sic] 18 months. And I have always interpreted that as each case."
                        Consecutive Misdemeanor Sentences
       {¶5}    Dumas asserts as his sole assignment of error:
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       {¶6}   "The trial court violated R.C. 2929.41 by sentencing Appellant to a term of
incarceration consecutive to Appellant's other misdemeanor sentences."
       {¶7}   An appellate court reviews a misdemeanor sentence for abuse of discretion.
State v. Reynolds, 7th Dist. No. 08-JE-9, 2009-Ohio-935, at ¶9. An abuse of discretion is
more than an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d
169, 404 N.E.2d 144.
       {¶8}   Dumas argues R.C. 2929.41(B)(1) provides the aggregate term of
consecutive misdemeanor sentences cannot exceed eighteen months. Because he was
already serving an aggregate term exceeding eighteen months on his two prior
misdemeanor charges, the trial court should have given Dumas a sentence that ran
concurrently with his two other sentences.
       {¶9}   "A jail term or sentence of imprisonment for a misdemeanor shall be served
consecutively to any other prison term, jail term, or sentence of imprisonment when the
trial court specifies that it is to be served consecutively * * *.
       {¶10} "When consecutive sentences are imposed for misdemeanor under this
division, the term to be served is the aggregate of the consecutive terms imposed, except
that the aggregate term to be served shall not exceed eighteen months."                   R.C.
2929.41(B)(1).
       {¶11} In State v. Miller (Aug. 13, 2001), 12th Dist. No. CA2000-11-225 the court
held that "the language of R.C. 2929.41(B)(1) limits the total term of imprisonment for all
misdemeanors to eighteen months, including cases in which the sentences are imposed
at different times or by different courts." Id. at 1, citing State v. Kesterson (1993), 91 Ohio
App.3d 263, 632 N.E.2d 565; City of Columbus v. Riley (Apr. 12, 1994), 10th Dist. No.
93APC10-1474; State v. Dachenhaus (Apr. 11, 1989), 3d Dist. No. 7-87-13.
       {¶12} The record reveals that Dumas was sentenced to an aggregate term of
greater than eighteen months for misdemeanor charges prior to the trial court's sentence
here. At the change of plea hearing, Dumas stated he was currently serving a sentence
for aggravated menacing, having been sentenced in Courtroom No. 1 on November 12,
2009 with a release date of April 8, 2010. Dumas further stated he had another pending
misdemeanor charge for assault. At the sentencing hearing Dumas stated he had been
                                                                                       -4-


sentenced on the assault charge in Courtroom No. 3, and his new release date was
October 8, 2011.     Thus, Dumas was already serving two consecutive sentences
beginning on November 12, 2009 and ending on October 8, 2011, a sentence of
approximately twenty-three months.
       {¶13} Although the trial court erred in sentencing Dumas to an aggregate term of
greater than eighteen months, the trial court did not commit reversible error. The
sentencing statute is self-executing and automatically reduces the aggregate term for
misdemeanors to eighteen months. Miller at 2. See State v. White (1985), 18 Ohio
St.3d 340, 481 N.E.2d 596. Consequently, it is not necessary for this court to modify the
consecutive sentences or remand the case for resentencing. State v. Barnes, 12th Dist.
No. CA2008-10-090, 2009-Ohio-3684, at ¶11. Therefore, the trial court did not commit
reversible error.
       {¶14} In a similar situation, the Sixth District held that because the sentencing
statute is self-executing, "we need take no action on this error beyond declaring
appellant's rights." State v. Kesterson (1993), 91 Ohio App.3d 263, 264, 632 N.E.2d 565.
It is a matter for the prison authorities to release Dumas once he has served the statutory
limit of incarceration. If they fail to do so, Habeas is "the appropriate action for persons
claiming entitlement to immediate release from prison." State ex rel. Lemmon v. Oho
Adult Parole Authority (1997), 78 Ohio St.3d 186, 677 N.E.2d 347.
       {¶15} In conclusion, the sentencing error committed by the trial court is harmless,
therefore, Dumas's assignment of error is meritless. The sentencing statute is self-
executing, so that the aggregate term on all of Dumas's misdemeanor sentences is
automatically limited to the statutory maximum of eighteen months, and the prison
officials are to release him from the misdemeanor sentences once he serves that
eighteen month term. Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Vukovich, J., concurs.
