[Cite as State v. Cornell, 2020-Ohio-1305.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 2018-CA-40
                                                    :
 v.                                                 :   Trial Court Case No. 2018-CR-0409
                                                    :
 TRINITY D. CORNELL                                 :   (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                               Rendered on the 3rd day of April, 2020.

                                               ...........

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
     Attorney for Plaintiff-Appellee

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017
      Attorney for Defendant-Appellant

                                              .............



WELBAUM, J.
                                                                                         -2-


        {¶ 1} Defendant-appellant, Trinity D. Cornell, appeals from her conviction in the

Greene County Court of Common Pleas after pleading guilty to one count of aggravated

trafficking in drugs. Cornell’s assigned counsel filed a brief under the authority of Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence

of any non-frivolous issues for appeal. Upon conducting an independent review of the

record, we found at least two issues with arguable merit for appeal; thus, we rejected the

Anders brief and appointed new counsel. Cornell’s newly-appointed appellate counsel

now challenges the two aspects of her sentence raised by this court.             The State

concedes both errors. However, because the sentence imposed was mandatory, the error

was necessarily harmless.      For the reasons outlined below, the judgment of the trial

court is affirmed.



                           Facts and Course of Proceedings

        {¶ 2} In June 2018, Cornell was indicted on one count of aggravated possession

of drugs in violation of R.C. 2925.11(A)/(C)(1)(c) and one count of aggravated trafficking

in drugs in violation of R.C. 2925.03(A)(2)/(C)(1)(d), both second degree felonies

requiring mandatory sentences. The charges were lodged after law enforcement officers

discovered Cornell in possession of a large quantity of methamphetamine during a traffic

stop.

        {¶ 3} As part of a plea agreement, Cornell agreed to plead guilty to the trafficking

charge in exchange for dismissal of the possession charge and forfeiture of the seized

methamphetamine.       Cornell further agreed to financial sanctions not relevant to the

instant appeal. The parties stipulated to a mandatory three-year prison term to be served
                                                                                      -3-


concurrently with the sentence Cornell was serving for aggravated assault in Greene C.P.

No. 2018-CR-40.     Whether Cornell would be approved or disapproved for intensive

program prison (“IPP”) was not discussed at the plea hearing and was not part of the

written plea agreement.

      {¶ 4} Following the requisite Crim.R. 11(C) colloquy, the trial court accepted

Cornell’s guilty plea to the terms outlined above. The matter proceeded to sentencing,

during which the trial court conveyed its intent to impose the parties’ agreed sentence.

The court thereafter sentenced Cornell to a mandatory three-year prison term to be

served concurrently with Cornell’s sentence in Case No. 2018-CR-40. The court further

imposed the agreed-upon financial sanctions.

      {¶ 5} The sentencing entry was issued that same day. Although IPP was not

discussed at the sentencing hearing, the entry reflected that IPP was “denied” for the

reason that it was “agreed in plea.”    Judgment Entry (Sept. 17, 2018), p. 4.       The

sentencing entry also indicated that transfer to transitional control was “not approved.”

Id.



                                  Law and Analysis

      {¶ 6} Cornell proffers two assignments of error for our review. First, she argues

that the trial court erred in disapproving of her placement into IPP without providing an

adequate factual finding articulating its reasons as required by R.C. 2929.19(D). Second,

Cornell argues that the trial court erred in prematurely foreclosing the possibility of

transitional control in derogation of R.C. 2967.26. The State concedes both errors and

proposes that the case be reversed and remanded for resentencing. We disagree.
                                                                                            -4-


       {¶ 7} This court reviewed the relevant statutes governing IPP in State v. Brooks,

2d Dist. Greene No. 2016-CA-17, 2017-Ohio-5825:

       “At the time of sentencing, the court may recommend the offender for

       placement in * * * an intensive program prison under section 5120.032 of

       the Revised Code, disapprove placement of the offender in * * * an intensive

       program prison of that nature, or make no recommendation on placement

       of the offender.” R.C. 2929.14(I). However, “[i]f the court recommends or

       disapproves placement, it shall make a finding that gives its reasons for its

       recommendation or disapproval.” R.C. 2929.19(D).

(Emphasis added.) Brooks at ¶ 4.

       {¶ 8} As stated, the sentencing entry in the case at bar indicated IPP was denied

as “agreed in plea.” The transcript of the plea hearing reveals that IPP was not discussed

during the hearing or included in the written plea agreement. See State v. Berry, 2d Dist.

Greene No. 2013-CA-34, 2014-Ohio-132, ¶ 49. However, the trial court may have been

alluding to Cornell’s ineligibility for IPP as a result of the terms of the plea bargain.

       {¶ 9} Cornell was not eligible for IPP because the trial court imposed a mandatory

sentence. R.C. 5120.032(B)(2)(b). If the court erred in not making the finding, such error

was necessarily harmless where the defendant was subject to a mandatory sentence or

otherwise not eligible for IPP. State v. Waggoner, 2d Dist. Montgomery No. 28453, 2020-

Ohio-212, ¶ 24; State v. Evilsizor, 2d Dist. Champaign No. 2019-CA-14, 2019-Ohio-4090,

¶ 26 State v. Kendall, 2d Dist. Champaign No. 2019-CA-5, 2019-Ohio-2836, ¶ 26; State

v. Felton, 2d Dist. Montgomery No. 27239, 2017-Ohio-761, ¶ 29; State v. Waltz, 2d Dist.

Montgomery No. 23783, 2012-Ohio-4627, ¶ 26.
                                                                                           -5-


       {¶ 10} Cornell’s first assignment of error is overruled.

       {¶ 11} The transitional control issue calls for a similar disposition. R.C.

2967.26(A)(1)(b) provides that “no prisoner who is serving a mandatory prison term is

eligible for the program until after the expiration of the mandatory term.” Of course, here

the entire sentence is mandatory.

       {¶ 12} We have held that the premature disapproval of transitional control in a trial

court’s judgment entry constitutes reversible error, even when the defendant is not eligible

due to a mandatory sentence. State v. Mays, 2d Dist. Montgomery No 24168, 2012-Ohio-

838, ¶ 19, fn.4. See, e.g., Berry at ¶ 41-49; State v. Bates, 2d Dist. Montgomery No.

23707, 2012-Ohio-6039, ¶ 47; State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283,

944 N.E.2d 258, ¶ 44 (2d Dist.). However, we found no error where the trial court stated

in the sentencing entry that the defendant was not eligible for transitional control because

the statement was accurate. State v. Jones, 2d Dist. Montgomery No. 24075, 2011-Ohio-

4013, ¶ 46. The error may be cured on remand by excision of the offending portion from

the judgment entry. Mays at ¶ 19; Berry at ¶ 54, quoting Bates at ¶ 47.

       {¶ 13} However, in light of our more recent decisions finding IPP “error

necessarily harmless” when a defendant was ineligible, we find the same to apply to

errors pertaining to transitional control. Since Cornell is serving a mandatory prison term

rendering her ineligible for transitional control, we find that the error here was necessarily

harmless.

       {¶ 14} Cornell’s second assignment of error is overruled.



                                        Conclusion
                                                                                       -6-


       {¶ 15} Having overruled both of Cornell's assignments of error, the judgment of the

trial court is affirmed.



                                     .............



DONOVAN, J. and HALL, J., concur.



Copies sent to:

Marcy A. Vonderwell
April F. Campbell
Trinity D. Cornell
Hon. Stephen Wolaver
