[Cite as State v. Browning, 2014-Ohio-4857.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                              :

        Plaintiff-Appellee                                 :        C.A. CASE NO.        26174

v.                                                         :        T.C. NO.      13CR3727

PHYLLIS R. BROWNING                                        :            (Criminal appeal from
                                                                        Common Pleas Court)
        Defendant-Appellant                     :

                                                           :

                                               ..........

                                               OPINION

                         Rendered on the            31st       day of          October          , 2014.

                                               ..........

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ADELINA E. HAMILTON, Atty. Reg. No. 0078595, Assistant Public Defender, 117 S.
Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                               ..........




FROELICH, P.J.
                                                                                               2

               {¶ 1} Phyllis Browning appeals from a judgment of the Montgomery

County Court of Common Pleas. On her no contest plea, the trial court found Browning

guilty of aggravated possession of drugs (Methamphetamine), a felony of the fifth degree;

Browning entered her plea after the trial court found that she was ineligible for intervention

in lieu of conviction (“ILC”). The State dismissed a second count, possession of drug

paraphernalia, as part of the plea agreement.        The trial court sentenced Browning to

community control and suspended her driver’s license for six months.

       {¶ 2}    Browning appeals, raising one assignment of error, which challenges the

trial court’s conclusion that she was ineligible for ILC. The State concedes that the trial court

erred in concluding that Browning was ineligible for ILC.

       {¶ 3}    At the time of her indictment in this case, Browning was on probation for a

misdemeanor theft offense. At her plea hearing, the trial court found that her misdemeanor

probation was “an aggravating circumstance which, by law, render[ed] her ineligible for

ILC.” The trial court apparently found that, because of Browning’s misdemeanor probation,

it could not impose community control pursuant to the ILC statute, particularly R.C.

2951.041(B)(1), which relates to whether the trial court “would impose a community control

sanction on the offender under [R.C. 2929.13(B)(2)].”

       {¶ 4}     Subsequent to the trial court’s judgment in Browning’s case, we discussed

this issue in State v. Taylor, 2d Dist. Clark No. 2013-CA-59, 2014-Ohio-2821. Taylor

analyzed R.C. 2951.041 (the ILC statute), R.C. 2929.13(B)(1)(a), (B)(1)(b), and (B)(2)

(sentencing provisions), and the interplay among these statutes.
                                                                                           3

               * * * Prior to March 22, 2013, a portion of the ILC statute, former

       R.C. 2951.041(B)(1), made a defendant ILC eligible if, among other things,

       upon conviction the trial court “would impose sentence under division

       (B)(3)(b) of section 2929.13 of the Revised Code[.]” Under then-existing

       R.C. 2929.13(B)(3)(b), a presumption for community control arose absent an

       aggravating circumstance. In essence, the ILC statute incorporated

       aggravating circumstances that eliminated the presumption for community

       control. And the absence of a presumption for community control rendered a

       defendant ineligible for ILC. See [State v.] Redic, [2d Dist. Montgomery No.

       25176, 2013-Ohio-1070,] at ¶ 13-16.

               Effective March 22, 2013, S.B. 160 amended the ILC statute. The

       S.B. 160 version of R.C. 2951.041(B)(1) makes a defendant ILC eligible if,

       among other things, upon conviction the trial court “would impose a

       community control sanction on the offender under division (B)(2) of section

       2929.13 of the Revised Code[.]” Here the trial court did impose community

       control after overruling Taylor’s ILC motion. The issue, then, is whether it

       did so “under” R.C. 2929.13(B)(2). To resolve this issue, we must examine

       the various parts of R.C. 2929.13(B) more closely.

Taylor at ¶ 5-6.

       {¶ 5}       As discussed in Taylor and as it pertains to Browning’s case, the relevant

portions of R.C. 2929.13(B) read:

               (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an
                                                                                    4

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:

       (i) The offender previously has not been convicted of or

       pleaded guilty to a felony offense.(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.(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.

       (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 or that is a qualifying assault offense if any

of the following apply:        ***
                                                                                         5

               (xi) The offender committed the offense while under a

               community control sanction, while on probation, or while

               released from custody on a bond or personal recognizance.

               (2) If division (B)(1) of this section does not apply, * * * in

       determining whether to impose a prison term as a sanction for a felony of the

       fourth or fifth degree, the sentencing court shall comply with the purposes

       and principles of sentencing under section 2929.11 of the Revised Code and

       with section 2929.12 of the Revised Code.

(Emphasis added) R.C. 2929.13(B)(1)(a), (B)(1)(b), and (B)(2).

       {¶ 6}    Our analysis in Taylor continued, as follows:

               In essence, R.C. 2929.13(B)(1)(a) mandates community control for

       fourth and fifth-degree felony offenses when certain requirements are met. A

       sentencing court has no discretion to impose a prison term when a defendant

       is sentenced under division (B)(1)(a). Under division (B)(1)(b), however, a

       trial court regains discretion to impose a prison term on a defendant who

       otherwise would fit within the scope of division (B)(1)(a) but for the presence

       of one or more additional facts. Finally, division (B)(2) provides that “[i]f

       division (B)(1) * * * does not apply,” a trial court should exercise its

       discretion in deciding whether to impose a prison term by considering the

       purposes and principles of sentencing and the statutory seriousness and

       recidivism factors.

               The issue here is whether division (B)(1) applied in Taylor’s case or
                                                                                           6

       whether he was sentenced to community control under division (B)(2). As set

       forth above, the ILC statute, R.C. 2951.041(B)(1), makes a defendant ILC

       eligible only if upon conviction the trial court “would impose a community

       control sanction on the offender under division (B)(2)[.]”

Taylor at ¶ 7-8.

       {¶ 7}       Finding “an obvious error of omission in R.C. 2929.13(B)(2),” we held that

“the only reasonable interpretation of R.C. 2929.13(B)(2) is that the legislature intended

(B)(2) to apply whenever R.C. 2929.13(B)(1)(a) [mandatory community control] did not.”

In other words, we held that the legislature intended for the opening phrase of R.C.

2929.13(B)(2) to state “[i]f division (B)(1)(a) of this section does not apply, * * *” rather

than “[i]f division (B)(1) * * * does not apply.” Taylor at ¶ 14. We then concluded that,

because R.C. 2929.13(B)(1)(a) did not apply under the facts in Taylor, the trial court had

discretion under R.C. 2929.13(B)(1)(b) to sentence the defendant to prison or community

control.   “In exercising that discretion, the trial court had to proceed under R.C.

2929.13(B)(2), which provided for consideration of the purposes and principles of

sentencing along with the statutory seriousness and recidivism factors.        Therefore, in

sentencing Taylor to community control, the trial court necessarily did impose that sanction

under R.C. 2929.13(B)(2). Accordingly, pursuant to R.C. 2951.041(B)(1), he was ILC

eligible.” Id. Our analysis of this issue is more fully discussed in Taylor and in State v.

Ward, 2d Dist. Montgomery No. 25988, 2014-Ohio-3505.

       {¶ 8}       Based on our holdings in Taylor and Ward, the parties agree that the trial

court erred in concluding that Browning was statutorily ineligible for ILC. We agree with
                                                                                          7

the parties’ assessment.

       {¶ 9}    Browning’s assignment of error is sustained.

       {¶ 10}    The judgment will be reversed, and the cause will be remanded for the trial

court to determine, in the exercise of its discretion, whether to grant Browning ILC.

                                         ..........

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

April F. Campbell
Adelina E. Hamilton
Hon. Dennis J. Langer
