[Cite as State v. McCoppin, 2016-Ohio-5440.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellant                         :   C.A. CASE NO. 27020
                                                     :
 v.                                                  :   T.C. NO. 15CR3312
                                                     :
 JASON McCOPPIN                                      :   (Criminal appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellee                          :
                                                     :

                                                ...........

                                               OPINION

               Rendered on the ___19th___ day of _____August_____, 2016.

                                                ...........

MEAGAN WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, 5540 Far Hills Avenue, Suite 202,
Dayton, Ohio 45429
      Attorney for Defendant-Appellee

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

DONOVAN, P.J.

        {¶ 1} This matter is before the Court on the February 19, 2016 Notice of Appeal of

the State of Ohio. The State appeals from Jason McCoppin’s judgment entry of conviction

imposing community control sanctions following McCoppin’s guilty plea to one count of

failure to identify, in violation of R.C. 2950.05(A) and (F)(1). McCoppin concedes error,
                                                                                          -2-


and we hereby vacate McCoppin’s sentence and remand the matter for resentencing.

       {¶ 2} McCoppin’s December 11, 2015 indictment provides that he was convicted

of gross sexual imposition on September 25, 2008, a felony of the fourth degree, and that

he was previously convicted of failure to notify on May 25, 2011, also a felony of the fourth

degree. McCoppin pled not guilty on December 15, 2015, and he entered his plea of

guilty on December 31, 2015. The court sentenced him to community control sanctions

not to exceed five years.

       {¶ 3} The State’s sole assignment of error is as follows:

              THE TRIAL COURT ERRED IN IMPOSING A SENTENCE THAT IS

       CONTRARY TO LAW.

       {¶ 4} McCoppin “requests that this Court reverse the trial court’s termination entry

and remand for resentencing.”

       {¶ 5} R.C. 2953.08(G)(2)(b) provides:

              ***

              The appellate court may increase, reduce, or otherwise modify a

       sentence that is appealed under this section or may vacate the sentence

       and remand the matter to the sentencing court for resentencing. The

       appellate court's standard for review is not whether the sentencing court

       abused its discretion. The appellate court may take any action authorized

       by this division if it clearly and convincingly finds either of the following:

       ***

       (b) That the sentence is otherwise contrary to law.

       {¶ 6} R.C. 2950.99(A)(1)(b) provides the penalties for a violation of R.C. 2950.05
                                                                                           -3-


in relevant part as follows:

              ***

              (iii) If the most serious sexually oriented offense or child-victim

       oriented offense that was the basis of the registration, notice of intent to

       reside, change of address notification, or address verification requirement

       that was violated under the prohibition is a felony of the fourth or fifth degree

       if committed by an adult or a comparable category of offense committed in

       another jurisdiction, the offender is guilty of a felony of the third degree.

       {¶ 7} R.C. 2950.99(A)(2)(b) provides:

              In addition to any penalty or sanction imposed under division

       (A)(1)(b)(i), (ii), or (iii) of this section or any other provision of law for a

       violation of a prohibition in section 2950.04, 2950.041, 2950.05, or 2950.06

       of the Revised Code, if the offender previously has been convicted of or

       pleaded guilty to, or previously has been adjudicated a delinquent child for

       committing, a violation of a prohibition in section 2950.04, 2950.041,

       2950.05, or 2950.06 of the Revised Code when the most serious sexually

       oriented offense or child-victim oriented offense that was the basis of the

       requirement that was violated under the prohibition is a felony if committed

       by an adult or a comparable category of offense committed in another

       jurisdiction, the court imposing a sentence upon the offender shall impose

       a definite prison term of no less than three years. The definite prison term

       imposed under this section, subject to divisions (C) to (I) of section 2967.19

       of the Revised Code, shall not be reduced to less than three years pursuant
                                                                                        -4-


      to any provision of Chapter 2967. or any other provision of the Revised

      Code. (Emphasis added.)

      {¶ 8} We agree with the parties that the trial court erred when it failed to impose

a prison term as required by R.C. 2950.99(A)(2)(b).1 Since the imposition of community

control sanctions is contrary to law, those sanctions are vacated and the matter is

remanded to the trial court for resentencing.2

                                       ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Meagan Woodall
Andrew C. Schlueter
Hon. Dennis J. Langer




1
  We note that McCoppin’s Presentence Investigation Report erroneously suggests
eligibility for community control sanctions and erroneously notes there is no mandatory
prison term.

2
 We note that McCoppin’s plea form indicates that he is eligible for community control
sanctions for a period of up to five years. This misinformation is sufficient to render his
plea invalid. Upon remand, McCoppin’s plea would be subject to vacating at his election.
