[Cite as State v. Williams, 2020-Ohio-3992.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-19-1129

        Appellee                                   Trial Court No. CR0201802829

v.

Darrell Williams                                   DECISION AND JUDGMENT

        Appellant                                  Decided: August 7, 2020

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

                                               *****

        OSOWIK, J.

        {¶ 1} This is an appeal brought by appellant, Darrell Williams, from the judgment

of the Lucas County Court of Common Pleas. In this case, appellant was indicted on

October 4, 2018, on one count of aggravated robbery, in violation of R.C. 2911.01, a

felony of the first degree, and abduction with a specification, in violation of R. C.

2905.02, a felony of the first degree.
       {¶ 2} On April 18, 2019, appellant entered a plea of guilty pursuant to North

Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.E.2d 162 (1970), to an amended

charge of robbery, a violation of R.C. 2911.02(A)(1) and (B), a felony of the second

degree. As part of a plea agreement, the state would dismiss the abduction and

specification charge at sentencing. Appellant also admitted to a violation of the terms of

a pending community control violation.

       {¶ 3} The court sentenced appellant to six years of incarceration on the robbery

charge, with three years of mandatory postrelease control, to be served consecutive to the

sentence for the community control violation. Appellant did not appeal from the

revocation of his community control.

       {¶ 4} At sentencing, the trial court told appellant that he was not a proper

candidate for placement in a program of shock incarceration or intensive program

prison. However, in its judgment entry the court specifically found the appellant

“eligible but not recommended for shock incarceration under R.C. 5120.031 or intensive

program prison under R.C. 5120.032.”

       {¶ 5} Appellant appeals from his sentence for the robbery and raises a single

assignment of error:

              THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT NOT A

       PROPER CANDIDATE AND/OR ELIGIBLE BUT NOT RECOMMENDED

       FOR SHOCK INCARCERATION WITHOUT SPECIFYING REASONS AS

       REQUIRED BY R.C. 2929.19(D).




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       {¶ 6} Appellant argues that R.C. 2929.19(D) requires the trial court provide its

reasons for disapproving shock incarceration or the intensive program prison.

       {¶ 7} However, not all offenders are eligible for shock incarceration or an

intensive prison program. R.C. 5120.032(B)(2), which sets forth the eligibility criteria

for an intensive prison program, excludes individuals who are serving a prison term for

“aggravated murder, murder, or a felony of the first- or second-degree * * *.” Id.

R.C. 5120.031, the shock incarceration statute, defines an “eligible offender” as a person

who has pled guilty to or been convicted of a felony, except those individuals who are

ineligible to participate in an intensive prison program.

       {¶ 8} Appellant was sentenced for robbery, a second-degree felony, which

rendered him ineligible for both shock incarceration and an intensive program prison. The

trial court expressly told him at sentencing that he was ineligible for shock incarceration

or an intensive program prison. Nevertheless, the judgment entry inaccurately found that

he was eligible.

       {¶ 9} Since the statute specifically excludes the appellant from eligibility for

shock incarceration or an intensive prison program, we find appellant’s sole assignment

of error not well-taken and, therefore, it is denied.

       {¶ 10} However, we remand this case back to the trial court for issuance of a nunc

pro tunc entry with respect to its May 17, 2019 judgment entry of sentencing to reflect




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that appellant is not eligible for shock incarceration under R.C. 5120.031 or an intensive

program prison under R.C. 5120.032.

       {¶ 11} The judgment of the trial court is affirmed, but this case is remanded to the

trial court to nunc pro tunc its May 17, 2019 sentencing entry consistent with this

decision. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed
                                                                            and remanded.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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