[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.”
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[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