State v. Curry

2021 Ohio 2746

• Court: Ohio Court of Appeals
• Decided: August 11, 2021
• Docket: C-200254
• Status: Published

Opinion

[Cite as State v. Curry, 2021-Ohio-2746.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200254 TRIAL NO. B-1903181 Plaintiff-Appellee, :

vs. : O P I N I O N. ANDRE CURRY, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: August 11, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Presiding Judge.

{¶1} Defendant-appellant Andre Curry appeals from the trial court’s

judgment revoking his community control and imposing a lifetime driver’s license

suspension. In a single assignment of error, Curry argues that his sentence was

contrary to law because the trial court failed to impose the license suspension as part

of his original sentence. The state concedes the error.

{¶2} Curry was indicted for failure to comply with an order or signal of a

police officer, in violation of R.C. 2921.331(B), a felony of the third degree under R.C.

2921.331(C)(5). He entered a guilty plea to a reduced charge of failure to comply, a

felony of the fourth degree under R.C. 2921.331(C)(4). A felony violation of R.C.

2921.331(B) carried a mandatory class two driver’s license suspension, for which the

trial court was required to impose a definite period of suspension of three years to

life. See R.C. 2921.331(E); R.C. 4510.02(A)(2).

{¶3} The trial court sentenced Curry to a three-year period of community

control, with the condition that he complete the River City treatment program and

aftercare. The trial court failed to impose the mandatory driver’s license suspension

required by R.C. 2921.331(E). Neither party appealed the sentence.

{¶4} A community-control violation was filed against Curry, alleging that he

refused the River City program’s intake interview. Curry pled guilty to the violation.

The trial court revoked community control and imposed an 18-month prison term

and a lifetime driver’s license suspension.

{¶5} As the state concedes, the court’s failure to include in its original

sentence and sentencing entry the statutorily mandated license suspension rendered

that part of the sentence voidable. See State v. Henderson, 161 Ohio St.3d 285,

2020-Ohio-4784, 162 N.E.3d 776, ¶ 1. In order to correct the error, it had to be

2 OHIO FIRST DISTRICT COURT OF APPEALS

raised on direct appeal. See State v. Emanuel, 1st Dist. Hamilton No. C-190450,

2021-Ohio-448, ¶ 10. But neither party filed a direct appeal.

{¶6} Curry’s sentence on the failure-to-comply charge became final upon

the filing of the original sentencing entry and the trial court lacked authority to

modify the sentence by imposing the license suspension as part of its sentence for

Curry’s community-control violation. See State v. Carlisle, 131 Ohio St.3d 127, 2011-

Ohio-6553, 961 N.E.2d 671, ¶ 1 and 11.

{¶7} Consequently, we conclude that the license-suspension portion of

Curry’s sentence on the community-control violation was contrary to law. See R.C.

2953.08(G)(2). Accordingly, we sustain the assignment of error and modify the

judgment of the trial court to vacate the lifetime driver’s license suspension. The

judgment of the trial court is otherwise affirmed.

Affirmed as modified.

BERGERON and BOCK, JJ., concur.

Please note: The court has recorded its own entry this date.