[Cite as State v. Silva, 2013-Ohio-5676.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2013CA00033 : SEAN DAVID SILVA : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2012-CR- 1322
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 9, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. BARRY T. WAKSER STARK COUNTY PROSECUTOR STARK COUNTY PUBLIC DEFENDER 201 Cleveland Ave S.W., Suite 104 KATHLEEN O. TATARSKY Canton, OH 44702 110 Central Plaza South, Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2013CA00033 2
Delaney, J.
{¶1} Defendant-Appellant Sean David Silva appeals the February 1, 2013
sentencing entry of the Stark County Court of Common Pleas. Plaintiff-Appellee is the
State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 6, 2012, Defendant-Appellant Sean David Silva was
indicted on one count of receiving stolen property, a fourth degree felony in violation of
R.C. 2913.51(A). Silva was released on bond.
{¶3} Silva did not appear for his arraignment on November 30, 2012. As a
result, a capias was issued for his arrest and his bond was revoked.
{¶4} Silva appeared before the trial court on January 2, 2013 and entered a
plea of guilty to the charge of receiving stolen property. The trial court ordered a pre-
sentence investigation.
{¶5} On January 30, 2012, the trial court held the sentencing hearing. At the
hearing, Silva requested the trial court sentence him to a community control sanction
instead of a prison term. Silva cited to R.C. 2929.13(B)(1)(a) to argue the trial court was
required to sentence Silva to a community control sanction because Silva met the
criteria under the statute. The version of R.C. 2929.13(B)(1)(a) in effect at the time of
sentencing stated in pertinent part:
Except as provided in division (B)(1)(b) of this section, if an offender is
convicted of or pleads guilty to a felony of the fourth or fifth degree that is
not an offense of violence, the court shall sentence the offender to a Stark County, Case No. 2013CA00033 3
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 or to an offense of violence that is a misdemeanor and that
the offender committed within two years prior to the offense for which
sentence is being imposed.
{¶6} Silva argued the criteria found under R.C. 2929.13(B)(1)(a) applied to his
case. Silva stated his pre-sentence investigation report showed numerous previous
felony convictions, but he was last convicted of a felony offense on March 28, 2010,
three years prior to his current conviction. He argued R.C. 2929.13(B)(1)(a)(i) stated
that because Silva had not been previously convicted of a felony offense within two
years prior to the offense for which sentence was being imposed, the trial court was
required to sentence Silva to a community control sanction. Silva argued in the
alternative, before the trial court could sentence Silva to a prison term, the trial court
was required to first contact the Department of Rehabilitation and Correction for a
recommendation of a community control sanction.
{¶7} The trial court responded:
* * * The Court has had the opportunity to review the presentence
investigation in this matter. I would indicate the presentence investigation
in this matter recommends a straight prison term. I will also indicate that I
do not believe that the Defendant is subject to the new requirements for
Felony Four and Felony Five non-violent sentencing. I do not believe he
falls within the requirements. Stark County, Case No. 2013CA00033 4
He has numerous prior felony convictions and prior prison terms
that he has served and the Court finds after reviewing the presentence
investigation that community control sanctions are not appropriate under
the circumstances.
The Court has applied the required felony sentencing criteria that
are applicable to him. The Court does not believe that there is any
requirement under his circumstances that the Court notify DRC in advance
of issuing any type of prison term.
(T. 9-10).
{¶8} The trial court sentenced Silva to a prison term of twelve months. The
sentencing entry was filed on February 1, 2013. It is from this decision Silva now
appeals.
ASSIGNMENT OF ERROR
{¶9} Silva raises one Assignment of Error:
{¶10} “THE TRIAL COURT ERRED WHEN IT IMPOSED A PRISON TERM IN
CONTRAVENTION OF R.C. 2929.13.”
ANALYSIS
{¶11} Silva argues in his sole Assignment of Error the trial court erred in
sentencing him to twelve months in prison. Silva states the trial court failed to comply
with the sentencing requirements under R.C. 2929.13(B)(1), as amended by H.B. 86,
because the trial court was required to impose a sentence of community control
sanctions. Stark County, Case No. 2013CA00033 5
{¶12} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,
the Ohio Supreme Court established a two-step procedure for reviewing a felony
sentence. The first step is to “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” State v. Conley, 5th Dist. Stark
No. 2012CA00150, 2013-Ohio-4137, ¶ 35 citing Kalish at ¶ 4. If the first step is
satisfied, the second step requires the trial court's decision be reviewed under an
abuse-of-discretion standard. Id. We have recognized that “[w]here the record lacks
sufficient data to justify the sentence, the court may well abuse its discretion by
imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.
Licking App.No.2006–CA–41, 2006–Ohio–5823, ¶ 52.
Criteria to Impose Mandatory Community Control
{¶13} R.C. 2929.13 governs sentencing guidelines for various specific offenses
and degrees of offenses. On September 30, 2011, H.B. 86 went into effect and it
amended R.C. 2929.13(B)(1) to prohibit prison sentences for certain fourth and fifth-
degree felonies. State v. Johnson, 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575, ¶
58. H.B. 86 applies to the instant case because it went into effect before Silva was
sentenced. If certain criteria are met in section (a) of the statute, the trial court is
required to sentence the offender to community control sanctions. R.C.
2929.13(B)(1)(a), as amended by H.B. 86, reads:
(a) Except as provided in division (B)(1)(b) of this section, if an offender is
convicted of or pleads guilty to a felony of the fourth or fifth degree that is
not an offense of violence, the court shall sentence the offender to a Stark County, Case No. 2013CA00033 6
community control sanction of at least one year’s duration if all of the
(i) The offender previously has not been convicted of or pleaded guilty to a
felony offense or to an offense of violence that is a misdemeanor and that
the offender committed within two years prior to the offense for which
(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
correct 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.
{¶14} The question raised in the present case is whether under the H.B. 86
version of R.C. 2929.13(B)(1)(a)(i), was the trial court required to sentence Silva to
community control sanctions? Silva and the State dispute the interpretation of R.C.
2929.13(B)(1)(a)(i). According to Silva, the language of subsection (i) requires a felony
conviction and that the offender committed the felony within two years of the instant
sentence. The State argues the subsection reads that if an offender has been
convicted or pleaded guilty to a felony offense at any time, subsection (i) is not satisfied.
The State contends the two-year look-back period referred to in subsection (i) only
applies to violent misdemeanor offenses. Stark County, Case No. 2013CA00033 7
{¶15} This Court has previously had the opportunity to review former R.C.
2929.13(B)(1)(a)(i) in State v. Takos, 5th Dist. Richland No. 2012-CA-0078, 2013-Ohio-
565 and State v. Mann, 5th Dist. Coshocton No. 2012CA0018, 2013-Ohio-2133. In
those cases, the defendants were convicted of fifth degree felonies and sentenced to
prison rather than community control pursuant to former R.C. 2929.13(B)(1)(a). We
affirmed the trial court’s decision to impose a prison sentence based on the defendants’
past felony convictions. Mann at ¶ 7; Takos at ¶ 14.
{¶16} Other districts have also interpreted R.C. 2929.13(B)(1)(a)(i) to mean the
two-year look-back provision applies only to prior convictions for violent misdemeanor
offenses. In State v. Martin, 12th Dist. Butler No. CA2013-03-055, 2013-Ohio-3676, the
Twelfth District Court of Appeals affirmed the defendant’s sentence to a prison term
based on a conviction for fifth degree felonies. The applicable sentencing statute was
R.C. 2929.13(B)(1), as amended by H.B. 86. The court held:
As can be seen, former R.C. 2929.13(B)(1)(a)(i) applies only if the
offender previously has not been convicted of or pleaded guilty (1) to a
felony offense, or (2) to an offense of violence that is a misdemeanor and
that the offender committed within two years prior to the offense for which
sentence is being imposed. Here, the record shows that Martin previously
was convicted of a felony offense. Therefore the trial court was not
required to sentence him to community control under former R.C.
2929.13(B)(1)(a).
Martin at ¶ 15. The Sixth District Court of Appeals in State v. Lumpkin, 6th Dist. Lucas
No. L-11-1294, 2013-Ohio-840, also held under former R.C. 2929.13(B)(1)(a)(i) that a Stark County, Case No. 2013CA00033 8
mandatory sentence of community control sanctions did not apply to a defendant with
prior felony convictions. Id. at ¶ 7.
{¶17} In State v. Esmail, the Seventh District Court of Appeals interpreted
former R.C. 2929.13(B)(1)(a)(i) in the same manner as Fifth, Sixth, and Twelfth
Districts. In Esmail, the defendant had been previously convicted of felonies in 2003
and 2006. The trial court sentenced the defendant in 2011 to prison for a first degree,
third, and fifth degree felonies. The defendant argued the trial court was required to
sentence the defendant on the fifth degree felony to community control sanctions. The
Seventh District disagreed. It stated:
The trial court must sentence an offender convicted of a non-violent fifth-
degree felony to at least one year of community control if all of the factors
in R.C. 2929.13(B)(1)(a)(i)-(iii) apply, except when one of the factors in
(B)(1)(b) apply; then the court has discretion to impose a prison term.
R.C. 2929.13(B)(1) does not apply to Esmail because he was previously
convicted of a felony ((B)(1)(a)(i)) and in the instant case, he was
sentenced on first-degree and third-degree felonies in addition to the fifth-
degree felonies ((B)(1)(a)(ii)). Because all of the factors in R.C.
2929.13(B)(1)(a) do not apply to Esmail, it is not necessary to examine the
exceptions contained in (B)(1)(b).
Id. at ¶ 35.
{¶18} In support of his interpretation of R.C. 2929.13(B)(1)(a)(i), Silva refers this
Court to State v. Johnson, 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575. The Eighth Stark County, Case No. 2013CA00033 9
District construed the subsection to provide for a two-year look-back provision for prior
convictions for violent misdemeanor offenses and felony convictions:
Although the parties do not dispute that subsections (ii) and (iii) are
satisfied in this case, they part company with respect to subsection (i).
According to the state, if a defendant has been convicted of or pleaded
guilty to a felony offense at any time, then subsection (i) is not satisfied.
But the language of subsection (i) requires a felony conviction and that the
offender committed the felony within two years of the instant sentence.
The state's position would have us effectively read the word “and” out of
the provision. We hold that R.C. 2929.13(B)(1)(a)(i) is satisfied where a
defendant has previously been convicted of or pleaded guilty to a felony
offense, but that conviction or guilty plea occurred more than two years
before the current sentence is imposed.
In the instant case, Johnson had not been convicted of a felony or
pleaded guilty to a felony within two years of the sentence being imposed.
Therefore, R.C. 2929.13(B)(1)(a)(i) applied. Because there is no dispute
that R.C. 2929.13(B)(1)(a)(ii)-(iii) applied, the trial court was required to
sentence Johnson to a community control sanction. Accordingly, the trial
court committed clear error when it failed to comply with the applicable
statute and instead sentenced Johnson to two eleven-month sentences to
run consecutively. Accordingly, we sustain the fifth assignment of error.
Johnson at ¶ 60-61. Stark County, Case No. 2013CA00033 10
{¶19} The Johnson decision was issued on February 21, 2013, before Lumpkin,
Esmail, Martin, and Mann. The Eighth District Court of Appeals is the only district to
follow the precedent of Johnson as to the interpretation of former R.C.
2929.13(B)(1)(a)(i). The majority of districts that have addressed former R.C.
2929.13(B)(1)(a)(i) have found the subsection applies only if the offender has not been
previously convicted of or pleaded guilty (1) to a felony offense or (2) to an offense of
violence that is a misdemeanor and that the offender committed within two years prior to
the offense for which sentence is being imposed. We interpret former R.C.
2929.13(B)(1)(a)(i) to state if a defendant has been convicted of or pleaded guilty to a
felony offense at any time, subsection (i) is not satisfied.
{¶20} In the present case, the trial court referred to Silva’s prior felony
convictions when it sentenced Silva to prison instead of community control. Pursuant to
R.C. 2929.13(B)(1)(a)(i), the trial court was not mandated to sentence Silva to
community control sanctions because of Silva’s prior felony convictions. A prison term
of twelve months is within the statutory sentencing range for a felony of the fourth
degree.
{¶21} It should be noted R.C. 2929.13(B)(1) was amended by S.B. 160, effective
March 22, 2013. The amended statute states:
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an
offender is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence, the court shall sentence the
offender to a community control sanction of at least one year's duration if
all of the following apply: Stark County, Case No. 2013CA00033 11
(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
(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
(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.
Criteria for Discretionary Sentencing
{¶22} The State argues the trial court was within its discretion to sentence Silva
to prison because Silva violated a condition of his bond by not appearing at a scheduled
hearing. Section (b) of R.C. 2929.13(B)(1) grants the trial court discretion to sentence
an offender to prison if certain criteria are met:
(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 if any of the following apply:
(i) The offender committed the offense while having a firearm on or about
the offender’s person or under the offender’s control. Stark County, Case No. 2013CA00033 12
(ii) The offender caused physical harm to another person while committing
the offense.
(iii) The offender violated a term of the conditions of bond as set by the
court.
(iv) The court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, and the
department, within the forty-five day period specified in that division, did
not provide the court with the name of, contact information for, and
program details of any community control sanction of at least one year’s
duration that is available for persons sentenced by the court.
{¶23} In this case, the trial court did not make a finding at the sentencing
hearing that Silva violated a condition of his bond. The argument is moot, however,
based on our finding under R.C. 2929.13(B)(1)(a)(i).
Department of Rehabilitation and Correction
{¶24} Silva finally argues the trial court erred by failing to comply with former
R.C. 2929.13(B)(1)(c). Silva argues the statute required the trial court to contact the
department of rehabilitation and correction to recommend a community control sanction
before the trial court could sentence Silva to prison. The former statute reads:
If a court that is sentencing 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 believes that no community control sanctions are available for
its use that, if imposed on the offender, will adequately fulfill the overriding
principles and purposes of sentencing, the court shall contact the Stark County, Case No. 2013CA00033 13
department of rehabilitation and correction and ask the department to
provide 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. Not later
than forty-five days after receipt of a request from a court under this
division, the department shall provide 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, if any. Upon making a request under this division
that relates to a particular offender, a court shall defer sentencing of that
offender until it receives from the department 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 or for forty-five days, whichever is the earlier.
If the department provides 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 within the forty-five-day period specified in this
division, the court shall impose upon the offender a community control
sanction under division (B)(1)(a) of this section, subject to divisions
(B)(1)(b)(i) and (ii) of this section. If the department does not provide 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 Stark County, Case No. 2013CA00033 14
that are available for persons sentenced by the court within the forty-five-
day period specified in this division, the court may impose upon the
offender a prison term under division (B)(1)(b)(iii) of this section.
{¶25} We find no error for the trial court to sentence Silva to a twelve-month
prison term without application of R.C. 2929.13(B)(1)(c). The trial court appropriately
sentenced Silva to prison pursuant to R.C. 2929.13(B)(1)(a)(i). Stark County, Case No. 2013CA00033 15
CONCLUSION
{¶26} The trial court complied with R.C. 2929.13(B) when it sentenced Silva to a
twelve-month prison term. For a felony of the fourth degree, a prison term of twelve
months is within the statutory sentencing range. The trial court considered the
purposes and principles of sentencing and recidivism factors. State v. Kalish, 120 Ohio
St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912.
{¶27} The sole Assignment of Error of Defendant-Appellant Sean David Silva is
overruled.
{¶28} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN