[Cite as State v. Harp, 2016-Ohio-4921.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 CASE NO. CA2015-12-096 

 Plaintiff-Appellee, : 

 O P I N I O N 

 : 7/11/2016 

 - vs - 

 : 

DONALD K. HARP, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2014CR0499 

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South 

Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee 

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main 

Street, Batavia, Ohio 45103, for defendant-appellant 

 

 S. POWELL, J.

{¶ 1} Defendant-appellant, Donald K. Harp, appeals from the decision of the 

Clermont County Court of Common Pleas sentencing him to serve a mandatory term of 36 

months in prison after he pled no contest to one count of illegal assembly or possession of 

chemicals for the manufacture of methamphetamine. For the reasons outlined below, we 

reverse and remand for the limited purpose of resentencing. 
Clermont CA2015-12-096 

 - 2 - 

{¶ 2} On September 4, 2014, the Clermont County Grand Jury returned an indictment 

charging Harp with one count of illegal assembly or possession of chemicals for the 

manufacture of drugs in violation of R.C. 2925.041(A), a third-degree felony. According to 

the bill of particulars, the charges stemmed from allegations that on January 4, 2014, Harp 

was observed purchasing items commonly used in the manufacture of methamphetamine 

from a Meijer store located in Milford, Clermont County, Ohio. Harp was later stopped by 

Miami Township Police Department and found to be in possession of numerous items 

necessary for the manufacture of methamphetamine. Harp admitted the same. It is 

undisputed that Harp had previously been convicted of trafficking in marijuana in violation of 

R.C. 2925.03(A)(1), a fourth-degree felony; possession of marijuana in violation of R.C. 

2925.11(A), a third-degree felony; and illegal assembly or possession of chemicals for the 

manufacture of methamphetamine in violation of R.C. 2925.041(A), also third-degree felony. 

{¶ 3} On September 10, 2014, Harp entered a plea of not guilty. However, on 

October 8, 2015, after the trial court decided a number of other issues not relevant to this 

appeal, Harp withdrew his not guilty plea and entered a plea of no contest to the single 

charged offense. After accepting Harp's no contest plea, the trial court found Harp guilty as 

charged. The trial court then held a sentencing hearing and sentenced Harp to serve a 

mandatory term of 36 months in prison. In so holding, the trial court stated that it was 

required to impose a mandatory 36-month prison sentence in light of this court's decision in 

State v. Young, 12th Dist. Warren No. CA2014-05-074, 2015-Ohio-1347, a decision that 

addressed a similarly situated defendant found guilty of illegal assembly or possession of 

chemicals for the manufacture of methamphetamine. 

{¶ 4} Harp now appeals from the trial court's decision, raising a single assignment of 

error for review. 

{¶ 5} THE TRIAL COURT ERRED IN IMPOSING A 36-MONTH PRISON TERM. 
Clermont CA2015-12-096 

 - 3 - 

{¶ 6} In his single assignment of error, Harp argues the trial court misinterpreted our 

decision in Young and improperly determined that it was required to sentence him to a 

mandatory term of 36 months in prison. We agree. 

{¶ 7} As with all felony sentences, we review this sentence under the standard of 

review set forth in R.C. 2953.08(G)(2). State v. Crawford, 12th Dist. Clermont No. CA2012-

12-088, 2013-Ohio-3315, ¶ 6. Pursuant to that statute, an appellate court does not review 

the sentencing court's decision for an abuse of discretion. State v. Marcum, Slip Opinion No. 

2016-Ohio-1002, ¶ 10. Rather, R.C. 2953.08(G)(2) compels an appellate court to modify or 

vacate a sentence only if the appellate court finds by clear and convincing evidence that "the 

record does not support the trial court's findings under relevant statutes or that the sentence 

is otherwise contrary to law." Id. at ¶ 1. A sentence is not clearly and convincingly contrary 

to law where trial court "considers the principles and purposes of R.C. 2929.11, as well as the 

factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the 

defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. 

CA2015-06-100, 2016-Ohio-2890, ¶ 8. 

{¶ 8} Moreover, even in those cases where the sentence imposed does not require 

any of the statutory findings specifically addressed within R.C. 2953.08(G)(2), an appellate 

court will review those sentences "under a standard that is equally deferential to the 

sentencing court." Marcum at ¶ 23. "That is, an appellate court may vacate or modify any 

sentence that is not clearly and convincingly contrary to law only if the appellate court finds 

by clear and convincing evidence that the record does not support the sentence." Id. Thus, 

this court may "increase, reduce, or otherwise modify a sentence only when it clearly and 

convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record." 

State v. Brandenburg, Slip Opinion No. 2016-Ohio-2970, ¶ 1, citing Id. at ¶ 7. 

{¶ 9} As noted above, in Young this court addressed the available sentences the trial 
Clermont CA2015-12-096 

 - 4 - 

court could impose for a similarly situated defendant found guilty of illegal assembly or 

possession of chemicals for the manufacture of methamphetamine. Specifically, this court 

addressed appellant's argument that the trial court erred "in sentencing him to 60 months in 

prison under R.C. 2925.041(C)(1), and not to 36 months in prison under R.C. 2929.14(A)(3)." 

In determining the trial court so erred, this court initially stated: 

R.C. 2929.14(A)(3), which governs prison terms for third-degree 

felonies, states: 

(a) For a felony of the third degree that is a 

violation of [R.C.] 2903.06, 2903.08, 2907.03, 

2907.04, or 2907.05 or that is a violation of [R.C.] 

2911.02 or 2911.12 if the offender previously has 

been convicted of or pleaded guilty in two or more 

separate proceedings to two or more violations of 

[R.C.] 2911.01, 2911.02, 2911.11, or 2911.12, the 

prison term shall be twelve, eighteen, twenty-four, 

thirty, thirty-six, forty-two, forty-eight, fifty-four, or 

sixty months. 

(b) For a felony of the third degree that is not an 

offense for which division (A)(3)(a) of this section 

applies, the prison term shall be nine, twelve, 

eighteen, twenty-four, thirty, or thirty-six months. 

The statutory provisions listed in R.C. 2929.14(A)(3)(a) refer to 

certain vehicular offenses, certain sexual offenses, and robbery 

and burglary. Importantly, illegal assembly of chemicals for the 

manufacture of drugs in not an offense listed in R.C. 

2929.14(A)(3)(a). Thus, pursuant to R.C. 2929.14(A)(3)(a) and 

(b), appellant's maximum sentence for violating R.C. 2925.041 

would be 36 months in prison. 

R.C. 2925.041 governs illegal assembly of chemicals for the 

manufacture of drugs and states, in relevant part: 

(C) Whoever violates this section is guilty of illegal 

assembly or possession of chemicals for the 

manufacture of drugs. Except as otherwise 

provided in this division, illegal assembly or 

possession of chemicals for the manufacture of 

drugs is a felony of the third degree, and * * * the 

court shall impose a mandatory prison term * * * as 

follows: 
Clermont CA2015-12-096 

 - 5 - 

(1) Except as otherwise provided in this division, 

there is a presumption for a prison term for the 

offense. * * * If the offender two or more times 

previously has been convicted of or pleaded guilty 

to a felony drug abuse offense and if at least one 

of those previous convictions or guilty pleas was to 

a violation of division (A) of this section, a violation 

of [R.C.] 2919.22(B)(6), or a violation of [R.C.] 

2925.04(A), the court shall impose as a mandatory 

prison term one of the prison terms prescribed for 

a felony of the third degree that is not less than five 

years. 

The record shows that appellant was previously convicted of 

"illegal manufacture of drugs, aggravated possession of drugs" 

and has a prior conviction for illegal assembly of chemicals for 

the manufacture of drugs under R.C. 2925.041(A). As a result, 

pursuant to R.C. 2925.041(C)(1), appellant's mandatory 

sentence for violating R.C. 2925.041 would be 60 months (5 

years) in prison. 

Young, 2015-Ohio-1347 at ¶ 38-41. 

{¶ 10} This court then went on to state: 

R.C. 2925.041(C)(1) sets forth a specific sentencing scheme for 

third-degree felonies involving felony drug abuse offenses and is 

thus specific, rather than general, in nature. Likewise, R.C. 

2929.14(A)(3), which sets forth a specific, two-tiered sentencing 

scheme for third-degree felonies, is specific, rather than general, 

in nature. The two statutes are clearly in conflict since the 

maximum sentence authorized for a third-degree felony drug 

offense under R.C. 2925.041(C)(1) is 60 months, while the 

maximum sentence allowed for third-degree felonies, other than 

those listed in R.C. 2929.14(A)(3)(a), is 36 months. Yet, R.C. 

2925.041(C)(1) also incorporates by reference R.C. 2929.14 

when the former states, "the court shall impose as a mandatory 

prison term one of the prison terms prescribed for a felony of the 

third degree * * *." 

(Internal citations omitted.) Id. at ¶ 46. 

{¶ 11} Concluding, this court determined: 

[W]e find that appellant should have been sentenced under R.C. 

2929.14(A)(3)(b), and not under R.C. 2925.041(C)(1). The trial 

court's decision to sentence appellant to 60 months in prison 

under R.C. 2925.041(C)(1) is therefore clearly and convincingly 

contrary to law and appellant's sentence must be vacated. See
Clermont CA2015-12-096 

 - 6 - 

R.C. 2953.08(G)(2). On remand, the trial court should exercise 

its discretion in resentencing appellant to one of the prison terms 

set forth in R.C. 2929.14(A)(3)(b) up to 36 months in prison. 

Id. at ¶ 49. 

{¶ 12} Relying on our decision in Young, and because it was undisputed Harp had at 

least two previous convictions for felony drug abuse offenses with at least one of those 

convictions being a violation of R.C. 2925.041(A) for the illegal assembly or possession of 

chemicals for the manufacture of methamphetamine, the trial court concluded that it was 

required to sentence Harp to a mandatory term of 36 months in prison. However, this is a 

misinterpretation of our holding in Young, for our decision states that under these exact 

circumstances the trial court may "exercise its discretion" in sentencing a defendant to one of 

the prison terms set forth in R.C. 2929.14(A)(3)(b) "up to 36 months in prison." (Emphasis 

added.) Id. Therefore, due to the trial court's misinterpretation of our decision in Young, 

Harp's claim that the trial court erred by finding it was required to sentence him to a 

mandatory 36-month prison term has merit and is sustained. 

{¶ 13} Although agreeing the trial court "erroneously stated that Young required it to 

sentence [Harp] to a mandatory three year prison sentence," the state nevertheless argues 

that the trial court's decision sentencing Harp to a mandatory 36-month prison term should be 

upheld since the General Assembly's clear intent in passing R.C. 2925.041(C)(1) was to 

"impose the maximum mandatory sentence statutorily allowable on those such offenders 

when the offenses was a felony of the third degree[.]" However, the state's argument ignores 

the principles espoused through the rule of lenity. The rule of lenity, as codified by R.C. 

2901.04(A), applies where there is an ambiguity in a statute or a conflict between statutes. 

Young, 2015-Ohio-1347 at ¶ 48, citing State v. Sheets, 12th Dist. Clermont No. CA2006-04-

032, 2007-Ohio-1799, ¶ 29. Specifically, R.C. 2901.04(A) provides in pertinent part that 

"sections of the Revised Code defining offenses or penalties shall be strictly construed 
Clermont CA2015-12-096 

 - 7 - 

against the state, and liberally construed in favor of the accused." Under this rule, "a court 

will not interpret a criminal statute so as to increase the penalty it imposes on a defendant 

where the intended scope of the statute is ambiguous." Sheets at ¶ 28. 

{¶ 14} Based on our decision in Young, it is clear that we found a conflict exists 

between these two disputed statutes. Again, as this court specifically stated in Young: 

The two statutes are clearly in conflict since the maximum 

sentence authorized for a third-degree felony drug offense under 

R.C. 2925.041(C)(1) is 60 months, while the maximum sentence 

allowed for third-degree felonies, other than those listed in R.C. 

2929.14(A)(3)(a), is 36 months. Yet, R.C. 2925.041(C)(1) also 

incorporates by reference R.C. 2929.14 when the former states, 

"the court shall impose as a mandatory prison term one of the 

prison terms prescribed for a felony of the third degree * * *." 

Id. at ¶ 46. 

{¶ 15} Therefore, because the General Assembly has yet to amend either statute so 

as to resolve this conflict, we find it necessary to once again apply the rule of lenity to the 

case at bar and maintain the status quo within this district by following our prior precedent set 

forth in Young. In so holding, we find the fact that the trial court may ultimately impose the 

same sentence upon remand is immaterial. Nor do we find any merit to the fact that the trial 

court indicated it would "probably" still sentence Harp to a mandatory term of 36 months in 

prison, given the fact that the trial court was working under a faulty interpretation of the law 

as laid out by this court in Young. Accordingly, the trial court's decision to sentence Harp to a 

mandatory term of 36 months in prison is reversed and this matter is remanded for the limited 

purpose of resentencing in conformance with this opinion and that of our prior decision in 

Young. 

{¶ 16} Judgment reversed and remanded. 

 M. POWELL, P.J., and PIPER, J., concur.