[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 De fender, 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 methamphet amine. 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 a ssembly 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 fr om 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-deg ree 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 num ber 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 c ontest plea, the trial court found Harp guilty as charged. The trial court then held a sent encing 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 sent ence 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 re view 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 fi nds 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 principl es and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly impos es postrelease contro l, 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 c ontrary to law only if the appellate court finds by clear and convincing evidence that t he record does not support the sentence." Id. Thus, this court may "increase, reduce, or otherwi se modify a sentence only when it clearly and convincingly finds that the sentence is (1) cont rary 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 trialClermont CA2015-12-096

- 4 - court could impose for a sim ilarly 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 c ourt 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 cour t 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 fe lonies 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 c ourt 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 appe llant 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. SeeClermont 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 dr ug abuse offenses with at least one of those convictions being a vi olation of R.C. 2925.041(A) for the illegal assembly or possession of chemicals for the manufacture of methamphetam ine, 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 pr ison 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 stat utorily 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 offens es or penalties shall be strictly construedClermont 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 th is 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 woul d "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 reve rsed and this matter is remanded for the limited purpose of resentencing in conformance with th is opinion and that of our prior decision in Young

. {¶ 16} Judgment reversed and remanded.

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