[Cite as State v. Fields , 2021-Ohio-3845.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO Plaintiff-Appellee

v. MALCOLM FIELDS Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-19

Trial Court Case No. 2019-CR-826 (Criminal Appeal from Common Pleas Court)

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O P I N I O N Rendered on the 29th day of October, 2021.

. . . . . . . . . . . IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecutin g Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbi a Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee MARKUS L. MOLL, Atty. Reg. No. 0093795 & KRISTIE L. GOTWALD, At ty. Reg. No. 0097608, 2621 Dryden Road, Suite 306, Dayton, Ohio 45439 Attorneys for Defendant-Appellant

. . . . . . . . . . . . .-2- DONOVAN, J. {¶ 1} Defendant-Appellant Malcolm Fields was convicted of operating a vehicle while under the influence of alcohol or drugs (OVI), in violati on of R.C. 4511.19(A)(2), a felony of the fourth degree. In this reopened appeal, Fields c laims that the trial court erred in imposing a prison sentence longer than 30 months, erre d in failing to identify the mandatory portion of his sentence, and failed to properly impos e post-release control.

The State concedes error. {¶ 2} For the following reasons, the trial court’s judgment will be r eversed and the

matter will be remanded for the trial court to reduce Fields’s aggregate prison term to 30 months, to notify Fields of the mandatory portion of his senten ce, and for the proper imposition of post-release control. I. Procedural History {¶ 3} On December 16, 2019, Fields was indicted on two counts of OVI (three or more prior offenses), both felonies of the fourth degree. The matter proceeded to a jury trial, and after deliberations, the jury found him guilty of bo th offenses. On March 16, 2020, the trial court merged the two OVI counts and sentenced F ields to 120 days in prison plus an additional 30 months in prison for violating R.C . 4511.19(A)(2) (Count Two). Fields’s aggregate sentence was 34 months in prison. {¶ 4} Fields appealed his conviction, raising three assignments of er ror. He argued that his counsel rendered ineffective assistance by with drawing his motion to suppress, that his conviction was based on insufficient evidenc e and against the manifest weight of the evidence, and that his sentence was not clearly a nd convincingly supported by the record. We overruled each assignment of error and affir med. State v. Fields , 2d-3- Dist. Clark No. 2020-CA-19, 2020-Ohio-5538. {¶ 5} Fields subsequently sought to reopen his direct appeal. In his amended application, he claimed that his appellate counsel was ineffect ive for failing to raise: (1) the trial court erred in failing to correctly advise Fields of the consequences if he failed to comply with post-release control, (2) Fields’s sentence was contrary to law, because the trial court did not consider the principles and purposes of sentencing, (3) Fields’s aggregate 34-month prison sentence was outside the statutory ra nge and contrary to law, (4) the trial court violated Fields’s right to due process when it denied a motion for a continuance, (5) the trial court violated Fields’s right to due process when it precluded him from calling an expert witness at trial, (6) cumulative err ors by trial counsel resulted in ineffective assistance, and (7) trial counsel rendered ineff ective assistance when he failed to convey information regarding plea negotiations. We r eopened Fields’s appeal to allow him to challenge his aggregate sentence and the imposi tion of post-release control, but otherwise overruled his application for reopening. (Decision & Entry, Aug. 4, 2020.) {¶ 6} Fields now raises two assignments of error.

II. Post-Release Control {¶ 7} In his first assignment of error, Fields claims that the trial court erred when it failed to properly notify him that he would be subject to a dis cretionary three-year term of post-release control and that any violation of post-release con trol would subject him to additional time up to one-half of his original term. {¶ 8} At the outset, Fields asserts that his sentence is void due to the trial court’s failure to properly impose post-release control. Fields is inc orrect. In 2020, the Ohio-4- Supreme Court overruled State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 and other cases that had held that, when a judge fai ls to properly impose post-release control, that portion of the defendant’s sentence is void. See State v. Harper , 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. Harper held that any

error in the trial court’s exer cise of its subject matter juris diction in imposing post-release control renders the trial court’s judgment voidable, not void. Id . at ¶ 5, ¶ 42. {¶ 9} Fields was convicted of a felony of the fourth degree and was s ubject to a discretionary period of post-release control of up to three yea rs after his release from prison. See R.C. 2967.28(C). If an offender violates the conditions of po st-release control, the parole board may impose a more restrictive sanctio n, may increase the length of post-release control, or sentence him or her to a prison ter m of up to nine months per violation, with a maximum cumulative prison term of one-half th e stated prison term originally imposed. R.C. 2967.28(F)(2), (3). {¶ 10} When the trial court imposes a prison sentence, the trial court must notify the defendant at sentencing that he or she may be supervised un der post-release control. R.C. 2929.19(B)(2)(e). The court must further advise the defen dant that, if he or she violates a condition of post-release control, the parole board may “impose a prison term, as part of the sentence, of up to one-half of the definite pris on term originally imposed upon the offender as the offender’s stated prison term * * *.” R.C. 2929.19(B)(2)(f). However, a trial court’s failure to comply with this requiremen t “does not negate, limit, or otherwise affect the authority of the parole board to so impose a prison term for a violation of that nature if, pursuant to division (D)(1) of section 2967. 28 of the Revised Code, the parole board notifies the offender prior to the offender's rele ase of the board's authority-5- to so impose a prison term.” Id

. {¶ 11} At sentencing, the trial court told Fields that he could be pla ced on postrelease control for up to three years. Although it advised him of the potential consequences if he were convicte d of a new felony while on post -release control, it did not advise him, as required by R.C. 2929.19(B)(2)(f), that the parole board could sentence him to a prison term of up to one-half the stated prison term f or violations of post-release control. (The trial court’s subsequent judgment entry, however , included the potential consequences if Fields were to violate post-release control.) The State concedes that the trial court’s oral advisement regarding the consequences of violating post-release control was inadequate, and we agree. {¶ 12} Fields’s first assignment o f error is sustained.

III. OVI Prison Sentence {¶ 13} In his second assignment of error, Fields claims that the trial court erred when it sentenced him “to a sentence contradictory to law as it was outside the statutory guidelines.” Specifically, he argues that his total sentence m ust fall within the sentencing range for a fourth-degree OVI felony, which he contends has a m aximum of 30 months in prison. Fields further argues that his sentence was “unconstit utional,” because the trial

court failed to articulate which portion of his sentence was ma ndatory. {¶ 14} OVI offenses have specific sentencing provisions. R.C. 4511.19 (G)(1) states that “[w]hoever violates any provision of divisions (A)( 1)(a) to (i) or (A)(2) of this section is guilty of operating a vehicle under the influence of alcohol, a drug of abuse, or

a combination of them. * * * The court shall sentence the offen der for either offense under Chapter 2929. of the Revised Code, except as otherwise authoriz ed or required by-6- divisions (G)(1)(a) to (e) of this section[.]” {¶ 15} R.C. 4511.19(G)(1)(d) applies to persons who, like Fields, prev iously have been convicted of or pleaded guilty to three or four violations of R.C. 4511.19(A) or (B) within ten years. (This case represented Fields’s fifth OVI co nviction since 2010.) Fields’s two OVI offenses merged, and he was sentenced on Count Two, which alleged a violation of R.C. 4511.19(A)(2). Thus, the specific provisio ns of R.C. 4511.19(G)(1)(d)(ii) applied to his case. {¶ 16} Because Fields was not convicted of the specification in R.C. 2 941.1413,

the trial court had the discretion to sentence him to either a mandatory term of 120 days in jail or a mandatory term of 120 days in prison. R.C. 4511.1 9(G)(1)(d)(ii). The applicable OVI sentencing statute further provides: If the court imposes a mandatory prison term, notwithstanding d ivision (A)(4) of section 2929.14 of the Revised Code, it also may sent ence the offender to a definite prison term that shall be not less than six months and not more than thirty months and the prison terms shall be impos ed as described in division (G)(2) of section 2929.13 of the Revised Code. R.C. 4511.19(G)(1)(d)(ii). {¶ 17} R.C. 2929.13(G)(2) and R.C. 2929.14(B)(4) also describe the pen alties for a fourth-degree felony OVI offense. R.C. 2929.13(G)(2) permits the trial court to impose a mandatory term of 120 days in prison. R.C. 2929.14(B)(4) aut horizes an additional prison term of not less than six months and not more than 30 mo nths. Significantly, R.C. 2929.14(B)(4) further provides that the additional prison term * * * shall be reduced by the sixty or one hundred twenty days imposed upon-7- the offender as the mandatory prison term. The total of the additional prison term imposed under division (B)(4) of this section plus the sixty or one hundred twenty days imposed as the mandatory prison term shall equal a definite term in the range of six months to thirty months for a fourth degree felony OVI offense * * *. If the court imposes an additional prison term under division (B)(4) of this section, the offender shall serve the additional prison term after the offender has served the mandatory prison term required for the offense. * * * (Emphasis added.) {¶ 18} Stated simply, R.C. 4511.19(G)(1)(d)(ii) permitted the trial co urt to impose both a mandatory term of 120 days in prison and an additional 3 0-month prison term in Fields’s case. Under R.C. 2929.14(B)(4), however, the aggregat e of the mandatory and additional terms could not exceed 30 months. Several appellate districts also have noted that the maximum aggregate sentence for a fourth-degree felony OVI offense is 30

months. E.g ., State v. McClellan , 2020-Ohio-5551, 163 N.E.3d 1202, ¶ 12 (6th Dist.) (“The aggregate length of the mandatory prison term and the add itional, non-mandatory term ‘shall equal a definite prison term in the range of six mo nths to thirty months for a fourth degree felony OVI offense[.]’ R.C. 2929.14(B)(4).”); State v. Gourley , 12th Dist. Butler No. CA2006-01-003, 2007-Ohio-1221, ¶ 14 (“[T]he trial co urt erred in informing appellant that the maximum possible sentence was 32 months, as the maximum possible sentence for a fourth degree felony OVI offense is 30 months.”)

. See also State v. Dixon , 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 3 (“The trial court sentenced him to statutory-maximum terms of eight years for felonious assault an d 30 months for [fourth--8- degree felony] OVI.”). {¶ 19} The State concedes that R.C. 2929.14(B)(4) requires the additio nal prison term of 30 months to be reduced by the 120 days imposed on Fiel ds as a mandatory prison term. The State further agrees with Fields that the tri al court was required to specify which portion of his sentence was mandatory. Because w e also agree with both Fields and the State, Fields’s se cond assignment of error is su stained.

IV. Conclusion {¶ 20} For the foregoing reasons, the trial court’s judgment will be r eversed, and

the matter will be remanded for the trial court to reduce Field s’s aggregate prison term to 30 months, to notify Fields of the mandatory portion of his sen tence, and for the proper imposition of post-release control.

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TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

Ian A. Richardson Markus L. Moll Kristie L. Gotwald Malcolm Fields Hon. Douglas M. Rastatter