[Cite as State v. McClellan , 2020-Ohio-5551.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals No. E-19-075 Appellee Trial Court No. 2019-CR-121

v. Michael McClellan, Jr. DECISION AND JUDGMENT Appellant Decided: December 4, 2020

* * * * * Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appelle e. John M. Felter, for appellant.

* * * * * ZMUDA, P.J. {¶ 1} Appellant, Michael McClellan, Jr., appeals the December 3, 2019 judgment of the Erie County Court of Common Pleas sentencing him to 30 m onths in prison following his conviction for operating a vehicle while intoxica ted in violation of R.C. 4511.19(A)(1) and (G)(1)(d). For the reasons that follow, we r everse the trial court’s judgment.2. I. Background {¶ 2} On May 8, 2019, appellant was indicted on one count of operatin g a vehicle

while under the influence of alcohol in violation of R.C. 4511. 19(A)(1)(a) and (G)(1)(d), a fourth-degree felony; and one count of failing to submit to a chemical test in violation of R.C. 4511.192(A), an unclassified misdemeanor. Appellant wa s arraigned on May 30, 2019. Appellant appeared at his arraignment with counsel and e ntered a not guilty plea to

both counts. {¶ 3} Following negotiations with the state, appellant appeared befor e the trial court on September 23, 2019 for a change of plea hearing. Purs uant to a plea agreement, appellant entered a guilty plea to the fourth-degree felony OVI charge and the state requested that the trial court dismiss the failure to submit to chemical testing charge. The trial court accepted appellant’s guilty plea and dismissed the second count as requested. The trial court ordered appellant to participate in a presenten cing investigation and set a sentencing for December 2, 2019. {¶ 4} At sentencing, the trial court imposed a mandatory 30-month pri son term for appellant’s felony OVI conviction. The trial court also impose d a mandatory $7,500 fine and ordered appellant to pay all court costs. Lastly, the tria l court imposed a lifetime suspension of appellant’s operator’s license. {¶ 5} The trial court memorialized appellant’s sentence in its Decemb er 3, 2019 judgment entry. Appellant timely appealed and assigns the foll owing error for our

review:3. The trial court abused its discretion by sentencing appellant t o 30 months in prison. II. Law and Analysis A. Felony sentences are reviewed pursuant to R.C. 2953.08(G) {¶ 6} Appellant’s assignment of error alleges the trial court’s impos ition of a 30- month prison term was an abuse of its discretion. Felony sente nces are not reviewed

under an abuse of discretion standard. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio1002, 59 N.E.3d 1231, ¶ 10. Rather, we review felony sentences under R.C. 2953.08(G)(2). State v. Goings , 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or vacate and remand a judgment only i f we clearly and convincingly find either of the following: “(a) the record doe s not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the R evised Code, whichever, if any, is relevant” or “(b) the sentence is otherwise contrary to law.” State v. Yeager , 6th Dist. Sandusky No. S-15-025, 2016-Ohio-4759, ¶ 7, citing R.C. 2 953.08(G)(2). Appellant’s argument alleges that the trial court was not permi tted to sentence him to a prison term for his first felony OVI conviction under R.C. 4511 .19 and 2929.13. Therefore, we review appellant’s sentence pursuant to R.C. 2953 .08(G)(2)(b) to determine whether it is contrary to law.4. B. Appellant’s sentence is contrary to law {¶ 7} Appellant was convicted of operating a vehicle while intoxicate d pursuant to R.C. 4511.19(A)(1)(a). Appellant was previously convicted of f ive misdemeanor OVI charges within 20 years prior to the conviction underlying this appeal. Because of his prior conduct, the current violation constitutes a fourth-degre e felony under R.C. 4511.19(G)(1)(b) which states “an offender who, within twenty y ears of the offense, previously has been convicted of or pleaded guilty to five or m ore violations of that nature is guilty of a felony of the fourth degree.” In his sol e assignment of error, appellant argues that because this is his first felony OVI conv iction that his sentence is contrary to law because he was “entitled to be sentenced local incarceration (sic) and was not eligible for a prison sentence.” {¶ 8} R.C. 4511.19(G)(1)(d) states that upon an offender’s fourth deg ree felony

OVI conviction: {¶ 9} The court shall sentence the offender to all of the following: (i) If the sentence is being imposed for a violation of divisio n (A)(1)(a), (b), (c), (d), (e), or (j) of this section, * * * in the discretion of the court , either a mandatory term of local incarceration of sixty consecutive days in accordance with division (G)(1) of section 2929.13 of the Revis ed Code or a mandatory prison term of sixty consecutive days in accordance with division (G)(2) of that section if the offender is not convicte d of and does not plead guilty to a [repeat offender specification establishe d under R.C.5. 2941.1413]. If the court imposes a mandatory term of local inca rceration, it may impose a jail term in addition to the sixty-day mandatory t erm, the cumulative total of the mandatory term and the jail term for th e offense shall not exceed one year, and, except as provided in division (A)(1) of section 2929.13 of the Revised Code, no prison term is authoriz ed for the offense. If the court imposes a mandatory prison term, notwith standing division (A)(4) of section 2929.14 of the Revised Code, it also may sentence the offender to a definite prison term that shall be n ot less than six months and not more than thirty months and the prison terms sha ll be imposed as described in division (G)(2) of section 2929.13 of t he Revised Code. If the court imposes a mandatory prison term or mandator y prison term and additional prison term, in addition to the term or ter ms so imposed, the court also may sentence the offender to a communit y control sanction for the offense, but the offender shall serve all of t he prison terms so imposed prior to serving the community control sanction. (Emphasis added.) The plain language of R.C. 4511.19(G)(1)(d)( i) grants the trial court the discretion to impose either a mandatory term of local incar ceration or a mandatory prison term on appellant following his conviction under R.C. 45 11.19(A)(1)(a). {¶ 10} R.C. 2929.13(G) likewise establishes the trial court’s discreti on to impose “a mandatory term of local incarceration or a mandatory prison term” for a fourth-degree felony OVI offense. (Emphasis added.) Notably absent from eit her sentencing statute is6. language supporting appellant’s suggestion that he was “entitle d” to be sentenced to local incarceration because this was his first felony OVI conviction. Therefore, the statutes permit a trial court to impose either a mandatory term of local incarceration or a mandatory prison term for a fourth-degree felony OVI conviction without regard to whether the conviction is appellant’s first felony. See State v. Rabe , 12th Dist. Clermont No. CA2013-04-027, 2013-Ohio-4867, ¶ 20; State v. Kennedy , 2d Dist. Champaign No. 2011-CA-3, 2011-Ohio-4291, ¶ 26-32. {¶ 11} Despite the plain language of the statutes, appellant argues th at trial courts are only permitted to impose a prison term under R.C. 4511.19(G )(1)(b) and 2929.13(G)(2) if the offender has served a term of local incarc eration for a previous felony OVI conviction. In support of his argument, appellant r elies on State v. Wilton , 133 Ohio App.3d 575, 729 N.E.2d 420 (6th Dist.1999), where we h eld that the imposition of local incarceration was required on an offender’s first felo ny OVI conviction. The holding in Wilton was based on a previous version of the statute, the language of which

warranted such a result. Id. at 577-578. The language requiring the imposition of local incarceration for a first time felony OVI conviction was elimin ated through subsequent

amendments to the statute. State v. Lowe , 7th Dist. Columbiana No. 08 CO 37, 2010-Ohio-2788, ¶ 39-51. Therefore, the authority appellant ci tes is inapplicable to this appeal. The current version of the statute does not preclude t he imposition of a prison term for appellant’s first felony conviction and the trial cour t’s decision to impose a prison term is not contrary to law.7. {¶ 12} Appellant’s argument regarding the trial court’s imposition of a prison term for a first time felony conviction is incorrect. Nevertheless, we find that appellant’s sentence is contrary to law pursuant to R.C. 2953.08(G)(2)(b). When a trial court chooses to impose a prison term for an offender’s conviction on a fourth-degree felony OVI, it must impose a mandatory prison term of 60 days. R.C. 4 511.19(G)(1)(d). After imposing the mandatory prison term, the statute also permits th e trial court to impose an additional prison term ranging from 6 to 30 months. R.C. 4511. 19(G)(1)(d). The additional term is a separate, non-mandatory prison term to be served after the 60-day mandatory term. State v. Cunningham , 2017-Ohio-377, 83 N.E.3d 328, ¶ 36-37 (7th Dist.). The duration of the additional term is limited in that it “shall be reduced by the sixty * * * days imposed upon the offender as the mandatory pri son term.” R.C. 2929.14(B)(4). The aggregate length of the mandatory prison te rm and the additional, non-mandatory term “shall equal a definite prison term in the r ange of six months to thirty months for a fourth degree felony OVI offense[.]” R.C. 2929.14(B)(4). {¶ 13} While the trial court was authorized to impose an aggregate 30- month prison term, only the first 60 days of that term were mandatory

. Cunningham at ¶ 36-37. The trial court exceeded its authority by identifying the addit ional, non-mandatory prison term as a mandatory term. See State v. Hoselton , 6th Dist. Lucas No. L-09-1150, 2011- Ohio-1396, ¶ 9-12 (holding that the imposition of a mandatory p rison term when the only term authorized by statute was non-mandatory was error); s ee also State v. Smaltz , 6th Dist. Ottawa No. OT-08-008, 2013-Ohio-5350, ¶ 10-11; State v. Burkhead , 12th Dist.8. Butler No. CA2014-02-028, 2015-Ohio-1085, ¶ 22-30; State v. Warren , 7th Dist. Mahoning No. 05 MA 91, 2006-Ohio-1281, ¶ 61. A trial court has “no inherent power to create sentences, and the only sentence that a trial judge may impose is that provided for by statute.” State v. Hitchcock , 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 215, ¶ 18, citing State v. Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10, 12. By imposing a mandatory prison term when no such ter m is authorized by statute, the trial court erred and appellant’s sentence is cont rary to law. Therefore, appellant’s sole assignment of error is well-taken.

III. Conclusion {¶ 14} We find appellant’s assignment of error well-taken. Pursuant t o R.C. 2953.08(G)(2), we vacate appellant’s sentence and remand this m atter for resentencing in accordance with this decision. The state is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment reversed and remanded.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.9. State v. McClellan C.A. No. E-19-075

Arlene Singer, J. _________________

______________ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.