[Cite as State v. Rinehart , 2020-Ohio-2796.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsDEVIN RINEHART Defendant-Appellant JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. Case No. 19 CA 0096

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Comm on Pleas, Case No. 18 CR 0884

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: May 1, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant WILLIAM C. HAYES JAMES A. ANZELMO PROSECUTING ATTORNEY ANZELMO LAW PAULA M. SAWYERS 446 Howland Avenue ASSISTANT PROSECUTOR Gahanna, Ohio 43230 20 South Second Street, Fourth Floor Newark, Ohio 43055Licking County, Case No. 19 CA 0096 2
Wise, J. {¶1} Defendant-Appellant Devin Rinehart appeals his conviction and s entence entered in the Licking County Court of Common Pleas on one coun t of felonious assault with a firearm specification. {¶2} Plaintiff-Appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶3} The relevant facts and procedural history are as follows: {¶4} On August 20, 2019, Defendant-Appellant, Devin Rinehart, pleade d guilty to one count of felonious assault, a second degree felony, in v iolation of R.C. §2903.11, with a firearm specification. (Plea T. at 18). The charges aros e from Appellant firing a gun while he was driving. (Plea T. at 13). The gunshot struck Jewel l Scott. (Plea T. at 10). {¶5} The defense and prosecution jointly recommended a five (5) year prison sentence. (Sent. T. at 4). Appellant's trial counsel noted that Appellant did not expect to cause physical harm to anyone when he fired his gun. (Sent. T. at 7). Trial counsel noted that Scott was injured when the bullet ricochet into her home a nd struck her, even though Appellant was not aiming to shoot her. (Sent. T. at 7). Trial c ounsel also noted that Appellant accepted responsibility for his actions by turning hi mself in to the police. (Sent. T. at 7). Trial counsel also indicated that Appellant is remors eful. (Sent. T. at 8). Lastly, trial counsel noted that Appellant suffers from many mental hea lth illnesses, including Asperger's Syndrome, bipolar disorder, and anxiety. (Sent. T. a t 8). {¶6} On August 29, 2019, at the sentencing hearing in this matter, t he trial court rejected the jointly recommended sentence and imposed a five (5 ) year mandatory sentence on the Felonious Assault, the three (3) year firearm s pecification, and, as theLicking County, Case No. 19 CA 0096 3
Appellant was on post-release control, imposed an additional th ree (3) years on the postrelease control Appellant was currently under, all to be run co nsecutively to each other, for a total of eleven (11) years in prison. (Sent. T. at 15-16) . The trial court found that consecutive sentences were necessary to protect the public, pun ish Appellant, and not disproportionate to the crime committed. (Sent. T. at 16). Addi tionally, the trial court indicated that such consecutive sentences were mandated by stat ute, based upon the nature of the firearm specification and post-release control ti me. Id . The trial court also ordered Appellant to serve five (5) years mandatory post releas e control on this case. Id. {¶7} Appellant now appeals, raising the following assignments of err or for review: ASSIGNMENTS OF ERROR {¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ACCEPTING RINEHART'S JOINTLY RECOMMENDED SENTENCE. {¶9} “II. THE TRIAL COURT ERRED BY ORDERING RINEHART TO SERVE FIVE YEARS MANDATORY POST-RELEASE CONTROL.”
I. {¶10} In his first assignment of error, Appellant argues that the tri al court erred in not accepting the jointly recommended sentence. We disagree. {¶11} Appellant contends the trial court erred when it deviated from the jointly recommended sentence. However, this Court has previously held t hat a trial court is not bound by a recommendation proffered by the State. State v. Hartrum, 5th Dist. Licking No.2014 CA 00106, 2015–Ohio–3333, citing State v. Kitzler, 3rd Dist. Wyandot No. 16– 02–06, 2002–Ohio–5253. “A trial court does not err by imposing a sentence greater than that recommended by the State when the trial court sufficiently explains to the defendantLicking County, Case No. 19 CA 0096 4
the potential incarceration periods and sentencing ranges which may be imposed upon conviction.” State v. Bailey, 5th Dist. Knox No. 05–CA–13, 2005–Ohio–5329. {¶12} This Court has further held that a trial court is not bound by a plea agreement unless there has been active participation by the tri al court in the agreement. State v. Hartrum , 5th Dist. Licking No. 2014 CA 00106, 2015–Ohio–3333. {¶13} Upon review, we find nothing in the record to suggest the court was an active participant in the plea agreement. Prior to accepting th e plea, the trial court advised Appellant that the maximum prison sentence he could face would be eleven (11) years on the single remaining count of the indictment. (Plea T. at 15 ). Appellant responded he understood. The court also advised Appellant that the indictmen t included a firearm specification which required a mandatory prison sentence. (Plea T. at 16). Appellant responded he understood. Additionally, the court notified Appel lant that because he was on parole, he could be sentenced to additional prison time on t hat post-release control. (Plea T. at 16-17). Again, Appellant responded he understood. {¶14} Appellant pleaded to and was convicted of felonious assault, a seconddegree felony. R.C. §2929.14(A)(2) provides that “[f]or a felon y of the second degree, the prison term shall be two, three, four, five, six, seven, or eig ht years.” Thus, Appellant's five-year sentence is within the statutorily-permissible range. {¶15} The trial court, in imposing sentence, considered the following factors: Appellant has a past criminal record; Appellant has not respond ed favorably to sanctions in the past; Appellant was on post-release control at the time he committed this crime; and, the victim suffered serious physical and psychological har m.Licking County, Case No. 19 CA 0096 5
{¶16} Because the trial court did not participate actively in the ple a agreement and informed Appellant he could receive a greater sentence than the sentence reflected in the plea form, we find the trial court was free to impose a sentenc e greater than the sentence recommended by the prosecutor. Appellant has not demonstrated e rror in the trial court's decision to reject the recommended sentence. State v. McGuire , 5th Dist. Licking No. 2019 CA 00012, 2019-Ohio-5432, ¶¶ 8-10 {¶17} Appellant’s first assignment of error is overruled.
II. {¶18} In his second assignment of error, Appellant argues the trial c ourt erred in ordering him to serve five years mandatory post-release control . We agree. {¶19} Initially we note that the State of Ohio concedes that the tria l court improperly imposed a five year period of post-release control. {¶20} Appellant herein was convicted of felonious assault, a second-d egree felony. For a felony of the second degree, R.C. §2967.28(B)(2) provides for a mandatory three-year period of post-release control. However, the trial c ourt in this case improperly imposed a mandatory five-year period of post-release control. ( Sent. T. at 16). {¶21} It is well established that when a judge fails to impose the re quired postrelease control as part of a defendant's sentence, “that part of the sentence is void and must be set aside.” (Emphasis sic.) State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26; see also State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7. The improper post-release control sanction “ may be reviewed at any time, on direct appeal or by collateral attack.” Fischer at ¶ 27.Licking County, Case No. 19 CA 0096 6
{¶22} It is also well established that when post-release control is r equired but not properly imposed, the trial court must conduct a limited resent encing hearing to properly impose post-release control. See Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at paragraph two of the syllabus. (“The new sentenc ing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of post-release control.”). State v. Hibbler, 2d Dist. Clark No. 2019-CA-19, 2019-Ohio-3689, ¶ 12, 19. {¶23} We therefore find that the trial court erred in imposing a mand atory five year period of post-release control in this case. {¶24} Appellant's second assignment of error is sustained. {¶25} The trial court's judgment is reversed with respect to the impo sition of postrelease control, and the matter is remanded for resentencing to the appropriate three years of post-release control. In all other respects, the judgm ent of the trial court is affirmed.

By: Wise, J. Gwin, P. J., and Delaney, J., concur. JWW/d 0428