[Cite as State v. Gifford, 2021-Ohio-2967.]

`1 

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

LUCAS COUNTY 

State of Ohio Court of Appeals No. L-20-1152 

 

 Appellee Trial Court No. CR0202001397 

 

v. 

 

Charles Edward Gifford DECISION AND JUDGMENT

Appellant Decided: August 27, 2021 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Lara J. Rump, Assistant Prosecuting Attorney, for appellee. 

 Michael H. Stahl, for appellant. 

* * * * * 

OSOWIK, J. 

I. Introduction 

{¶ 1} Appellant, Charles Gifford, appeals the judgment of the Lucas County Court 

of Common Pleas, sentencing him to an indefinite prison term of eight to ten years after 

he pled guilty to two counts of robbery. Upon review, we find that the trial court erred in 
2. 

calculating appellant’s maximum prison sentence and the judgment of the trial court is 

therefore reversed. 

A. Facts and Procedural Background 

{¶ 2} On March 4, 2020, appellant was indicted on two counts of aggravated 

robbery in violation of R.C. 2911.01(A)(1) and (C), felonies of the first degree. These 

charges stemmed from incidents that occurred on February 12 and 14, 2020, during 

which appellant entered a carryout and robbed the clerk while armed with a knife. After 

appellant was deemed competent to stand trial, he appeared before the trial court for 

arraignment on April 21, 2020, at which time he entered a plea of not guilty to the 

aforementioned charges. Thereafter, the matter proceeded through discovery and motion 

practice. 

{¶ 3} Following successful plea negotiations, appellant appeared before the trial 

court for a change of plea hearing on July 28, 2020. Pursuant to an agreement with the 

state, appellant entered a plea of guilty to two amended charges of robbery in violation of 

R.C. 2911.02(A)(1) and (B), felonies of the second degree. The trial court conducted a 

Crim.R. 11 colloquy, accepted appellant’s plea, and found him guilty of the amended 

charges. The matter was then referred to the presentence department for preparation of a 

presentence investigation report. 

{¶ 4} Appellant’s sentencing hearing was subsequently held on August 11, 2020. 

During the hearing, appellant’s defense counsel made statements in mitigation and 

appellant expressed remorse for his actions. For its part, the state recommended 
3. 

concurrent prison sentences. Upon considering these statements, the trial court addressed 

appellant, indicating to him how serious the court viewed his conduct giving rise to the 

robbery charges, stating: 

Mr. Gifford, on two separate occasions you walked in to a carryout, 

brandished a knife, and robbed the clerk of the money in the cash register. 

Twice. Days apart. These are very very serious crimes with long lasting 

psychological impact on the victims. The underlying facts of these crimes 

coupled with your history of drug and alcohol abuse and overall instability 

in the community paint a picture that is hard for this court to ignore. 

{¶ 5} The trial court went on to note its consideration of the principles and 

purposes of sentencing under R.C. 2929.11 and the seriousness and recidivism factors 

under R.C. 2929.12. Upon such consideration, the trial court ordered appellant to serve 

an indefinite prison sentence with a stated minimum of four years in prison and a 

maximum term of six years on each robbery offense, to be served consecutively, “for a 

total stated maximum prison term of 12 years.” Likewise, in its sentencing entry, the trial 

court ordered appellant to 

serve a term of 4 years in prison as to count 1 and a term of 4 years in 

prison as to count 2. The Defendant’s minimum stated prison term as to 

count 1 is 4 years. The Defendant’s maximum stated prison term as to 

count 1 is 6 years. The indefinite portion of the Defendant’s prison term is 

2 years. The Defendant’s minimum stated prison term as to count 2 is 4 
4. 

years. The Defendant’s maximum stated prison term as to count 2 is 6 

years. The indefinite portion of the Defendant’s prison term is 2 years. 

The sentences imposed in count 1 and count 2 are ordered served

consecutive one to another. 

{¶ 6} Following the trial court’s issuance of its sentencing entry, appellant filed a 

timely notice of appeal. 

B. Assignments of Error 

{¶ 7} On appeal, appellant assigns the following errors for our review: 

First Assignment of Error: The trial court erred in ordering 

consecutive sentences. 

Second Assignment of Error: Appellant’s sentence to an indefinite 

term under R.C. 2929.144 violates the constitutional doctrine of the 

separation of powers. 

Third Assignment of Error: Appellant’s sentence to an indefinite 

term under R.C. 2929.144 violates his right to due process under the Fifth 

and Fourteenth Amendments to the United States Constitution. 

II. Analysis 

{¶ 8} In appellant’s assignments of error, he argues that the trial court erroneously 

imposed consecutive sentences and that the indefinite sentencing scheme set forth in R.C. 

2929.144 is unconstitutional. 
5. 

{¶ 9} Our review of felony sentences is governed by R.C. 2953.08(G)(2). Under 

R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate and 

remand a sentence only if the record demonstrates, clearly and convincingly, either of the 

following: 

(a) That the record does 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 Revised Code, 

whichever, if any, is relevant; or 

(b) That the sentence is otherwise contrary to law. 

{¶ 10} A sentence is not clearly and convincingly contrary to law where the trial 

court has considered the purposes and principles of sentencing under R.C. 2929.11 and 

the seriousness and recidivism factors under R.C. 2929.12, properly applied postrelease 

control, and imposed a sentence within the statutory range. State v. Tammerine, 6th Dist. 

Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15-16. 

{¶ 11} Having examined the record in this case, we sua sponte find that the prison 

term imposed by the trial court exceeds the statutory range provided under R.C. 2929.14 

and 2929.144. R.C. 2929.14 provides, in relevant part: 

(A) * * * if the court imposing a sentence upon an offender for a 

felony elects or is required to impose a prison term on the offender pursuant 

to this chapter, the court shall impose a prison term that shall be one of the 

following: 
6. 

* * * 

(2)(a) For a felony of the second degree committed on or after the 

effective date of this amendment, the prison term shall be an indefinite 

prison term with a stated minimum term selected by the court of two, three, 

four, five, six, seven, or eight years and a maximum term that is determined 

pursuant to section 2929.144 of the Revised Code * * *. 

{¶ 12} The “maximum term” referenced above is set forth in R.C. 2929.144(B), 

which provides, in relevant part: 

(B) The court imposing a prison term on an offender under division 

(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying 

felony of the first or second degree shall determine the maximum prison 

term that is part of the sentence in accordance with the following: 

* * * 

(2) If the offender is being sentenced for more than one felony, if 

one or more of the felonies is a qualifying felony of the first or second 

degree, and if the court orders that some or all of the prison terms imposed 

are to be served consecutively, the court shall add all of the minimum terms 

imposed on the offender under division (A)(1)(a) or (2)(a) of section 

2929.14 of the Revised Code for a qualifying felony of the first or second 

degree that are to be served consecutively and all of the definite terms of 

the felonies that are not qualifying felonies of the first or second degree that 
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are to be served consecutively, and the maximum term shall be equal to the 

total of those terms so added by the court plus fifty per cent of the longest 

minimum term or definite term for the most serious felony being sentenced. 

(Emphasis added.) 

{¶ 13} Applying these statutory sections to the case sub judice, we find that the 

trial court’s indefinite sentence of eight to twelve years is contrary to law. We recognize 

that the trial court’s stated minimum prison term of four years for each of the two felonies 

to which appellant pleaded guilty was within the statutory range set forth in R.C. 

2929.14(A)(2)(a). However, the trial court’s maximum term of 12 years is inconsistent 

with the formula set forth in R.C. 2929.144(B)(2). 

{¶ 14} Under that section, the trial court, having imposed consecutive sentences 

for two qualifying felonies, was required to calculate the maximum term by summing the 

stated minimum terms, which were four years on each offense here. Next, the trial court 

was required to add to that sum an amount of time equal to half of the longest minimum 

term for the most serious felony being sentenced. Because the stated minimum term for 

each offense was the same at four years, this additional time would equate to two years. 

Therefore, appellant’s overall indefinite prison sentence under R.C. 2929.144 should 

have been eight to ten years, not eight to twelve years. It appears from our examination 

of the record that the trial court mistakenly applied the two-year sentencing tail to each 

stated minimum term for each offense rather than adding it to the combined stated 

minimum. Under R.C. 2929.144(B)(2), this is contrary to law. 
8. 

{¶ 15} In light of our determination that the trial court improperly applied the 

indefinite sentencing parameters under R.C. 2929.144 and thus imposed a sentence that is 

contrary to law, the trial court’s judgment is reversed, appellant’s sentence is vacated, and 

we remand this matter to the trial court for resentencing consistent with this decision. 

Having reversed the trial court’s judgment on this basis, we do not reach the merits of 

appellant’s assignments of error. 

III. Conclusion 

{¶ 16} In light of the foregoing, the judgment of the Lucas County Court of 

Common Pleas is reversed, and appellant’s sentence is hereby vacated. We remand this 

matter to the trial court for the purpose of resentencing appellant in a manner consistent 

with R.C. 2929.144 as stated above. Costs of this appeal are assessed to the state under 

App.R. 24. 

 A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Thomas J. Osowik, J. ____________________________ 

 JUDGE 

Gene A. Zmuda, P.J. 

____________________________ 

Myron C. Duhart, J. JUDGE 

CONCUR. 

____________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.