[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 C ounty 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 t hat the trial court erred in2. calculating appellant’s maximum prison sentence and the judgmen t of the trial court is

therefore reversed. A. Facts and Procedural Background {¶ 2} On March 4, 2020, appellant was indicted on two counts of aggra vated 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 a rmed with a knife. After appellant was deemed competent to stand trial, he appeared befo re 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 throu gh discovery and motion practice. {¶ 3} Following successful plea negotiations, appellant appeared befo re 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 charge s 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 g uilty of the amended charges. The matter was then referred to the presentence depar tment 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 recommended3. concurrent prison sentences. Upon considering these statements , the trial court addressed appellant, indicating to him how serious the court viewed his c onduct giving rise to the robbery charges, stating: Mr. Gifford, on two separate occasions you walked in to a carry out, brandished a knife, and robbed the clerk of the money in the ca sh register. Twice. Days apart. These are very very serious crimes with lo ng lasting psychological impact on the victims. The underlying facts of t hese 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 princi ples and purposes of sentencing under R.C. 2929.11 and the seriousness a nd recidivism factors under R.C. 2929.12. Upon such consideration, the trial court o rdered appellant to serve an indefinite prison sentence with a stated minimum of four yea rs 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 it s 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 te rm 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 coun t 2 is 44. years. The Defendant’s maximum stated prison term as to count 2 is 6 years. The indefinite portion of the Defendant’s prison term i s 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, a ppellant filed a timely notice of appeal. B. Assignments of Error {¶ 7} On appeal, appellant assigns the following errors for our revie w: First Assignment of Error: The trial court erred in ordering

consecutive sentences. Second Assignment of Error: Appellant’s sentence to an indefini te

term under R.C. 2929.144 violates the constitutional doctrine o f the separation of powers. Third Assignment of Error: Appellant’s sentence to an indefinit e term under R.C. 2929.144 violates his right to due process unde r the Fifth

and Fourteenth Amendments to the United States Constitution. II. Analysis {¶ 8} In appellant’s assignments of error, he argues that the trial c ourt erroneously imposed consecutive sentences and that the indefinite sentencin g 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, mo dify, 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 fi ndings 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 Revi sed 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 wher e 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, prop erly 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 tha t the prison term imposed by the trial court exceeds the statutory range pro vided 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 fo r a felony elects or is required to impose a prison term on the off ender pursuant to this chapter, the court shall impose a prison term that shal l 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 i ndefinite 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. 2929.1 44(B), which provides, in relevant part: (B) The court imposing a prison term on an offender under divis ion (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 maximu m prison term that is part of the sentence in accordance with the follow ing:

* * * (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 s ection 2929.14 of the Revised Code for a qualifying felony of the firs t or second degree that are to be served consecutively and all of the defin ite terms of the felonies that are not qualifying felonies of the first or s econd degree that7. 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 fi nd that the trial court’s indefinite sentence of eight to twelve years is c ontrary 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 rang e set forth in R.C. 2929.14(A)(2)(a). However, the trial court’s maximum term of 1 2 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 maxi mum term by summing the stated minimum terms, which were four years on each offense her e. 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 w ould 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 ap pears from our examination of the record that the trial court mistakenly applied the two-y ear sentencing tail to each stated minimum term for each offense rather than adding it to t he 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 a pplied the indefinite sentencing parameters under R.C. 2929.144 and thus i mposed a sentence that is contrary to law, the trial court’s judgment is reversed, appell ant’s sentence is vacated, and we remand this matter to the trial court for resentencing consi stent 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 Cou rt of Common Pleas is reversed, and appellant’s sentence is hereby va cated. We remand this matter to the trial court for the purpose of resentencing appel lant in a manner consistent with R.C. 2929.144 as stated above. Costs of this appeal are a ssessed to the state under App.R. 24. A certified copy of this entry shall constitute the mandate pu rsuant 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 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/.