[Cite as State v. Alicea, 2018-Ohio-3531.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

ASHTABULA COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2017-A-0078

 - vs - : 

CARLOS ANTHONY ALICEA, : 

 Defendant-Appellant. : 

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 CR 

00014. 

Judgment: Reversed and remanded. 

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant 

Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 

44047 (For Plaintiff-Appellee). 

Marie Lane, Ashtabula County Public Defender, Inc., 4817 State Road, Suite #202, 

Ashtabula, OH 44004 (For Defendant-Appellant). 

THOMAS R. WRIGHT, P.J. 

{¶1} Appellant, Carlos Anthony Alicea, appeals his fifteen-month prison term on 

one count of attempted theft from a person in a protected class. He asserts that the trial 

court was statutorily required to impose community-control sanctions in lieu of prison. As 

the trial court failed to make a required finding, we reverse and remand. 

{¶2} Appellant was indicted on one count of theft from a person in a protected 
 2

class, a third-degree felony under R.C. 2913.02(A)(3). The charge was based on conduct 

in which appellant assisted his co-defendant in deceiving an elderly person to give them 

money that they used to purchase illegal drugs. 

{¶3} Appellant ultimately pleaded guilty to an amended count of attempted theft 

from a person in a protected class, a fourth-degree felony, and in return, the state agreed 

to recommend that a community-control sanction be imposed. The amended plea was 

accepted and appellant was found guilty. 

{¶4} During the plea, appellant informed the court that he was currently on 

probation for a prior driving under the influence conviction. 

{¶5} At sentencing, the state recommended imposition of a community-control 

sanction. The trial court nevertheless concluded that community control would be 

demeaning to the seriousness of the offense and imposed a fifteen-month prison term. 

{¶6} Appellant appeals raising one assignment for review: 

{¶7} “The trial court erroneously sentenced appellant to a prison term.” 

{¶8} Appellant argues that because he was convicted of a fourth-degree felony 

and satisfied all other requirements of R.C. 2929.13(B)(1)(a), the trial court was obligated 

to impose a community-control sanction. 

{¶9} R.C. 2929.13(B)(1)(a) provides that if an offender is convicted of a fourthdegree felony which is not a violent offense or is a qualifying assault offense, “the court 

shall sentence the offender to a community control sanction of at least one year’s 

duration” when the offender can also satisfy four additional requirements. Here, there is 

no dispute that appellant meets the remaining four requirements. 

{¶10} However, R.C. 2929.13(B)(1)(a) also states that its application is subject to 
 3

the exception set forth in R.C. 2929.13(B)(1)(b): 

{¶11} “The court has discretion to impose a prison term upon an offender who is 

convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense 

of violence or that is a qualifying assault offense if any of the following apply: 

{¶12} “* * * 

{¶13} “(xi) The offender committed the offense while under a community control 

sanction, while on probation, or while released from custody on a bond or personal 

recognizance.” 

{¶14} As noted above, during the plea hearing, appellant informed the court that 

he was “currently” on probation for a prior DUI offense, not that he committed the offense 

while under a community control sanction, while on probation, or while released from 

custody on a bond or personal recognizance. 

{¶15} Furthermore, prior to imposing the prison term, the trial court did not make 

a finding under R.C. 2929.13(B)(1)(a) or (b). R.C. 2953.08(G)(1) provides: 

{¶16} “If the sentencing court was required to make the findings required by 

division (B) * * * of section 2929.13 * * *, and if the sentencing court failed to state the 

required findings on the record, the court hearing an appeal under division (A), (B), or (C) 

of this section shall remand the case to the sentencing court and instruct the sentencing 

court to state, on the record, the required findings.” 

{¶17} In applying R.C. 2929.13(B)(1)(a) and (b), multiple appellate courts deem a 

specific finding unnecessary because R.C. 2929.13(B)(1)(a) and (b) do not expressly 

require a finding. See, e.g., State v. Henslee, 5th Dist. Muskingum No. CT2017-0009, 

2017-Ohio-5786; State v. Hamilton, 1st Dist. Hamilton No. C-140290, 2015-Ohio-334. 
 4

Read in isolation, none of the provisions set forth in division (B) of R.C. 2929.13 state that 

findings are required. However, when read in conjunction with R.C. 2953.08(G)(1), it is 

clear that findings are required. If we were to follow Henslee and Hamilton, the 

requirements of R.C. 2953.08(G)(1) would be rendered meaningless. 

{¶18} Since the trial court did not make required findings under R.C. 

2929.13(B)(1)(a) and (b), appellant’s sole assignment has merit. The judgment of the 

Ashtabula County Court of Common Pleas is reversed, and the case is hereby remanded 

for resentencing consistent with R.C. 2953.08(G)(1). 

CYNTHIA WESTCOTT RICE, J., concurs 

COLLEEN MARY O’TOOLE, J., concurs in judgment only.