[Cite as State v. Henson, 2012-Ohio-2894.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsRYAN M. HENSON 

 Defendant-Appellant 

JUDGES: 

Hon. Patricia A. Delaney, P. J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 11 CAA 11 0112 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 11 CR I 03 0127 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: June 26, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAROL O'BRIEN DAVID H. BIRCH 

PROSECUTING ATTORNEY 286 South Liberty Street 

ERIC PENKAL Powell, Ohio 43065 

ASSISTANT PROSECUTOR 

140 North Sandusky Street, 3rd Floor 

Delaware, Ohio 43015 
Delaware County, Case No. 11 CAA 11 0112 2

Wise, J. 

{¶1} Defendant-Appellant Ryan Henson appeals his sentence entered in the 

Delaware County Common Pleas Court following a guilty plea on two counts of theft and 

two counts of forgery.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} Appellant Ryan M. Henson, while working in the commercial banking 

business, collected deposits from clients who hoped to secure loans. When the loans 

fell through, he did not return the deposits to the clients, instead keeping said deposits 

for his own personal use. Appellant also forged letters of intent to entice the deposits 

paid to him. 

{¶4} On March 4, 2011, Appellant was indicted on three counts of forgery 

under R.C. §2913.31 and three counts of theft under R.C. §2913.02. The six separate 

counts included three distinct victims.

{¶5} On September 19, 2011, Appellant entered a plea of guilty on one count of 

theft in violation of R.C. §2913.02(A)(3), a felony of the fifth degree, one count of theft in 

violation of R.C. §2913.02(A)(2), a felony of the fourth degree and two counts of forgery 

in violation of R.C. §2913.31(A)(3), felonies of the fourth degree. 

{¶6} On October 31, 2011, the trial court sentenced Appellant to twelve months 

on each count. The sentences were imposed to run consecutive, except count two 

which was to run concurrent, for an aggregate sentence of thirty-six months in prison. 
Delaware County, Case No. 11 CAA 11 0112 3

{¶7} Appellant now appeals, arguing that the trial court erred in its sentencing 

discretion and that Appellant was entitled to community control under the recently 

enacted changes in R.C. Chapter 2929 under House Bill 86.

ASSIGNMENT OF ERROR

{¶8} “I. THE COURT ERRED BY SENTENCING THE APPELLANT TO A 

PRISON SENTENCE IN CONTRAVENTION OF THE SENTENCING STATUTES.” 

 I. 

{¶9} In his sole Assignment of Error, Appellant claims that the trial court erred 

in imposing a prison term in this matter. We agree. 

{¶10} More specifically, Appellant claims that under the current version of R.C. 

2929.13, the trial court was required to impose a sentence of community control. 

{¶11} Upon review, we find that with regard to fourth and fifth degree felonies, 

R.C. §2929.13, effective date September 30, 2011, now provides: 

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an 

offender is convicted of or pleads guilty to a felony of the fourth or fifth 

degree that is not an offense of violence, the court shall sentence the 

offender to a community control sanction of at least one year's duration if 

all of the following apply: 

(i) The offender previously has not been convicted of or 

pleaded guilty to a felony offense or to an offense of violence 

that is a misdemeanor and that the offender committed 

within two years prior to the offense for which sentence is 

being imposed. 
Delaware County, Case No. 11 CAA 11 0112 4

(ii) The most serious charge against the offender at the time 

of sentencing is a felony of the fourth or fifth degree. 

(iii) If the court made a request of the department of 

rehabilitation and correction pursuant to division (B)(1)(c) of 

this section, the department, within the forty-five-day period 

specified in that division, provided the court with the names 

of, contact information for, and program details of one or 

more community control sanctions of at least one year's 

duration that are available for persons sentenced by the 

court. 

(b) 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 if any of the following apply: 

(i) The offender committed the offense while having a firearm 

on or about the offender's person or under the offender's 

control. 

(ii) The offender caused physical harm to another person 

while committing the offense. 

(iii) The offender violated a term of the conditions of bond as 

set by the court. 

(iv) The court made a request of the department of 

rehabilitation and correction pursuant to division (B)(1)(c) of 

this section, and the department, within the forty-five-day 
Delaware County, Case No. 11 CAA 11 0112 5

period specified in that division, did not provide the court with 

the name of, contact information for, and program details of 

any community control sanction of at least one year's 

duration that is available for persons sentenced by the court. 

(c) If a court that is sentencing 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 believes that no community control sanctions are available for its 

use that, if imposed on the offender, will adequately fulfill the overriding 

principles and purposes of sentencing, the court shall contact the 

department of rehabilitation and correction and ask the department to 

provide the court with the names of, contact information for, and program 

details of one or more community control sanctions of at least one year's 

duration that are available for persons sentenced by the court. Not later 

than forty-five days after receipt of a request from a court under this 

division, the department shall provide the court with the names of, contact 

information for, and program details of one or more community control 

sanctions of at least one year's duration that are available for persons 

sentenced by the court, if any. Upon making a request under this division 

that relates to a particular offender, a court shall defer sentencing of that 

offender until it receives from the department the names of, contact 

information for, and program details of one or more community control 

sanctions of at least one year's duration that are available for persons 

sentenced by the court or for forty-five days, whichever is the earlier. 
Delaware County, Case No. 11 CAA 11 0112 6

If the department provides the court with the names of, contact information 

for, and program details of one or more community control sanctions of at 

least one year's duration that are available for persons sentenced by the 

court within the forty-five-day period specified in this division, the court 

shall impose upon the offender a community control sanction under 

division (B)(1)(a) of this section, subject to divisions (B)(1)(b)(i) and (ii) of 

this section. If the department does not provide the court with the names 

of, contact information for, and program details of one or more community 

control sanctions of at least one year's duration that are available for 

persons sentenced by the court within the forty-five-day period specified in 

this division, the court may impose upon the offender a prison term under 

division (B)(1)(b)(iii) of this section. 

(d) A sentencing court may impose an additional penalty under division (B) 

of section 2929.15 of the Revised Code upon an offender sentenced to a 

community control sanction under division (B)(1)(a) of this section if the 

offender violates the conditions of the community control sanction, violates 

a law, or leaves the state without the permission of the court or the 

offender's probation officer. 

{¶12} Upon review, we find that pursuant to the above statute, the trial court was 

required to impose a sentence of community control. 

{¶13} In its brief, the State of Ohio argues that the R.C. 2929.13B)(1)(c) is 

unconstitutional because it removes any judicial discretion in sentencing a non-violent, 

first-time felony offender to prison. 
Delaware County, Case No. 11 CAA 11 0112 7

{¶14} However, upon review, we find that the issue of constitutionality was not 

raised in the trial court. The failure to raise at the trial level the issue of the 

constitutionality of a statute or its application which issue is apparent at the time of trial, 

constitutes a waiver of such issue and a deviation from this state's orderly procedure, 

and therefore, need not be heard for the first time on appeal. In re N. W., 10th Dist. No. 

07–AP590, 2008–Ohio–297, ¶ 37; In re Dailey, 10th Dist. No. 04AP–1346, 2005–Ohio–

2196; In re Andy–Jones, 10th Dist. No. 03AP–1167, 2004–Ohio–3312 

{¶15} We expressly decline to address Appellee’s arguments regarding the 

constitutionality of said statute as the trial court has not considered and decided those 

issues, and we will not determine them in the first instance on appeal. 

{¶16} We therefore reverse and remand this matter to the trial court for resentencing and/or consideration of the constitutional issues raised by the State of Ohio 

in this appeal. 

 

 
Delaware County, Case No. 11 CAA 11 0112 8

{¶17} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Delaware County, Ohio, is reversed and remanded to the trial court for proceedings 

consistent with the law and this opinion. 

By: Wise, J. 

Delaney, P. J., and 

Edwards, J., concur. 

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 JUDGES 

JWW/d 0613 
Delaware County, Case No. 11 CAA 11 0112 9

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

RYAN M. HENSON : 

 : 

 Defendant-Appellant : Case No. 11 CAA 11 0112 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Delaware County, Ohio, is reversed and 

remanded for further proceedings consistent with this opinion. 

 Costs assessed to Appellee. 

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 JUDGES