[Cite as State v. Williams , 2020-Ohio-6885.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellant

v. JAMES WILLIAMS Appellee C.A. No. 19CA011568

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 04CR065188

DECISION AND JOURNAL ENTRY Dated: December 28, 2020

HENSAL, Judge. {¶1} The State of Ohio appeals an order of the Lorain County Court o f Common Pleas that granted judicial release t o James Williams. For the follo wing reasons, this Court reverses.

I. {¶2} Following a trial to the bench, the trial court found Mr. Willi ams guilty of two counts of possession of marijuana, two counts of possession of cocaine, one count of trafficking marijuana, and one count of trafficking in cocaine. One of the possession of cocaine counts and the trafficking in cocaine count had major drug offender specif ications. The court sentenced Mr. Williams to a total of 12 years imprisonment. He appealed, but this Court determined that the sentencing entry was not a final appealable order. Following a mendments to the sentencing entry, Mr. Williams appealed again, and t his Court affirmed his convic tions and sentence.2

{¶3} After serving more than 10 years of his sentence, Mr. Williams filed a motion for judicial release. Following a hearing on the motion, the trial court granted it. The State has appealed, assigning two errors.

II.

THE TRIAL COURT ERRED BY GRANTING WILLIAMS’ MOTION FOR JUDICIAL RELEASE AS DEFENDANT IS NOT AN ELIGIBLE OFFENDER AS DEFINED BY R.C. §2929.20. {¶4} The State argues that Mr. Williams was not eligible for judicia l release because his entire 12-year sentences for the trafficking in cocaine offense and one of the possession of cocaine offenses are mandatory. Revis ed Code Section 2929.20(C) provid es that “[a]n eligible offender may file a motion for judicial r elease with the sentencing cour t * * *[.]” An eligible offender is “any person who, on or after April 7, 2009, is serving a stated prison term that includes one or more nonmandatory prison ter ms.” R.C. 2929.20(A)(1)(a). {¶5} For one of the possession of marijuana counts, the trial court sentenced Mr. Williams to one year of imprisonment. For the other count, it did not impose a sentence. For one of the possession of cocaine count s and the trafficking in mari juana count, it also sentenced Mr. Williams to one year. For the possession of cocaine count that had the major drug offender specification, however, it sentenced him to 10 years for the of fense and two years on the specification. Identically, for the trafficking in cocaine off ense, it sentenced Mr. Williams to ten years for the offense and two years on the specification. The court ordered all of the one-year sentences to run concurrent with each other and with the longer sentences. It ordered the 10-year

sentences to run concurrent with t he other. It ordered the sen tences for the specifications to run concurrent with each other, but consecutive to the 10-year sent ences, resulting in an aggregate3

sentence of 12 years. The court’s sentencing entry included th e direction that the “sentence imposed [on the two offenses wit h the specifications] are manda tory.” {¶6} At the time of Mr. Williams’s offenses, the drug trafficking st atute, Section 2925.03(C)(4)(g), provided that, “[i]f the amount of the drug i nvolved * * * exceeds one thousand grams of cocaine[,] * * * the c ourt shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree and may impose an additional mandatory prison term prescribed for a major drug offender * * *.” The drug pos session statute, Section 2925.11(C)(4)(f), contained similar language regarding Mr. Will iams’s offense under that section. At the time of the offenses, the maximum prison term for a felo ny of the first degree was 10 years. The trial court, therefore, was required to impose a mandatory 10-year sentence for Mr. Williams’s trafficking and possession of cocaine offenses. The trial cour t also had discretion to “impose an additional mandatory prison term ” because Mr. Williams was a ma jor drug offender. It chose to impose a two-year term for both offenses. Under the plain lang uage of Section 2925.03(C)(4)(g), the additional two-year terms were also mandatory. The trial c ourt’s sentencing entry confirms the mandatory nature of those sentences, providing that Mr. Wil liams’ sentences for the two counts, which included both the p rison term imposed for the off ense itself and the additional prison term imposed for the speci fication, “are mandatory.” {¶7} Although Mr. Williams’s one-year s entences were not mandatory, they had already been served by the time Mr. Williams moved for judicial release . Accordingly, upon review of the record, we conclude that Mr. Williams was not an eligible o ffender under Section 2929.20(A)(1)(a) because at the time that he filed his motion f or judicial release he was not serving a stated prison term that incl uded one or more nonmandatory pri son terms. The trial court,4

therefore, incorrectly granted Mr. Williams judicial release. The State’s first assignment of error

is sustained.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING WILLIAMS’ MOTION FOR JUDICIAL RELEASE AS IT FAILED TO MAKE THE NECESSARY STATUTORY FINDINGS SET FORTH IN R.C. §2929.20(J). {¶8} The State also argues that the trial court failed to make the f indings required under Section 2929.20(J)(1) before granting Mr. Williams’s motion for judicial release. In light of this Court’s resolution of the State’s first assignment of error, we conclude that this issue is moot. We, therefore, decline to addr ess it. App.R. 11(A)(1)(c).

III. {¶9} The State’s first assignment of error is sustained. Its second assignment of error is moot. The judgment of the Lora in County Court of Common Pleas is reversed, and this matter is remanded for proceedings in accordance with this decision. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to5

mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

SCHAFER, J. CONCURS. CARR, P. J. DISSENTING. {¶10} I respectfully dissent as I disagree with the majority’s conclu sion that the trial court imposed mandatory sentences on t he major drug offender specific ations in this case. {¶11} Under R.C. 2929.20(A)(1)(a), an “‘eligible offender’” for the p urposes of judicial release is “any person who, on or after April 7, 2009, is servi ng a stated prison term that includes one or more nonmandatory prison terms.” As noted by the majori ty, former R.C. 2925.03(C)(4)(g) provided that “[i]f the amount of the drug involved * * * excee ds one thousand grams of cocaine[,] * * * the court shall impose as a mandatory prison term the max imum prison term prescribed for a felony of the first degree and may impose an additional manda tory prison term prescribed for a major drug offender * * *.” Former R.C. 2925.11(C)(4)(f) conta ined similar language. In my view, there are three ways to interpret the aforementioned stat utory language regarding the trial court’s discretion to impose “an additional mandatory prison te rm” for the major drug offender specification.6

{¶12} One way is as the majority does. The majority has interpreted t he statute in such a way that any sentence imposed by the trial court on a major dru g offender specification is automatically a mandatory sentence regardless of what the sente ncing court intended. {¶13} A second way of looking at the statute is that if the trial cou rt elects to impose sentence on a major drug offender specification, which is discr etionary, then the judge may impose either a mandatory or nonmandatory sentence. The statute merel y gives the judge the authority to impose additional mandatory time on the specification if warran ted. {¶14} Yet a third interpretation would provide that the trial court h as discretion solely to impose an additional mandatory sentence on the major drug offen der specification, meaning that the imposition of a nonmandatory sen tence would run afoul of th e statute and render the sentence

void. {¶15} My reading of the August 17, 2009 sentencing entry in this matt er indicates that while the trial court specified that Williams’ ten-year sentenc es for trafficking in cocaine and possession of cocaine were mandat ory, it did not designate the specifications attached to those sentences as mandatory. At the hearing on Williams’ motion for judicial release, the trial court rejected the State’s contention that the entirety of Williams’ 12-year sentence was mandatory. While the trial court acknowledged that it imposed a mandatory fine, it stated that it did “not impose a mandatory prison term[]” with respect to the specifica tions. Because I disagree with the majority’s conclusion that any sentence imposed on the specific ations was automatically mandatory by operation of law, I respectfully dissent. I would hold that the trial court exercised its discretion to impose a nonmandatory sentence on the major d rug offender specifications, making Williams an eligible offender for judicial release pursu ant to R.C. 2929.20(A)(1)(a). {¶16} I am mindful of the rule of lenity in reaching this conclusion.7

With respect to criminal statutes * * * [e]ven if there were an ambiguity, meaning two reasonable ways of reading the statute, R.C. 2901.04 provid es that we must read the language of the relevant statute not in favor of the g overnment, but in favor of the accused. This rule of len ity, as codified, states that ‘ [e]xcept as otherwise provided in division (C) or (D) of this section, sections of th e Revised Code defining offenses or penalties shall be strictly construed agai nst the state, and liberally construed in favor of the accused.’ R.C. 2901.04(A). In other words, penal statutes may not be extended b y implication to cases not fallin g within their terms.

State v. White , 132 Ohio St.3d 344, 2012-Ohio-2583, ¶ 81 (Lanzinger, J., diss enting). {¶17} The trial court here imposed a sentence with the intent of maki ng Williams eligible for judicial release after ten years. After serving more than 10 years in prison, and exhibiting good behavior during that time, Williams moved for judicial release. The trial court granted his motion

on the basis that it never intende d for the final two years of his twelve-year sentence to be mandatory. Under the current v ersion of R.C. 2925.03(C)(4)(g), the provision allowing for an additional mandatory prison term for major drug offenders has b een eliminated, meaning that

Williams would not have received mo re than a ten-year mandatory sentence under the current law. In light of the unique procedural facts in this case, I would a ffirm the trial court’s judgment and spare Williams the injustice of being sent back to prison after having served more than ten years.

APPEARANCES: DENNIS P. WILL, Prosecuting Attorney, and PATRICK M. HAKOS, JR. , Assistant Prosecuting Attorney, for Appellant. JAMES WILLIAMS, pro se, Appellee.