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State v. Fisher

Court of Appeals of Ohio, Tenth District

September 19, 2013

State of Ohio, Plaintiff-Appellant,
v.
Daniel J. Fisher, Defendant-Appellee.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 12CR-3224

Ron O'Brien, Prosecuting Attorney, Valerie B. Swanson and Michael P. Walton, for appellant.

R. William Meeks Co., LPA, and David H. Thomas, for appellee.

DECISION

T. BRYANT, J.

(¶ 1} Plaintiff-appellant, State of Ohio, appeals from a judgment entered by the Franklin County Court of Common Pleas placing defendant-appellee, Daniel J. Fisher, on community control. Because the trial court did not make the findings required to impose that sentence, we reverse the judgment and remand the cause for resentencing.

I. BACKGROUND

(¶ 2} In July 2012, a Franklin County Grand Jury indicted defendant on one count of felonious assault, a felony of the second degree. Defendant originally entered a plea of not guilty, but later withdrew it and entered a guilty plea to the charge. The trial court accepted defendant's guilty plea, found him guilty, placed him on community control for three years, and ordered him to pay restitution and a fine. The trial court also sentenced defendant to 90 days in the county jail to run concurrently with a jail sentence in a separate case.

II. ASSIGNMENTS OF ERROR

(¶ 3} The state appeals from the court's imposition of community control in lieu of a prison term and assigns the following errors:

[I.] THE TRIAL COURT ERRED IN IMPOSING COMMUNITY CONTROL WHEN IT FAILED TO MAKE THE FULL REQUIRED FINDINGS FOR OVERCOMING THE PRESUMPTION OF PRISON.
[II.] THE TRIAL COURTS IMPOSITION OF COMMUNITY CONTROL IS CONTRARY TO LAW, AS DEFENDANT CANNOT OVERCOME THE PRESUMPTION IN FAVOR OF A PRISON TERM.

III. DISCUSSION

(¶ 4} In its first assignment of error, the state asserts the trial court erred in imposing community control when it failed to make the full required findings for overcoming the presumption of prison.

(¶ 5} The trial court placed defendant on community control after finding him guilty of a felony of the second degree. Under R.C. 2929.13(D)(1), "for a felony of the first or second degree, * * * it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code." Notwithstanding this presumption, community control may be ...


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