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State v. Curry

Court of Appeals of Ohio, Eighth District

September 26, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
SHERMAN A. CURRY, DEFENDANT-APPELLANT

Criminal Appeals from the Cuyahoga County Court of Common Pleas Case Nos. CR-565250, CR-563449.

ATTORNEY FOR APPELLANT Michael Westerhaus.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Fallon Radigan Assistant County Prosecutor The Justice Center.

BEFORE: Stewart, A.J., Jones, J., and McCormack, J.

JOURNAL ENTRY AND OPINION

MELODY J. STEWART, A.J.

(¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. In this consolidated appeal, defendant-appellant Sherman A. Curry appeals from the judgments of the Cuyahoga County Court of Common Pleas that sentenced him to four years in prison for second- and third-degree felony burglary offenses. For the reasons stated below, we reverse the decision of the trial court and remand this matter for resentencing.

(¶2} Curry committed two burglaries — the first occurring on May 25, 2012, and the second on June 4, 2012. On both occasions, Curry and a co-defendant entered the homes of the victims and took items of value. These burglaries happened during the night when the victims were sleeping.

(¶3} On January 8, 2013, in Cuyahoga C.P. No. CR-565250, Curry pled guilty to one count of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree. In Cuyahoga C.P. No. CR-563449, Curry pled guilty to one count of burglary in violation of R.C. 2911.12(A)(3), a felony of the third degree. On February 7, 2013, the trial court sentenced Curry to four years in the first case and four years in the second case. The sentences were ordered to run concurrently.

(¶ 4} On appeal, Curry's sole assignment of error is that his four-year sentence for a third-degree burglary offense in CR-563449 is contrary to law. We agree.

(¶5}R.C. 2929.14(A) states:

Except as provided in division (B)(1), (B)(2), (B)(3), (B)(4), (B)(5), (B)(6), (B)(7), (B)(8), (E), (G), (H), or (J) of this section or in division (D)(6) of section 2919.25 of the Revised Code and except in relation to an offense for which a sentence of death or life imprisonment is to be imposed, if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender pursuant to this chapter, the court shall impose a definite prison term that shall be one of the following:
(1) For a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, ten, or eleven years.
(2) For a felony of the second degree, the prison term shall be two, three, four, five, six, seven, or eight years.
(3) (a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term ...

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