Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Michael Hustick
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Brett Hammond Assistant County
BEFORE: Laster Mays, J., Keough, A.J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE
Defendant-appellant, Fredrick G. Martin ("Martin"),
appeals his sentence and asks this court to modify his
sentence pursuant to the authority under R.C. 2953.08(G).
After a review of the record, we vacate and remand.
Martin pleaded guilty to one count of operating a vehicle
while under the influence ("OVI"), a fourth-degree
felony in violation of R.C. 4511.19(A)(1)(a). The trial court
sentenced Martin to 18 months imprisonment. During the
sentencing hearing, the trial court stated that 18 months
imprisonment was a mandatory term. (Tr. 21.) Martin disagrees
with the trial court's determination and assigns one
error for our review.
Martin contends that the sentence is clearly and convincingly
contrary to law.
The state concedes and agrees that the trial court erred in
imposing an 18-month mandatory prison term for Martin's
conviction under R.C. 4511.19(A)(1)(a); however, it disagrees
with Martin's proposed remedy to modify his sentence by
imposing a 60-day mandatory prison term. The state argues
that this court should remand this case to the trial court
for resentencing consistent with R.C. 4511.19(G)(1)(d).
Sentencing Contrary to Law
Standard of Review
This court has determined that
[a]ppellate review of felony sentences is governed by R.C.
2953.08. State v. Marcum,146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. R.C. 2953.08(G)(2)
provides that when reviewing felony sentences, a reviewing
court may increase, reduce, or modify a sentence, or it may
vacate and remand the matter for resentencing, only if we
clearly and convincingly find that either the record does not
support the sentencing court's statutory findings or the
sentence is contrary to law. A sentence is contrary to law if
the sentence falls outside the statutory range for the
particular degree of offense or the trial court failed to
consider the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the sentencing ...