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State v. Martin

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 11, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
FREDRICK G. MARTIN, DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597329-A.

          ATTORNEY FOR APPELLANT Michael Hustick

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Brett Hammond Assistant County Prosecutor

          BEFORE: Laster Mays, J., Keough, A.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE

         {¶1} 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.

         {¶2} 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.

         {¶3} Martin contends that the sentence is clearly and convincingly contrary to law.

         {¶4} 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).

         I. Sentencing Contrary to Law

         A. Standard of Review

         {¶5} 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, ΒΆ 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 ...

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