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State v. Harp

Court of Appeals of Ohio, Twelfth District, Clermont

December 18, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DONALD KEITH HARP, Defendant-Appellant.

         CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2014 CR 00499

          D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, for plaintiff-appellee.

          Scott N. Blauvelt, for defendant-appellant.

          OPINION

          RINGLAND, J.

         {¶ 1} Defendant-appellant, Donald K. Harp, appeals from the decision of the Clermont County Court of Common Pleas sentencing him to serve a mandatory term of 36 months in prison after resentencing following his plea of no contest to one count of illegal assembly or possession of chemicals for the manufacture of methamphetamine. For the reasons outlined below, we affirm.

         {¶ 2} We have previously detailed the facts of Harp's case as follows:

         {¶ 3} On September 4, 2014, the Clermont County Grand Jury returned an indictment charging Harp with one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), a third-degree felony. According to the bill of particulars, the charges stemmed from allegations that on January 4, 2014, police observed Harp purchasing items commonly used in the manufacture of methamphetamine from a Meijer store located in Milford, Clermont County, Ohio. Police stopped Harp and found him to be in possession of numerous items necessary for the manufacture of methamphetamine. Harp admitted the same. It is undisputed that Harp had prior convictions for trafficking in marijuana in violation of R.C. 2925.03(A)(1), a fourth-degree felony; possession of marijuana in violation of R.C. 2925.11(A), a third-degree felony; and illegal assembly or possession of chemicals for the manufacture of methamphetamine in violation of R.C. 2925.041(A), also a third-degree felony.

         {¶ 4} On September 10, 2014, Harp entered a plea of not guilty. However, on October 8, 2015, after the trial court decided a number of other issues not relevant to this appeal, Harp withdrew his not guilty plea and entered a plea of no contest to the single charged offense. After accepting Harp's no contest plea, the trial court found Harp guilty as charged. The trial court then held a sentencing hearing and sentenced Harp to serve a mandatory term of 36 months in prison. In so holding, the trial court stated that it was required to impose a mandatory 36-month prison sentence in light of this court's decision in State v. Young, 12th Dist. Warren No. CA2014-05-074, 2015-Ohio-1347, a decision that addressed a similarly situated defendant found guilty of illegal assembly or possession of chemicals for the manufacture of methamphetamine.

         {¶ 5} As further discussed below, Harp appealed from the trial court's sentence arguing the trial court erred by misinterpreting our decision in Young as requiring it to sentence him to a mandatory term of 36 months in prison. State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 6 (Harp I). This court sustained Harp's sole assignment of error and reversed and remanded the case for resentencing. Id. at ¶ 16.

         {¶ 6} On remand, the trial court found it was required to sentence Harp to a mandatory prison term, and thereafter, sentenced Harp to a mandatory prison term of 36 months. Harp timely appealed.

         {¶ 7} Assignment of Error No. 1:

         {¶ 8} THE TRIAL COURT ERRED IN IMPOSING A MANDATORY PRISON TERM WHICH SENTENCE WAS CONTRARY TO LAW.

         {¶ 9} Harp contends the trial court misinterpreted our holdings in Young and Harp I upon remand, leading to its imposition of a sentence clearly and convincingly contrary to law. Harp argues the pertinent statutory provisions further conflict beyond the conflict we found in Young and Harp I, and therefore, the rule of lenity required the trial court to make a finding against the imposition of a mandatory prison term.

         {¶ 10} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences. State v. Marcum,146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; accord State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ΒΆ 6. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony sentencing decision, "[t]he appellate court may increase, reduce, or otherwise modify a sentence that is appealed under ...


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