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State v. Prisby

Court of Appeals of Ohio, Eleventh District, Portage

December 29, 2017

STATE OF OHIO, Plaintiff-Appellee,
TERRANCE A. PRISBY, Defendant-Appellant.

         Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00503. Judgment: Affirmed and remanded.

          Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

          John P. Laczko, Assistant Public Defender, 209 South Chestnut Street, #400, Ravenna, OH 44266, and Wesley C. Buchanan, Buchanan Law, Inc., 12 East Exchange Street, 5th Floor, Akron, OH 44308 (For Defendant-Appellant).



         {¶1} Appellant, Terrance A. Prisby, appeals his mandatory three-year sentence in the Portage County Court of Common Pleas, following his no contest plea to Failure to Provide Notice of Change of Address, having previously been convicted of gross sexual imposition. For the reasons that follow, we affirm and remand.

         {¶2} On July 18, 2016, appellant was indicted for Failure to Provide Notice of Change of Address, a felony of the third degree, in violation of R.C. 2950.05. Appellant's most serious sexually oriented offense was gross sexual imposition, a felony of the third degree. The indictment alleged that appellant, who is required to register with the County Sheriff, failed to provide the sheriff with notice of his change of address. The indictment further alleged that appellant had previously been convicted in 2015 for another failure to provide notice of a change of his address.

         {¶3} On January 18, 2017, appellant pled no contest to the indictment, but challenged the mandatory nature of the three-year sentence. On February 27, 2017, the trial court heard argument on this issue. Appellant's counsel argued that because, in his view, the sentence was not mandatory, appellant was eligible for community control and "our position would be to ask the Court to grant him community control * * *."

         {¶4} After the parties briefed the issue, the court entered judgment, finding that "[t]he sentence under 2950.05 'Failure to Provide a Change of Address, ' a Felony of the Third Degree, has a mandatory three year prison term." Subsequently, the court sentenced appellant to a mandatory term of three years in prison. Appellant appeals his sentence, asserting the following for his sole assignment of error:

         {¶5} "The trial court imposed a sentence contrary to law."

         {¶6} Appellant argues that the trial court erred in imposing a mandatory three-year sentence because, in his view, R.C. 2950.99 does not provide for a mandatory sentence or, alternatively, this statute conflicts with certain provisions of Ohio's general sentencing statutes, at R.C. 2929.01 et seq. To resolve this issue, we must determine whether R.C. 2950.99 provides for a three-year mandatory sentence. Statutory interpretation is a question of law that we review de novo. State v. Phillips, 11th Dist. Trumbull No. 2008-T-0036, 2008-Ohio-6562, ¶11. Contrary to the state's argument, appellant does not challenge the constitutionality of R.C. 2950.99.

         {¶7} If the meaning of a statute is clear on its face, then it must be applied as written. Phillips, supra. A court can only interpret a statute if it is ambiguous. Id. at ¶12. An ambiguity exists if the language is susceptible to more than one reasonable interpretation. State v. Swidas, 11th Dist. Lake No. 2009-L-104, 2010-Ohio-6436, ¶17 (reversed on other grounds.). When a court must interpret a criminal statute, the language should be strictly construed against the state and liberally construed in favor of the accused. R.C. 2901.04(A). However, strict construction should not override common sense and evident statutory purpose. State v. Sway, 15 Ohio St.3d 112, 116 (1984).

         {¶8} "'It is well settled that the General Assembly has the plenary power to prescribe crimes and fix penalties.'" State v. Barnes, 9th Dist. Lorain Nos. 13CA010502, 13CA010503, 2014-Ohio-2721, ¶7, quoting State v. Banks, 9th Dist. Summit No. 25279, 2011-Oiho-1039, ¶48. Further, specific sentencing provisions are controlling over general sentencing statutes dealing with the same subject. State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, ¶14. In Taylor, the Ohio Supreme Court held that R.C. 2925.11 (regarding drug offenses) is a specific sentencing statute that controls over the general sentencing statute, and Taylor was thus "subject to the more specific mandatory-sentencing requirements of R.C. 2925.11." Taylor, supra. In support of its holding, the Taylor Court relied on the "'well settled rule of statutory construction that where a statute couched in general terms conflicts with a specific statute on the same subject, the latter must control.'" Id. at ¶12, quoting Humphrys v. Winous Co., 165 Ohio St. 45, 48 (1956).

         {¶9} Appellant's argument is convoluted to say the least. He argues that because R.C. Chapter 2950 does not set forth the felony level or state that the three-year sentence for a second violation of R.C. 2950.05 is "mandatory, " R.C. Chapter 2950 must be read in conjunction with the general sentencing provisions in R.C. 2929.01 et seq. However, he argues that R.C. Chapter 2950 does not apply to the general sentencing statutes and that the general statutes do not mention R.C. Chapter 2950. He argues this creates a conflict between R.C. Chapter 2950 and the general sentencing statutes, creating an ambiguity and, thus, the trial court could only impose a definite, rather than a mandatory, sentence on him. However, the argument lacks merit because R.C. 2950.99(A)(2)(b), the specific sentencing statute for repeat nonreporting sex offenders, sets forth the felony level of appellant's current offense and the mandatory nature of the sentence. Thus, there is no need to look to the general sentencing statutes for guidance. As the First District stated, "R.C. 2950.99 delineates the felony level and, in some cases, the penalty for sex offenders who fail to comply with various registration and notification requirements." State v. Wilson, 1st Dist. Hamilton No. C-090436, 2010-Ohio-2767, ¶5. Thus, R.C. 2950.99, rather than the general sentencing statutes, controls these issues and there is no ambiguity.

         {¶10} R.C. 2950.05, the notification-requirement statute, provides an offender who is required to register "shall provide written notice of any change of residence address * * * to the sheriff with whom the offender * * * most recently registered the address * * *." R.C. 2950.05(A). Further, "[n]o one who is required to notify a ...

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