Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2016 CR 00503. Judgment: Affirmed and remanded.
V. Vigluicci, Portage County Prosecutor, and Kristina Reilly,
Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH
44266 (For Plaintiff-Appellee).
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).
CYNTHIA WESTCOTT RICE, P.J.
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.
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.
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 * * *."
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
"The trial court imposed a sentence contrary to
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.
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).
"'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).
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.
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 ...