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State v. Briscoe

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 3, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KIMBERLY BRISCOE DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-617195-A

          ATTORNEY FOR APPELLANT Mary Catherine Corrigan

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor, Kevin E. Bringman Assistant County Prosecutor

          BEFORE: Stewart, P.J., Laster Mays, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, PRESIDING JUDGE

         {¶1} Defendant-appellant Kimberly Briscoe pleaded guilty to aggravated vehicular assault and driving under the influence of alcohol or drugs. The court sentenced Briscoe to community control for each count and a jail term of 120 days. On appeal, she argues that the court erred in sentencing as to the aggravated vehicular assault. The state concedes the error and we agree.

         {¶2} As relevant to this appeal, Briscoe initially pleaded guilty to aggravated vehicular assault, in violation of R.C. 2903.08(A)(2)(b), as charged in the indictment. The charge included a specification for driving under a suspended licence at the time of the incident, which elevated the offense to a third-degree felony. See R.C. 2903.08(C)(2). Briscoe and the state both agreed that the offense level was correct.

         {¶3} Prior to sentencing, the state moved to amend the charge by deleting the specification. Briscoe and the state nevertheless erroneously confirmed to the court that the offense was still a felony of the third degree. The court accepted the amendment and sentenced Briscoe accordingly. Removing the specification, however, actually reduced the offense level to a fourth-degree felony. See R.C. 2903.08(C)(2). The court's journal accurately reflects that the charge was amended but it incorrectly lists the offense level as a third-degree felony. This error requires reversal. See State v. Russell 8th Dist. Cuyahoga No. 87608, 2006-Ohio-6764, ¶ 29.

         {¶4} In addition to this error, at sentencing the court failed to notify Briscoe that it would impose a definite penalty should she violate the terms of her community control. The court was required to "notify the offender of the 'specific' term the offender faces for violating community control." State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 19, quoting R.C. 2929.19(B)(5). The court did not do this. Instead, it informed Briscoe that in the event she violated community control, the court would "have the option of placing you in prison[, ] or I can place you in county jail for up to 180 days[, ] or I can send you to the community based correctional facility for up to six months * * *." (Tr. 102.)

         {¶5} The court's journal entry further compounds the error. As noted, the offense for which Briscoe was convicted is a fourth-degree felony that carries a maximum 18-month prison sentence. See R.C. 2929.14(A)(4). R.C. 2929.15(B)(3) provides that the prison sentence for a community control violation shall be "within the [statutory] range" of the offense, and "not exceed the prison term specified" at sentencing. The court's journal entry states that a "[violation of the terms and conditions may result in more restrictive sanctions, or a prison term of 36 month(s) as approved by law."

         {¶6} Finally, the court erred by imposing a mandatory three-year term of postrelease control. As relevant here, R.C. 2967.28(C) provides that a prison sentence for a felony of the fourth degree may include a term of postrelease control for up to three years, subject to the discretion of the parole board. Thus the court did not validly impose postrelease control. State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 13 ("[T]o validly impose postrelease control, a minimally compliant entry must provide the [parole authority] the information it needs to execute the postrelease-control portion of the sentence.").

         {¶7} Judgment reversed and remanded for resentencing.

         It is ordered that appellant recover of appellee ...


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