.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JAMES C. WRIGHT : Case No. 12CA22
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 11CR11-0181
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 3, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AARON E. ALLARD GEOFFREY L. OGLESBY
117 East High Street 618 West Washington Street
Suite 234 Sandusky, OH 44870
Mount Vernon, OH 43050
Knox County, Case No. 12CA22 2
Farmer, J.
{¶1} On November 8, 2011, the Knox County Grand Jury indicted appellant,
James Wright, on two counts of nonsupport of dependents in violation of R.C.
2919.21(A) and (B), felonies of the fifth degree.
{¶2} A jury trial commenced on October 16, 2012. The subsection (A) count
was dismissed at the start of the trial. The jury found appellant guilty of the subsection
(B) count. By sentencing entry filed November 8, 2012, the trial court sentenced
appellant to three years of community control and ninety days in jail. Appellant was
ordered to pay $19,080.16 to the Knox County Child Enforcement Agency and pay
$335.88 per month for child support and arrearages.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED [IN] NOT FINDING THAT THE
DEFENDANT WAS GUILTY OF A MISDEMEANOR BUT BY FINDING IN ITS
JUDGMENT ENTRY THAT APPELLANT WAS 'FOUND GUILTY AT TRIL (SIC) BY
JURY OF ONE COUNT OF FAILURE TO PROVIDE ADEQUATE SUPPORT OF
DEPENDENTS, IN VIOLATION OF R.C. 2919.21(B), A FELONY OF THE FIFTH
DEGREE' WHEN THE JURY VERDICT FAILED TO SPECIFY THE STATUTORY
SECTION OF THE OFFENSE OR SPECIFICALLY SET FORTH THE DEGREE OF
THE CRIME CHARGED."
Knox County, Case No. 12CA22 3
II
{¶5} "THE TRIAL COURT ERRED BY GRANTING RESTITUTION IN AN
AMOUNT BEYOND THE AMOUNT IN THE INDICTMENT AND THE TIME THE
ALLEGED CRIME WAS COMMITTED DURING THE INDICTMENT."
I, II
{¶6} Appellant claims the trial court erred in finding that he was found guilty of a
fifth degree felony as opposed to a misdemeanor because the verdict form did not
specify a statutory section of the offense, the degree of the offense charged, or any
aggravating elements to elevate the offense to a felony. We agree.
{¶7} The leading case on this issue is State v. Pelfrey,
, syllabus, wherein the Supreme Court of Ohio held: "Pursuant to the
clear language of R.C. 2945.75, a verdict form signed by a jury must include either the
degree of the offense of which the defendant is convicted or a statement that an
aggravating element has been found to justify convicting a defendant of a greater
degree of a criminal offense."
{¶8} In its brief at 2, appellee, the state of Ohio, concedes the issue. Appellant
should have been sentenced to the lowest degree of the offense, a misdemeanor. R.C.
2919.21(G)(1). Restitution should be commensurate with a misdemeanor offense.
{¶9} Assignment of Error I is granted and Assignment of Error II is moot.
Knox County, Case No. 12CA22 4
{¶10} The judgment of the Court of Common Pleas of Knox County, Ohio is
hereby reversed.
By Farmer, J.
Gwin, P.J. and
Baldwin, J. concur.
SGF/sg 523
