[Cite as State v. Walker,
2014-Ohio-4586.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 14AP-181
v. : (C.P.C. No. 11CR-01-559)
Brandon B. Walker, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on October 16, 2014
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellant.
Todd W. Barstow, for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the
Franklin County Court of Common Pleas granting judicial release to defendant-appellee,
Brandon B. Walker. For the following reasons, we reverse that judgment and remand the
matter for further proceedings.
I. Factual and Procedural Background
{¶ 2} On January 28, 2011, a Franklin County Grand Jury indicted Walker for 28
counts of aggravated burglary, aggravated robbery, robbery, kidnapping, and felonious
assault. All the counts also contained firearm specifications. The counts all arose from a
home invasion committed by Walker and another man. Eventually, Walker entered a
guilty plea to one count of robbery, a felony of the second degree, with a firearm
No. 14AP-181 2
specification. The trial court dismissed the remaining charges, accepted Walker's plea
and found him guilty. The trial court sentenced Walker to five years in prison.
{¶ 3} On November 14, 2013, Walker filed a motion for judicial release pursuant
to R.C. 2929.20. After a brief hearing, the trial court granted Walker judicial release.
II. The State's Appeal
{¶ 4} The state appeals the grant of judicial release and assigns the following
errors:
1. The trial court erred and abused its discretion in failing to
make the findings to justify the judicial release of a second-degree felon.
2. The trial court erred and abused its discretion in failing to
list all of the factors presented at the hearing in deciding to
grant judicial release to a second-degree felon.
3. The trial court erred and abused its discretion in granting
judicial release for a second-degree felon based on an
assessment that defendant's crime was "not the most serious
home invasion I've ever seen …."
4. The trial court erred in misstating the prison sentence that
can be imposed if he violates his judicial release.
5. The trial court erred in granting judicial release in the
absence of record support for the necessary finding related to
seriousness.
A. The State's First through Fourth Assignments of Error
1. The Grant of Judicial Release
{¶ 5} We collectively address the state's first three assignments of error in which
the state contends the trial court erroneously granted judicial release. We agree.
{¶ 6} The state, pursuant to R.C. 2953.08(B)(3), may appeal as a matter of right a
decision to grant judicial release to an offender sentenced for a felony of the first or
second degree, such as Walker. The applicable standard of review is whether the record
clearly and convincingly supports the trial court's findings made pursuant to
R.C. 2929.20(J) or whether the decision is otherwise contrary to law. R.C. 2953.08(G)(2).
State v. Williams, 10th Dist. No. 10AP-55, 2010-Ohio-4519, ¶ 9, citing State v. Costlow,
8th Dist. No. 89501,
2008-Ohio-1097, ¶ 9-13.
No. 14AP-181 3
{¶ 7} R.C. 2929.20 governs judicial release. Because Walker was sentenced for a
second-degree felony, R.C. 2929.20 applies, which provides:
(J)(1) A court shall not grant a judicial release under this
section to an eligible offender who is imprisoned for a felony
of the first or second degree … unless the court, with
reference to factors under section 2929.12 of the Revised
Code, finds both of the following:
(a) That a sanction other than a prison term would
adequately punish the offender and protect the public from
future criminal violations by the eligible offender because the
applicable factors indicating a lesser likelihood of recidivism
outweigh the applicable factors indicating a greater likelihood
of recidivism;
(b) That a sanction other than a prison term would not
demean the seriousness of the offense because factors
indicating that the eligible offender's conduct in committing
the offense was less serious than conduct normally
constituting the offense outweigh factors indicating that the
eligible offender's conduct was more serious than conduct
normally constituting the offense.
(2) A court that grants a judicial release to an eligible offender
under division (J)(1) of this section shall specify on the record
both findings required in that division and also shall list all
the factors described in that division that were presented at
the hearing.
{¶ 8} Accordingly, before a trial court may grant judicial release, the court must
make the findings contained in R.C. 2929.20(J) with reference to factors in R.C. 2929.12,
specify those findings on the record, and list the relevant factors presented at the hearing.
State v. Riley, 10th Dist. No. 00AP-599 (Oct. 31, 2000). The state argues in these three
assignments of error that the trial court did not follow these statutory procedures. We
agree.
{¶ 9} Although the trial court read and acknowledged the required statutory
findings,1 the trial court failed to actually make the findings required by R.C.
2929.20(J)(1) with reference to R.C. 2929.12 factors. The trial court also failed to list the
R.C. 2929.12 factors that were presented at the judicial release hearing as required by R.C.
1 The trial court noted that "[t]hose are the two standards I've got to look at." (Tr. 7.)
No. 14AP-181 4
2929.20(J)(2). See Williams at ¶ 11, citing State v. Weiss, 180 Ohio App.3d 509, 2009-
Ohio-78, ¶ 17 (3d Dist.). In the absence of those findings and factors, the trial court could
not grant judicial release. State v. Orms, 10th Dist. No. 13AP-698,
2014-Ohio-2732, ¶ 11;
Riley.
{¶ 10} Additionally, the trial court noted at the hearing that Walker's offense was
"not the most serious home invasion I've ever seen." (Tr. 7.) This is not the proper
standard a trial court must apply in considering judicial release. Pursuant to R.C.
2929.20(J)(1)(b), a trial court must determine whether judicial release would demean the
seriousness of the offender's offense. To make this determination, the trial court must
consider whether the offender's conduct in committing the offense was more or less
serious than conduct normally constituting the offense. We assume this is the
consideration the trial court attempted to address with its language. The trial court's
conclusion that Walker did not commit the most serious home invasion does not satisfy
this statutory consideration.
{¶ 11} The trial court failed to comply with the requirements of R.C. 2929.20(J) in
deciding to grant Walker judicial release. Accordingly, we sustain the state's first three
assignments of error.
2. The Trial Court's Entry Granting Judicial Release
{¶ 12} In its fourth assignment of error, the state also contends that the trial
court's judgment entry granting judicial release contained a clerical error. Our disposition
of the state's first three assignments of error renders this assignment of error moot.
App.R. 12(A)(1)(c).
B. The State's Fifth Assignment of Error
{¶ 13} Lastly, the state requests this court order the trial court to deny Walker's
request for judicial release because the record does not support the findings that must be
made for Walker to receive judicial release. We deny the state's request and remand the
matter for the trial court to comply with R.C. 2929.20 in deciding whether to grant or
deny Walker's motion for judicial release. State v. Day, 10th Dist. No. 09AP-40, 2010-
Ohio-125, ¶ 14 (noting that this court consistently remands cases when judicial release
granted without proper findings for trial court to comply with statutory requirements).
Accordingly, we overrule the state's fifth assignment of error.
No. 14AP-181 5
III. Conclusion
{¶ 14} We sustain the state's first three assignments of error and overrule its fifth
assignment of error. This disposition renders the state's fourth assignment of error moot.
Accordingly, we reverse the judgment of the Franklin County Court of Common Pleas and
remand the matter for further proceedings that comply with R.C. 2929.20(J).
Judgment reversed; cause remanded.
BROWN and LUPER SCHUSTER, JJ., concur.
