State v. Logan

[Cite as State v. Logan, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellant,             :
                                                               No. 111533
                 v.                               :

JADYN LOGAN,                                      :

                 Defendant-Appellee.              :


             EN BANC DECISION AND JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: September 21, 2023


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-21-663779-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Tasha L. Forchione, Assistant Prosecuting
                 Attorney, for appellant.

                 Cullen Sweeney, Cuyahoga County Public Defender, and
                 John T. Martin, Assistant Public Defender, for appellee.


EILEEN A. GALLAGHER, J.:

Introduction

                 Jadyn Logan pleaded guilty to attempted having weapons while under

disability, a fourth-degree felony.             The charge carried a one-year firearm
specification, to which Logan also pleaded guilty. The trial court sentenced Logan

to a mandatory prison term of one year, attributed to the firearm specification, to be

followed by a two-year term of community control for the underlying felony. The

state appealed that sentence and argued that the trial court was required to impose

a mandatory prison term on both the underlying felony and the specification.

             The state made three arguments:         first, that R.C. 2929.13(F)(8)

requires the imposition of a mandatory prison term on an underlying felony when

the felony carries a corresponding firearm specification; second, that community

control is not an authorized sentence on an underlying felony under R.C.

2929.15(A)(1) when the felony carries a firearm specification that requires

imprisonment and third, that the imposition of a term of community control on an

underlying felony consecutive to a prison term imposed on a corresponding

specification is an improper split sentence.

             A panel of this court rejected these arguments and affirmed Logan’s

sentence in State v. Logan, 8th Dist. Cuyahoga No. 111533, 

. In

doing so, a majority of the panel concluded that its resolution of the state’s first

argument — holding that R.C. 2929.13(F)(8) does not preclude community control

on an underlying felony where the defendant pleaded guilty to a firearm

specification — conflicted with the holding of a previous decision of this court and

a statement this court made in another decision. See Logan at ¶ 32–35, 55.
              After the panel decision was journalized, the state requested en banc

consideration.1 Logan did not oppose the request.

              The en banc court reviewed the identified conflict and, pursuant to

App.R. 26(A)(2), Loc.App.R. 26 and McFadden v. Cleveland State Univ., 

, 

, 

, determined that a conflict exists

requiring en banc consideration. Specifically, the court found that a conflict exists

between the panel’s opinion in Logan and two previous opinions of the court — State

v. Sharpley, 8th Dist. Cuyahoga No. 106616, 

, and State v. Galvan,

8th Dist. Cuyahoga No. 108658, 

 — and that consideration en banc

is necessary to establish uniformity of decisions within the district on an issue that

is dispositive in this case.

              The opinions conflict on the following dispositive question of law:

       Does R.C. 2929.13(F)(8) require a mandatory prison term and preclude
       the imposition of community control sanctions on an underlying felony
       when a defendant is found guilty on a corresponding firearm
       specification?

              This opinion is divided into two parts: (1) the decision of the en banc

court and (2) the decision of the merit panel. The decision of the en banc court is

limited to an analysis and resolution of the question identified above. The decision

of the merit panel reissues the original panel decision on the state’s second and third

arguments which are outside the scope of this en banc review.


       1 The state requested that the en banc court resolve “whether R.C. 2929.13(F)(8)

requires a mandatory prison term, precluding community control, on an underlying
felony when the defendant pleaded guilty to a corresponding firearm specification.”
En Banc Decision

               After careful consideration of the detailed briefing and en banc

argument presented by the parties on this question before rendering this opinion

and for the reasons that follow, we answer the conflict question in the negative.

When a trial court crafts a sentence for a felony that carries a firearm specification,

R.C. 2929.13(F)(8) requires the court to impose the definite prison term prescribed

by R.C. 2929.14(B)(1)(a) as a mandatory prison term with respect to the

specification; it does not also require the court to impose a mandatory prison term

with respect to the underlying felony.

   I.      The Statute

               R.C. 2929.13(F)(8) states in relevant part:

        [T]he court shall impose a prison term … for any of the following
        offenses:

        Any offense, other than [carrying concealed weapons], that is a felony,
        if the offender had a firearm on or about the offender’s person or under
        the offender’s control while committing the felony, with respect to a
        portion of the sentence imposed pursuant to division (B)(1)(a) of
        section 2929.14 of the Revised Code for having a firearm.

                The state reads this statute to require that a mandatory prison term

be imposed on an offender for an underlying felony when the offender is found guilty

of an accompanying firearm specification. Logan argues that the statute only

requires a mandatory prison term on the portion of the sentence imposed for the

firearm specification.
   II.    Relevant Decisions From This District

               Logan directed the merit panel to three cases from this court that she

said are in conflict with each other on whether community control is authorized for

an underlying felony when a specification requires the imposition of a mandatory

prison term: State v. Moore, State v. Sharpley and State v. Galvan. The cases are

not in direct conflict.

               In Moore, this court considered a defendant’s argument that the trial

court had failed to conduct an adequate Crim.R. 11(C) plea colloquy before the

defendant entered his guilty plea to a charge of attempted felonious assault with a

three-year firearm specification. State v. Moore, 8th Dist. Cuyahoga No. 101658,

, ¶ 1. The defendant argued, among other things, that the trial court

failed to inform him that he was not eligible for community-control on the

underlying felony. This court found that the trial court substantially complied with

Crim.R. 11(C)(2) when it “told [the defendant] that he was ineligible for ‘probation’

with respect to a portion of his sentence [for the firearm specification], but eligible

with respect to the underlying offense.” Id. at ¶ 16. This court held that this

information “can be described only as reasonably intelligible because [the

defendant] expressed no confusion.” Id. Because the trial court had sentenced the

defendant to one year in prison on the underlying offense, id. at ¶ 4, this court did

not have occasion to consider the issue presented by this appeal. This court found

substantial compliance with Crim.R. 11(C) under similar circumstances in State v.

Taylor, 8th Dist. Cuyahoga No. 101609, 

 (defendant argued that the
trial court should have advised him that he was ineligible for community control in

light of a firearm specification and the trial court had sentenced the defendant to

prison on the underlying felony). The reasoning of Moore implies support for

Logan’s position. See Moore at ¶ 14 (applying emphasis to portions of R.C. 2929.13

that suggests a trial court has discretion to sentence an offender to community

control except “with respect to a portion of the sentence imposed pursuant to [a

firearm specification]”).

              In Sharpley, this court considered a similar fact pattern. State v.

Sharpley, 8th Dist. Cuyahoga No. 106616, 

. The defendant pleaded

guilty to an underlying felony and a firearm specification and the trial court imposed

prison sentences for both the felony and the firearm specification. Id. at ¶ 4, 18. The

defendant argued on appeal that his guilty plea was induced by the false promise

that he would receive a one-year sentence of imprisonment. Id. at ¶ 5. The trial

court had advised the defendant during the plea colloquy that he “faced a mandatory

one-year term for the one-year firearm specification, and that the [underlying

felony] robbery offense carried the presumption of imprisonment but community

control was also possible.” Id. at ¶ 13. As in Moore, this court concluded that the

trial court substantially complied with its duties under Crim.R. 11(C) in the colloquy.

Id. Therefore, the holdings of Moore and Sharpley are not in conflict with each

other.

               The second issue presented in Sharpley, though, is directly applicable

to the question presented by this appeal. The defendant in Sharpley argued on
appeal that he should have been sentenced to community control on the underlying

felony. This court held that the defendant was not eligible for community control

on the underlying felony by application of R.C. 2929.13(F)(8) because he had

pleaded guilty to a firearm specification that required imprisonment. Id. at ¶ 17. We

note, however, that neither party in Sharpley raised R.C. 2929.13(F)(8) or argued

that the defendant was ineligible for community control in their briefing. So, while

Sharpley’s holding is directly applicable to the matter at hand, we are mindful that

the Sharpley panel did not benefit from the extensive briefing that is now before this

court on the application of R.C. 2929.13(F)(8).

               In Galvan, a panel of this court again considered a challenge to a trial

court’s Crim.R. 11(C) plea colloquy. State v. Galvan, 8th Dist. Cuyahoga No.

108658, 

. The defendant argued that the trial court should have

informed him that he was not eligible for judicial release. Id. at ¶ 10. This court held

that the trial court did not violate Crim.R. 11 when it did not discuss judicial release

at the plea hearing; the panel reasoned that judicial release was not part of the

defendant’s plea. Id. at ¶ 18. The defendant also challenged his plea based on his

counsel’s statements at the sentencing hearing that suggested his counsel believed

judicial release was possible. Id. at ¶ 19. In agreeing with the parties that defense

counsel’s statements were inaccurate, this court stated that “[u]nder R.C.

2929.13(F)(8), the aggravated robbery conviction requires a mandatory prison term

where, as here, the defendant had a firearm on his person while committing the

felony. … A mandatory sentence renders a defendant ineligible for judicial release.
Therefore, [the defendant’s] sentence was mandatory, and he was not eligible for

judicial release.” (Citation omitted.) Id. at ¶ 20–21. This court upheld the plea

because the defense counsel’s “erroneous statements” about judicial release were

made at sentencing, not at the defendant’s plea hearing. Id. at ¶ 22. Notably,

whether the defendant was eligible for judicial release was not at issue in Galvan;

the parties agreed with each other that he was not. Moreover, neither party in

Galvan cited or discussed Moore, Sharpley or R.C. 2929.13(F)(8) in their briefing.

Therefore, while the panel’s discussion of R.C. 2929.13(F)(8) in Galvan supported

the state’s position in this appeal, the Galvan Court did not have the opportunity to

consider the issue presented by this appeal because of the parties’ positions and the

procedural posture of the case.

              These three opinions are not in conflict. The reasoning of Moore

suggests a disagreement with the Sharpley holding and Galvan’s statement about

the effect of R.C. 2929.13(F)(8), but the court in Moore did not consider whether a

trial court can sentence a defendant to community control on an underlying felony

where the defendant is subject to a mandatory prison term for a firearm

specification. The actual holdings of Moore and Galvan — regarding whether a trial

court substantially complies with Crim.R. 11 when it does not inform the defendant

that the defendant is not eligible for judicial release during a plea colloquy — are

fully consistent with Sharpley’s holding on that issue.

              Therefore, the state of the law in this district prior to the merit panel’s

opinion in Logan was that a defendant is not eligible for community control on an
underlying felony by application of R.C. 2929.13(F)(8) where the defendant pleaded

guilty to a firearm specification that requires imprisonment. Sharpley at ¶ 17; cf.

Galvan at ¶ 20–21.

               The merit panel in this appeal came to the contrary conclusion, a

majority of that panel holding as follows:

      After careful consideration, we conclude that R.C. 2929.13(F)(8) only
      requires that a trial court impose the prison term set forth in R.C.
      2929.14(B)(1)(a) when crafting a sentence for a felony offense (other
      than a violation of R.C. 2923.12) that carries a firearm specification; it
      does not require a trial court to impose a prison term on the felony
      offense underlying a firearm specification.

Logan, 

.

   III.   Analysis and Conclusion

               The state emphasizes that R.C. 2929.13(F)(8) refers to “offenses”; the

statute requires a mandatory prison term “for any of the following offenses: …

[a]ny offense … that is a felony, if the offender had a firearm on or about the

offender’s person or under the offender’s control while committing the felony ….”

(Emphasis added.) The state says that the only offense in this case is the underlying

felony because a firearm specification is not an offense and asserts that the statute

thus requires a prison term for that “offense.”2 The state argues that the legislature

would have written the statute to specifically refer to specifications if it had intended




      2 The state has advocated for the contrary position in other matters.  In State v.
Culp, for instance, the state recommended that the trial court impose a prison sentence
on a firearm specification, followed by a term of community control on the underlying
felony. Culp, 

, 

.
to make only the sentence attributable to the specification mandatory and not the

underlying felony.

               Logan’s argument rests on the final few words of R.C. 2929.13(F)(8);

the statute requires a mandatory prison term “for any of the following offenses:

… any offense that is a felony, if the offender had a firearm on or about the

offender’s person or under the offender’s control while committing the felony, with

respect to a portion of the sentence imposed pursuant to [R.C. 2929.14(B)(1)(a)]

for having the firearm.” (Emphasis added.) Logan contends that the state’s

argument inexplicably reads this phrase out of the statute. We agree.

               The state offers us no real explanation about what this phrase means,

if not that a mandatory prison term is only required for the portion of the sentence

attributable to the specification. The opinions rendered by other appellate districts

that come to the state’s preferred conclusion, in our view, similarly do not

sufficiently consider the last phrase of the statute.3



      3 See State v. Wofford, 1st Dist. Hamilton No. C-180411, 

(“[The defendant] admitted to committing a felony while having a firearm on his person
or under his control. Therefore, pursuant to R.C. 2929.13(F)(8), the trial court was
required to impose a prison sentence for the involuntary-manslaughter offense.”); State
v. Shields, 2d Dist. Montgomery No. 28573, 

; State v. Wolfe, 3d
Dist. Union No. 14-21-16, 

, ¶ 25; State v. Culp, 

, 

, 13–14 (6th Dist.) (“Under the plain language of the statute, when a defendant
is convicted of committing any felony (with the exception of carrying concealed weapons)
while having or controlling a firearm, the court is required to impose a prison term — not
community control sanctions — in addition to the mandatory prison term for the firearm
specification required by R.C. 2929.14(B)(1)(a).”); cf. State v. Christian, 7th Dist.
Mahoning No. 02 CA 170, 

; State v. White, 10th Dist. Franklin
No. 10AP-34, 

, ¶ 74; but see State v. Roush, 5th Dist. Morrow No.
13CA0008, 

, 39–40 (stating in dicta that R.C. 2929.13(F)(8)
               The state points out that a former version of R.C. 2929.14 stated as

follows, in relevant part:

      “[I]f an offender who is convicted of or pleads guilty to a felony is also
      convicted of or pleads guilty to [a firearm specification], the court, after
      imposing a prison term on the offender for the felony …[,] shall
      impose an additional [mandatory] prison term [for the firearm
      specification].”

(Alterations added.) State v. Kehoe, 

, 

 (12th

Dist.1999), quoting the former R.C. 2929.14(D)(1)(a)(i).

               The state also directs us to the Legislative Service Commission

Synopsis of House Amendments to S.B. 269, which states that the amending

legislation “requires that a mandatory firearm term be served consecutively to

(existing law) and prior to (new) the prison term imposed for the underlying felony

and consecutively to any other prison term imposed on the offender.” Legislative

Service Commission Synopsis of House Amendments, Am. Sub. S.B. 269, 121st

General Assembly.

               These citations do not persuade us to depart from the plain language

of R.C. 2929.13(F)(8). The Supreme Court has instructed that, “when analyzing an

issue of statutory interpretation, ‘[t]he question is not what did the general assembly

intend to enact, but what is the meaning of that which it did enact.’” State v. Bollar,

Slip Opinion No. 

, quoting State v. Hudson, Slip Opinion No.

. “If the statute’s language is plain and unambiguous, we apply



“requires the firearm specification penalty be made mandatory but not the penalty for the
underlying offense”).
it as written.” Bollar at ¶ 10, citing Portage Cty. Bd. of Commrs. v. Akron, 

, 

, 

.

               We find that the language of R.C. 2929.13(F)(8) is plain and

unambiguous. The statute requires that a trial court, when crafting a sentence for a

felony (other than a violation of R.C. 2923.12) that is enhanced with a firearm

specification, impose the definite prison term prescribed by R.C. 2929.14(B)(1)(a)

as a mandatory prison term. The statute does not require the imposition of a

mandatory prison term with respect to the felony underlying the firearm

specification. See also Ohio Criminal Sentencing Commission, Felony Sentencing

Quick          Reference           Guide           (Dec.2019),           p.         4,

https://www.supremecourt.ohio.gov/Boards/Sentencing/resources/judPractition

er/felonyQuickRef.pdf (accessed Aug. 1, 2023) (identifying that under R.C.

2929.13(F)(8), among other statutory sections, “Time for specification is

mandatory; Term for the underlying offense may or may not be.”); State v. Webb,

8th Dist. Cuyahoga No. 73974, 

, 11–12 (Nov. 19, 1998)

(reading a former version of R.C. 2929.13(F)(8) with substantially similar language

to “make[] a prison sentence mandatory only for the firearm specification, but not

for the underlying felony”) (Karpinski, J., concurring in judgment only).

               To read the statute in the way that the state suggests would be to read

the last phrase out of the statute. The statutory reference to “offenses,” as opposed

to “specifications,” is logical; a specification is merely “a sentence enhancement that
attaches to a predicate offense.” State v. Ford, 

, 

,

, at ¶ 16.4

               A consideration of the former version of R.C. 2929.14 supports this

conclusion. While the statute required a prison sentence on the underlying felony

conviction, only the “additional prison term” attributable to the firearm

specification was prohibited from being reduced through judicial release, earned

credit or other provisions of R.C. Chapter 2967. That fact supports a conclusion that

R.C. 2929.13(F)(8) similarly provides for a mandatory prison term only for the

portion of a felony sentence imposed pursuant to a firearm specification.

                We, therefore, hold that R.C. 2929.13(F)(8) does not require the

imposition of a mandatory prison term or preclude the imposition of community-

control penalties on an underlying felony when a defendant is found guilty on a

corresponding firearm specification. In our view, R.C. 2929.13(F)(8) cannot be read

in any other way than we do here. Even if there were some ambiguity, “sections of

the Revised Code defining offenses or penalties shall be strictly construed against

the state, and liberally construed in favor of the accused.” R.C. 2901.04(A).




       4 While the Supreme Court found that an offender can be sentenced on a firearm

specification that accompanied a merged count, Bollar at ¶ 18, it did so relying on the
plain language of R.C. 2929.14(B)(1)(g), a statute that specifically addressed that issue.
See 

 at ¶ 19–21. That the legislature required a sentence for a specification even in the
absence of an underlying felony sentence under specific enumerated circumstances does
not convince us that we should disregard the final phrase of R.C. 2929.13(F)(8) solely
because the statute uses the word “offenses.”
               Sharpley, 8th Dist. Cuyahoga No. 106616, 

, and

Galvan, 8th Dist. Cuyahoga No. 108658, 

, are overruled to the

extent that they are inconsistent with this opinion.




_________________________
EILEEN A. GALLAGHER, JUDGE

ANITA LASTER MAYS, A.J.; LISA B. FORBES, EMANUELLA D. GROVES,
KATHLEEN ANN KEOUGH, MARY EILEEN KILBANE, MICHAEL JOHN RYAN,
and MICHELLE J. SHEEHAN, JJ., CONCUR;

SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION);

MARY J. BOYLE, FRANK DANIEL CELEBREZZE, III, and EILEEN T.
GALLAGHER, JJ., CONCUR IN JUDGMENT ONLY AND CONCUR WITH
JUDGE SEAN C. GALLAGHER’S OPINION CONCURRING IN JUDGMENT
ONLY.


SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

               I concur in judgment only with the majority opinion. I do so because

a plain reading of the (F)(8) subsection does not leave room for an alternative

decision. The en banc holding is narrow: “When a trial court crafts a sentence for a

felony that carries a firearm specification, R.C. 2929.13(F)(8) requires the court to

impose the definite prison term prescribed by R.C. 2929.14(B)(1)(a) as a mandatory

prison term with respect to the specification; it does not also require the court to

impose a mandatory prison term with respect to the underlying felony.” (Emphasis

added.)
                That is a true statement but, for the most part, that is because R.C.

2929.13(F) is not a provision authorizing the imposition of sentences.             R.C.

2929.13(F) establishes the nature of how a sentence is to be served after it was

imposed, and it requires mandatory service of certain prison sentences imposed

through other provisions of the Revised Code. This distinction was overlooked in

Sharpley.

                While this is not a criticism, the state asked this court to review an

overly narrow question that could not lead to a decision in its favor. This oversight

is understandable given the confusion created from the single sentence from

Sharpley, 8th Dist. Cuyahoga No. 106616, 

, concluding that an

offender is not eligible for community control under R.C. 2929.13(F)(8).

                The gist of the state’s disagreement with the panel’s conclusion

leading to this en banc proceeding focuses on the fact that a community control

sanction was imposed on the underlying offense in lieu of a prison term. The panel

determined that the trial court was authorized to impose a term of community

control despite the attendant firearm specification requiring a prison term.

                Whether a community control sanction can be imposed on the

underlying offense that includes an attendant firearm specification is not controlled

through R.C. 2929.13(F)(8). R.C. 2929.13(F)(8) does not authorize the imposition

of sentences.    That provision merely recognizes the mandatory nature of the

offender’s service of that sentence. The real question, at least the one the state would

like to have addressed, is whether a court is authorized to impose a community
control sanction at the sentencing hearing after determining that prison is required

for the attendant firearm specification. See State v. Hitchcock, 

,

, 

, ¶ 24 (absent a statutory basis for the imposition

of the sentence, the trial court is without authority to impose such a sentence).

                The answer to that real question likely lies elsewhere within the

Revised Code,5 but no other provision was cited in favor of the state’s position at any

time during this appeal. This limits the impact of the decision entered en banc and

by the panel. The panel’s conclusion with respect to determining that a community

control sanction may be imposed despite the fact that a prison term is required

arising from the same offense is not an issue that can be resolved within the en banc

proceeding given the arguments presented. The only conclusion that can be reached

is that R.C. 2929.13(F)(8) does not require the imposition of a prison term on the

underlying offense and the statement to the contrary in Sharpley, 8th Dist.

Cuyahoga No. 106616, 

, must be overruled.                  Although R.C.

2929.13(F)(8) does not require imposition of a prison term on the underlying

offense, that is not to say that the requirement does not exist elsewhere in the

Revised Code.




      5 See State v. Chandler, 

, 

 (8th Dist.) (the

defendant was convicted of two counts of felonious assault, each with a three-year firearm
specification under R.C. 2941.145 that must be served consecutive to each other under
R.C. 2929.14(B)(1)(g) and the underlying prison sentence under R.C. 2929.14(C)(1)(a)).
How could we get this wrong for so many years?

               Notwithstanding, if the majority view and analysis on the community

control sanction question is correct, one must ask: How could we, and other panels

from across the state, get this wrong for so many years? See Majority En Banc

Opinion at fn. 3.

               The applicable sentencing statutes have been amended so many times

that they are now virtually unreadable and, at times, indecipherable. Specifically,

the amendments to R.C. 2929.14 since the statute’s enactment in July 1996 are at

the root of today’s confusion. At one time, R.C. 2929.14 said exactly what the state

proposes regarding the requirement to impose a prison sentence on the underlying

offense for which a firearm specification applies:

      if an offender who is convicted of or pleads guilty to a felony is also
      convicted of or pleads guilty to a specification of the type described in
      … section 2941.145 of the Revised Code that charges the offender
      with having a firearm on or about the offender’s person or under the
      offender’s control while committing the offense … and using it to
      facilitate the offense, … the court, after imposing a prison term on
      the offender for the felony … shall impose an additional prison term,
      determined pursuant to this division.

(Emphasis added.) R.C. 2929.14(D)(1)(a)(i), effective 10-29-99.

               That passage is no longer in the statute. That express language was

winnowed down to two different firearm specifications starting with the version of

R.C. 2929.14 effective 3-22-2001.6 Through the various versions of R.C. 2929.14,


      6 R.C. 2929.13(F)(8) has existed in its current form through both versions of the

statute, although it has been renumbered. Thus, even under the older version in which a
prison term on the underlying offense was required, the statute was drafted so that only
however, the legislature codified what is now located in R.C. 2929.14(C)(1)(a), which

provides in pertinent part, “if a mandatory prison term is imposed upon an offender

pursuant to division (B)(1)(a) (firearm specifications) … the offender shall serve

any mandatory prison term imposed” thereunder “consecutively to and prior to any

prison term imposed for the underlying felony pursuant to division (A)” of R.C.

2929.14 (all degrees of felony offenses). This provision arguably touches on the

state’s concern.

Amenability

               One of the first considerations a trial judge makes in sentencing is

determining if an offender is, or is not, amenable to community control. State v.

Sobel, Sixth Dist. Fulton No. F-22-010, 

; State v. Vlad, 

, 

, 

 (7th Dist.).            With all of those

decisions, the primary question is whether the legislature authorized that particular

sentence. State v. Anderson, 

, 

, 

. “Before imposing sentence” for multiple offenses, “if the sentencing court

determines at the sentencing hearing that a prison term is necessary or required, the

court shall … [i]mpose a stated prison term.” R.C. 2929.19(B)(2)(a). Nothing

within that provision or anything under subdivision (B)(2)(b) requires the court to

determine whether prison was necessary on each individual felony or each




the prison term on the specification was mandatory. Yet the statute has been amended
and portions renumbered on over 40 occasions since 1996. The provisions in the statute
are a challenge to even the most experienced statute constructionist.
individual offense before requiring the court to impose a prison sentence. That

provision states in broad terms that before imposing sentence for the case, even if

that case involves multiple offenses, once the court determines that prison is

necessary, a prison sentence must be imposed.

                This interpretation stems from the Ohio Supreme Court’s conclusion

that “a court cannot impose a prison term and a community-control sanction for the

same offense.” Id. at ¶ 32. “[T]he sentencing statute does not allow a trial court to

impose both a prison sentence and community control for the same offense.”

(Emphasis added.) State v. Jacobs, 

, 

, 

 (8th Dist.). Instead, the trial court must “‘decide which sentence is

most appropriate — prison or community control sanctions — and impose

whichever option is deemed to be necessary.’” 

 quoting 

; see also

State v. Martin, 8th Dist. Cuyahoga No. 100723, 

.

               There is a strong precedent in our jurisprudence that an offender is

either amenable to community control, or not. There’s no middle ground. It is not

like anyone can say they are a “little pregnant.” Thus, where R.C. 2929.14 (B)(1)(a)

and 2929.13(F)(8) makes the specification mandatory time, R.C. 2929.14(C)(1)(a)

makes the prison term imposed on that specification consecutive to the prison term

imposed for the underlying felony offenses. The statute presumes a prison term has

been imposed on the underlying felony offense when a firearm specification is

involved, regardless of the level of that offense, and is silent as to any possibility of
community control sanctions. See, e.g., Chandler, 

, 

.

               Consideration of R.C. 2929.14(C)(1)(a) could arguably lead to the

conclusion that if a defendant must serve a prison term for the specification,

imposing community control on the underlying term is inherently inconsistent with

any amenability analysis.     But that is a question left unanswered given the

arguments presented to the panel and this court sitting en banc. It might very well

be one in need of an answer moving forward.

Conclusion

               The legislature has not provided the model of clarity for sentencing

considerations. It may well be time to revisit a thorough review and simplification

of the bloated sentencing statutes.

               Nevertheless, I believe we should certify a conflict between this case

and one of the conflicting cases from other districts outlined in footnote 3 of the

majority en banc opinion. I also believe the Supreme Court of Ohio should take this

issue to better address the relationship between mandatory prison terms on

specifications and the underlying offenses in the context of the overriding principles

of felony sentencing under R.C. 2929.11 and other relevant provisions in Title 29.

As a result of the foregoing considerations, I concur in judgment only with the

majority’s decision.
Merit Panel Decision

EILEEN A. GALLAGHER, J.:

   I.      Factual Background and Procedural History

                A Cuyahoga County Grand Jury indicted Logan in October 2021 for

several firearm-related offenses. Logan pleaded guilty in April 2022 to one count of

attempted having weapons while under disability, a fourth-degree felony. See R.C.

2923.02, 2923.13(A)(2), 2923.13(B).       The charge included a one-year firearm

specification under R.C. 2941.141(A) and a forfeiture specification.       The state

dismissed the remaining counts in the indictment.

                During Logan’s change-of-plea hearing, the trial court described the

possible penalties for the proposed plea as follows, in relevant part:

        Amended Count 1, attempted having weapons under disability, a felony
        of the fourth degree, punishable by a maximum of 18 months of
        incarceration and up to a $5,000 fine. There is also a one-year firearm
        specification, which is mandatory time, and that must be served prior
        to and consecutive to any time that may be imposed on the underlying
        charge.

        …

        With regards to a felony of the fourth degree, it is a rebuttable
        presumption with regards to community control, and if you were to be
        placed on community control, there could be sanctions for up to five
        years instead of prison.

        …

        The firearm specification for which you are pleading is regarded by law
        as an enhancement, and so therefore, the Court could consider, as well,
        placing you on community control on the felony of the fourth degree
        and still imposing that mandatory one-year firearm specification.
              The assistant prosecuting attorney then confirmed that she was

satisfied that the trial court had complied with Crim.R. 11 in conducting its plea

colloquy.

               On May 12, 2022, the trial court held a sentencing hearing. The

parties made arguments to the court, with each agreeing that Logan “has turned her

life around” since her last criminal case, taking steps to better her life by — among

other things — attending a career-training program. At the hearing, the assistant

prosecuting attorney said the following about the state’s recommended sentence:

      I don’t have to belabor her history. You have that in front of you in the
      [presentence-investigation report]. We have a one-year firearm
      specification in this case. I think we all know how this is going to end
      here today. The State of Ohio would defer to the Court when it comes
      to the underlying charge, the having weapons under disability.

               The trial court sentenced Logan to one year in prison on the firearm

specification and to two years of community control for the underlying felony. The

trial court imposed the mandatory prison term on the firearm specification prior

and consecutive to the two years of community control, ordering that Logan be

returned to the Cuyahoga County Corrections Center after she is released from

prison for the court to hold a hearing to advise her of her community-control

obligations “and make sure that she reports there and there are no lapses with

regards to time.”

               After announcing its sentence, the trial court engaged in the following

exchange with the assistant prosecuting attorney:

      THE COURT: Anything further, [assistant prosecuting attorney]?
         [ASSISTANT PROSECUTING ATTORNEY]: No, your Honor. Thank
         you.

                 The court published a sentencing journal entry. The original journal

entry did not specify that the mandatory prison term is to be served prior and

consecutive to the community-control term, an omission that was corrected through

a nunc pro tunc entry based on the original announcement of decision in this matter.

The state appealed the sentence under R.C. 2953.08(B)(2). The state raises one

assignment of error for review:

         The Trial Court erred by not imposing a prison sentence for
         [a]ttempted [h]aving weapons while under disability where the
         offender had a firearm on or about the offender’s person or under the
         offender’s control while committing the felony.7

   II.      Law and Analysis

         A. Standard of Review

                 We review felony sentences under the standard of review set forth in

R.C. 2953.08(G)(2). State v. Marcum, 

, 

, 

, ¶ 22–23. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce or otherwise modify a sentence or vacate a sentence and remand for

resentencing if it “clearly and convincingly” finds that (1) the record does not

support certain of the sentencing court’s findings or (2) the sentence is “otherwise

contrary to law.” “‘Clear and convincing evidence is that measure or degree of proof

… which will produce in the mind of the trier of facts a firm belief or conviction as


         7 The original announcement of decision, State v. Logan, 8th Dist. Cuyahoga No.

111533, 

, released April 6, 2023, is hereby vacated. This opinion is the
court’s journalized decision in this appeal.
to the facts sought to be established.’” State v. Franklin, 8th Dist. Cuyahoga No.

107482, 

, quoting Cross v. Ledford, 

, 

 (1954), paragraph three of the syllabus.

               The state did not object to Logan’s sentence in the trial court, so we

review the sentence only for plain error. See, e.g., State v. Dowdell, 8th Dist.

Cuyahoga No. 111026, 

, ¶ 8–9. That said, a sentence that fails to

impose a mandatory provision is contrary to law and a sentence that is imposed

contrary to law constitutes plain error. 

               Before turning to the parties’ arguments specific to this case, we

consider the statutes and caselaw relevant to the question presented by this appeal.

      B. Relevant Legal Background

             1. Criminal Offenses and Firearms Specifications

               First, we contrast criminal offenses from specifications that enhance

the penalty for those offenses.

               Attempting to have weapons while under disability is a criminal

offense, since doing so violates statutes of the Revised Code that “state a positive

prohibition … and provide a penalty for violation of such prohibition” — namely

R.C. 2923.02 and 2923.13(A)(2). See R.C. 2901.03(A) (“No conduct constitutes a

criminal offense against the state unless it is defined as an offense in the Revised

Code.”); R.C. 2901.03(B) (“An offense is defined when one or more sections of the

Revised Code state a positive prohibition or enjoin a specific duty, and provide a
penalty for violation of such prohibition or failure to meet such duty.”); see also

State v. Ford, 

, 

, 

, ¶ 10.

               A firearm specification, on the other hand, is not a criminal offense.

The statutes setting forth the specification and its punitive effect — R.C.

2929.14(B)(1)(a) and 2941.141(A) — do not contain a positive prohibition of

conduct. R.C. 2901.03(B), 2929.14(B)(1)(a) and 2941.141(A); see also Ford at ¶ 16

(analyzing the firearm specification and its punitive effect set forth in R.C. 2941.145

and 2929.14(D)). Instead, the specification provides that if a defendant pleads guilty

to a felony offense and, during the commission of that offense, if the defendant had

a firearm on or about her person or under her control, the defendant’s underlying

felony sentence will be increased by one year in prison. R.C. 2929.14(B)(1)(a); R.C.

2941.141(A); see Ford at ¶ 16. “Thus, the firearm specification is merely a sentencing

provision that requires an enhanced penalty upon certain findings.” Ford at ¶ 16.

“The purpose of a firearm specification is to enhance the punishment of criminals

who voluntarily introduce a firearm while committing an offense and to deter

criminals from using firearms.” State v. White, 

, 

,

.

               With this distinction in mind, we now consider the trial court’s

discretion to craft felony sentences.

             2. The Trial Court’s Discretion to Craft Felony Sentences

               A trial court has the statutory authority, in crafting a felony sentence,

to impose “any sanction or combination of sanctions on the offender that are
provided in sections 2929.14 to 2929.18 of the Revised Code” unless a specific

penalty is required to be imposed or is precluded from being imposed pursuant to

law, including in the circumstances described by R.C. 2929.13(E), (F) or (G). R.C.

2929.13(A).

               Attempted having weapons while under disability is a fourth-degree

felony. See R.C. 2923.02(E)(1), 2923.13(A)(2) and 2923.13(B). A fourth-degree

felony is punishable, under most circumstances, by a definite prison term of six,

seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen

or eighteen months. R.C. 2929.14(A)(4). A trial court may also “directly impose a

sentence that consists of one or more community control sanctions authorized

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code” in lieu of

imprisonment for a fourth-degree felony unless the court is required to impose a

prison term, a mandatory prison term or a term of life imprisonment on the

offender. R.C. 2929.15(A)(1).

               A trial court generally cannot, however, impose a term of

imprisonment and a term of community control on an offender for the same offense,

even when both types of penalty are authorized. State v. Anderson, 

, 

, 

 (“[W]hen a prison term and community

control are possible sentences for a particular felony offense, absent an express

exception, the court must impose either a prison term or a community-control

sanction or sanctions.”).
                Under many circumstances,8 a trial court must impose a prison term

on an offender who pleads guilty to a firearm specification described by R.C.

2941.141, 2941.144 or 2941.145. R.C. 2929.14(B)(1)(a). Here, Logan pleaded guilty

to a specification that she had a firearm on or about her person or under her control

while committing the offense of attempted having weapons while under disability.

R.C. 2929.141(A). Therefore, the presence of the firearm specification required the

trial court to impose a mandatory one-year prison term. R.C. 2929.14(B)(1)(a)(iii).9

                Having set forth the relevant legal background, we turn to the parties’

positions on the legality of Logan’s sentence.

       C. Analysis

                The state argues that the trial court was required to sentence Logan

to some term of imprisonment on the offense of attempted having weapons while

under disability. It asks us to find that the trial court’s community-control sentence

on that offense is contrary to law, vacate the sentence and remand the matter to the

trial court for resentencing on that offense.

                The state argues that R.C. 2929.13(F)(8) required that a mandatory

prison term be imposed on Logan for the underlying felony because Logan pleaded


       8 R.C. 2929.14(B)(1)(e), for example, describes circumstances in which the trial

court is not permitted to impose the mandatory prison sentences provided for firearms
specifications.
       9 The offense of having weapons while under disability is not enhanceable with a

sentence from a firearm specification unless “the offender previously has been convicted
of … any felony of the first … or second degree” and “[l]ess than five years have passed
since the offender was released from prison or post-release control, whichever is later, for
the prior offense.” R.C. 2929.14(B)(1)(e). Here, those circumstances were met.
guilty to a firearm specification. The state further asserts that community control

was not an authorized sentence for the underlying felony pursuant to R.C.

2929.15(A)(1), because the trial court was required to impose a term of

imprisonment on the offense.      Finally, the state argues that the trial court’s

sentence — which imposed a two-year term of community control for the underlying

felony consecutive and subsequent to a one-year term of imprisonment for the

specification — is an unlawful “split sentence” following Anderson, 

, 

, 

.

              To answer the question presented by this appeal, we must first

consider whether R.C. 2929.13(F)(8) required the trial court to sentence Logan to a

mandatory prison term on the underlying felony. Based on the decision of the en

banc court discussed above, we conclude that R.C. 2929.13(F)(8) did not require the

trial court to sentence Logan to a mandatory prison term on the offense of attempted

having weapons while under disability.

              We must now consider whether the Revised Code authorized the trial

court to sentence Logan to community control on the underlying offense while

imposing a mandatory prison term for the specification. The latter inquiry, in turn,

involves a consideration of whether Logan received an unlawful split sentence.

              The state argues that the trial court’s imposition of community

control on the underlying felony, to be served after a mandatory term of

imprisonment for the firearm specification, was an unlawful split sentence. It also
argues that community control was not available under R.C. 2929.15(A)(1) because

the court was required to impose a prison term on the offense.

               There is some support for the state’s argument. In State v. Ervin, a

panel of the Twelfth District considered a sentence imposed on a defendant for two

second-degree felonies, one of which carried a firearm specification. State v. Ervin,

, 

 (12th Dist.).        The trial court sentenced the

defendant to a mandatory three-year prison term for the gun specification and five-

year terms of community control on each of the underlying felony counts. 

 The

community-control penalties were to be served consecutively to and after the prison

term. 

 The defendant successfully completed her prison sentence but she

subsequently violated her community control; the trial court then imposed prison

terms on each of the underlying felony convictions and the defendant appealed. Id.

at ¶ 3. The appeals court reversed, holding that the trial court’s initial sentence was

an unlawful “blended sentence” and that a trial court has no authority to impose

consecutive community-control penalties following a prison term, with limited

exceptions. Id. at ¶ 23. In reaching this conclusion, the panel relied on this court’s

en banc decision in State v. Anderson, 

, 

 (8th Dist.)

and the Ohio Supreme Court’s opinion in Anderson, 

, 2015-Ohio-

2089, 

.

               Logan defends the sentence by arguing that the legislature

specifically authorized the sentence imposed on her by only requiring mandatory

prison time for the “portion” of a sentence attributable to a firearm specification.
Logan’s argument is essentially that the reference to a “portion” of a sentence in R.C.

2929.13(F)(8) presupposes that a trial court’s sentence on a felony enhanced by a

firearm specification can properly be divided into “portions,” with one portion

served in prison and the other on community control.

              This court has previously held that a trial court may impose

community-control sanctions on an underlying offense that does not require

imprisonment while imposing prison on an accompanying specification that does

require imprisonment. See State v. Hamm, 

, 

, ¶ 17

(8th Dist.) (underlying third-degree felony with a gang-activity specification under

R.C. 2929.14(G)).

               The panel in Hamm, which included then-Judge Melody J. Stewart,

disagreed with the exact argument put forth by the state here: because a trial court

must impose “either a prison term or community control sanctions on each

count” — (emphasis added) Anderson, 

, 

, 

, at ¶ 23 — and because a specification is completely dependent on the

existence of an underlying offense, “the offense plus the specification constitute ‘the

entire count’” and the trial court cannot impose both community control and

imprisonment for the same offense. Hamm at ¶ 6–8. In rejecting this argument,

the panel concluded that “imposing community control on an underlying offense

and prison on an accompanying specification does not implicate the ‘split sentence’

prohibition precisely because a specification is not part of the underlying offense but

merely a sentencing enhancement to that offense.” Id. at ¶ 9. Thus, “where a trial
court is not required to impose a prison sentence on the underlying felony, even

where prison is mandatory for the accompanying specification, a trial court may

impose community control sanctions on the underlying felony.” Id. at ¶ 16.

              The state acknowledges Hamm but argues that it is distinguishable

because it did not involve an offense for which a mandatory term was required under

R.C. 2929.13(F)(8), a reading of that statute which this court, sitting en banc,

rejected above. The state also asks us to reconsider Hamm, asserting that a sentence

of community control on a felony underlying a specification that mandates

imprisonment violates the split-sentence doctrine. We are persuaded to follow

Hamm’s reasoning and hold that community control was an authorized sentence on

the fourth-degree felony at issue here.

              The Supreme Court in Anderson noted that in the mid-1990s the

legislature ended the “regular practice” among trial courts of imposing and then

suspending prison sentences in favor of probation; since that legislative overhaul of

the sentencing statutes, prison terms and community-control penalties are now

“alternative sanctions.” See Anderson at ¶ 21–23, 28. Therefore, “as a general rule,

when a prison term and community control are possible sentences for a particular

felony offense, absent an express exception, the court must impose either a prison

term or a community-control sanction or sanctions.” Id. at ¶ 31. This court

described the line of Supreme Court cases addressing the “split-sentence doctrine”

since Anderson as follows:
      A court may also not impose a community-control sanction on one
      count consecutive to a prison term on another count absent statutory
      authority. State v. Hitchcock, 

, 

, 

, ¶ 25. However, the Supreme Court of Ohio has held that a
      court may impose both a prison term for one offense and a community-control term for another offense in the same case. State v. Paige, 

, 

, 

. The Paige Court
      went on to hold that the trial court could not impose what amounted to
      a consecutive term of commitment to a community-based correctional
      facility after release from prison. Id. at ¶ 13.

State v. Robinson, 8th Dist. Cuyahoga No. 110467, 

.

              We do not read these authorities to prohibit what the trial court did

here. The trial court, when sentencing Logan for the fourth-degree felony offense to

which she pleaded guilty, had the choice between imposing an authorized prison

term or imposing community-control sanctions; it chose community-control

sanctions. By virtue of the firearm specification, that sanction was enhanced by the

addition of one year in prison. We follow Hamm and hold that a trial court does not

violate the split-sentence doctrine by imposing a mandatory prison term for a

firearm specification prior and consecutive to community-control penalties on the

felony offense underlying the specification. See Hamm, 

, 

, at ¶ 16; Moore, 

, at ¶ 18 (E.T. Gallagher, J., concurring in

judgment only) (stating the opinion that the imposition of a mandatory prison term

for a firearm specification and community-control penalties on the underlying

felony does not constitute an improper “split sentence”).

              The final question we must address in this appeal is whether

community control is authorized under R.C. 2929.15(A)(1). “‘[T]he only sentence
which a trial judge may impose is that provided for by statute ….’” Anderson, 

, 

, 

, quoting State v. Beasley, 

, 

 (1984). Our resolution of this question flows

naturally from this court’s resolution of the two issues previously addressed.

              R.C. 2929.15(A)(1) states as follows, in relevant part:

      If in sentencing an offender for a felony the court is not required to
      impose a prison term, a mandatory prison term, or a term of life
      imprisonment upon the offender, the court may directly impose a
      sentence that consists of one or more community control sanctions
      authorized pursuant to [R.C. 2929.16, 2929.17, or 2929.18].

              As discussed above, the trial court was not required to impose a

prison term or a term of life imprisonment for the underlying fourth-degree felony

in this case and R.C. 2929.13(F)(8) does not require the imposition of a mandatory

prison term for the underlying offense either. The mandatory prison term for the

firearm specification was merely a sentencing enhancement. Therefore, the trial

court was authorized to impose community-control sanctions under R.C.

2929.15(A)(1). See Hamm at ¶ 16–17; Webb, 

, at 12–14

(Karpinski, J., concurring in judgment only).

              Having found that (1) based on the decision of this en banc court, R.C.

2929.13(F)(8) did not require the trial court to impose a mandatory prison term on

the offense of attempted having weapons while under disability; (2) the imposition

of community-control sanctions on that offense was not an unlawful split sentence,

notwithstanding that the trial court also imposed the mandatory term of

imprisonment required because of the firearm specification and (3) R.C.
2929.15(A)(1) authorized the trial court to impose community-control sanctions on

the underlying offense, we overrule the state’s assignment of error.

   III.     Conclusion

                 Having overruled the state’s sole assignment of error for the reasons

stated above, we affirm the judgment.

          It is ordered that the appellee recover from the appellant the costs herein

taxed.

          The court finds there were reasonable grounds for this appeal.

          It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

          A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



_________________________
EILEEN A. GALLAGHER, JUDGE

ANITA LASTER MAYS, A.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION)

MARY J. BOYLE, J., CONCURRING IN JUDGMENT ONLY:

                 I respectfully concur in judgment only with the majority opinion for

the reasons set forth above in the concurring in judgment only opinion to the en

banc decision.