State v. Kennedy

[Cite as State v. Kennedy, 2023-Ohio-3078.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

No. 22AP-534

Plaintiff-Appellant, : (C.P.C. No. 14CR-514)

and

v. : No. 22AP-536

(C.P.C. No. 14CR-834)

Chelsie N. Kennedy, :

(REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on August 31, 2023

On brief: G. Gary Tyack, Prosecuting Attorney, and

Darren M. Burgess, for appellant. Argued: Darren M.

Burgess.

On brief: Steven Nolder, for appellee. Argued: Steven

Nolder.

APPEALS from the Franklin County Court of Common Pleas

LELAND, J.

{¶ 1} Plaintiff-appellant, State of Ohio, appeals from judgments of the Franklin

County Court of Common Pleas granting the motion for judicial release filed by defendant-

appellee, Chelsie N. Kennedy, in two cases.1 For the reasons that follow, we affirm.

I. Facts and Procedural History

{¶ 2} These appeals concern the operation of the R.C. 2929.20 judicial release

waiting period requirements where the sentencing judge orders the offender’s prison term

to run consecutively to a prison term previously imposed by another judge of the same

common pleas court in a separate case. In the instant cases, in 2014 appellee was charged,

1 These appeals were consolidated for review on September 7, 2022.

Nos. 22AP-534 and 22AP-536 2

under three different case numbers, with committing multiple armed robberies throughout

Franklin County. Appellee resolved each case by entering guilty pleas as follows.

{¶ 3} In Franklin C.P. No. 14CR-769, assigned to Judge Richard Sheward, appellee

pled guilty to 2 counts of robbery, felonies of the second degree, along with a firearm

specification. Judge Sheward sentenced her to 8 years’ incarceration on both counts to be

served concurrently to each other and consecutive to the 1 year firearm specification. The

prison sentence in case No. 14CR-769 thus totaled 9 years. Judge Sheward certified

appellee had 171 days of jail-time credit.

{¶ 4} A few months later, appellee also entered guilty pleas in Franklin C.P. Nos.

14CR-514 and 14CR-834, both assigned to Judge Timothy Horton. In case No. 14CR-514,

appellee pled guilty to 1 count of robbery as a second-degree felony, and Judge Horton

sentenced her to 5 years’2 incarceration for that crime. In case No. 14CR-834, appellee

pled guilty to 6 counts of robbery, all second-degree felonies, and a firearm specification.

Judge Horton sentenced her to a total of 6 years’ incarceration consisting of 5 years on each

count of robbery, to be served concurrently to each other, and a 1 year mandatory term for

the firearm specification to be served consecutively with and prior to the term imposed for

the robberies. Judge Horton ran the sentences imposed for case Nos. 14CR-514 and 14CR-

834 concurrently to each other, for a 6 year term, and consecutively to the 9 year term

previously imposed by Judge Sheward in case No. 14CR-769. Judge Horton’s sentencing

entries state the “total prison time is fifteen (15) years.” (Emphasis omitted.) (Jan. 9, 2015

Sentencing Entries at 2.) Judge Horton certified in his January 9, 2015 sentencing entries

that appellee had 158 days of jail-time credit.

{¶ 5} The record contains a Notice of New Calculation of Sentence dated

January 28, 2015 issued by the Ohio Department of Rehabilitation and Correction

(“ODRC”). It states appellee’s admission date was August 22, 2014 and indicates her

sentence across the 3 case numbers is “2 GUN+ 13.00 TERM” with 355 days of jail-time

credit for a calculated release date of August 27, 2028. (ODRC Notice at 1.)

2 The original sentencing entries in case Nos. 14CR-514 and 14CR-834 state a 6year term for each count of

robbery. Judge Horton resentenced appellee in January 2015 to correct her sentencing entries to state a 5 year

prison sentence in case No. 14CR-514 and, in case No. 14CR-834 a 5 year sentence for each count with a 1 year

firearm specification.

Nos. 22AP-534 and 22AP-536 3

{¶ 6} On October 25, 2021, appellee moved for judicial release, pursuant to R.C.

2929.203 in case Nos. 14CR-514 and 14CR-834, which had been reassigned to Judge Chris

Brown. In her motion, appellee argued she was an eligible offender under former R.C.

2929.20(C)(3), which permits an eligible offender serving an aggregated nonmandatory

prison term (or terms) of five years to file a motion for judicial release not earlier than the

date on which the offender served four years of the offender’s stated prison term or, if the

prison term includes a mandatory prison term, not earlier than four years after the

expiration of all mandatory prison terms.

{¶ 7} The state filed a memorandum contra appellee’s motion for judicial release

contending the motion was premature. Citing to R.C. 2929.01(FF) and State v. Smith, 2d

Dist. No. 20172, 2004-Ohio-3573, the state argued that a singular sentencing court imposes

a “stated prison term,” and that appellee’s eligibility for early release must be determined

by the two sentencing courts. (Memo Contra at 2, 4.) According to the state, appellee had

not yet served the nine-year sentence imposed by Judge Sheward in case No. 14CR-769 and

“will not have done so until January of 2023.” (Memo Contra at 2.) After appellee serves

the sentence in case No. 14CR-769, the state asserted she will need to then serve five years

of the six-year term imposed in case Nos. 14CR-514 and 14CR-834 since she has a

mandatory one-year term for the firearm specification. As a result, in the state’s view,

appellee will not be eligible to request judicial release until August 2027, inclusive of jail-

time credit. The state additionally contended the factors reflecting the seriousness of the

offense did not support early release.

{¶ 8} Appellee filed a supplemental memorandum in support of the motion for

judicial release on January 24, 2022 adding the argument that she also met the waiting

period in former R.C. 2929.20(C)(5), which permits an eligible offender serving an

aggregated nonmandatory prison term of more than 10 years to file a motion for judicial

3 Appellee applied for judicial release under the former version of R.C. 2929.20, which was effective March 22,

2019. A new version of R.C. 2929.20, effective April 6, 2023, adds, among other items, language pertaining to

state of emergency-qualifying offenders but otherwise is substantively the same on the issues pertinent to

these appeals. R.C. 2929.20(C)(3), (4), and (5), discussed in these appeals, are now renumbered as R.C.

2929.20(C)(1)(c), (d), and (e) in the current statute. Former R.C. 2929.20(A)(6) is now R.C. 2929.20(A)(8)

but is otherwise identical to the prior version. R.C. 2929.20(J) retains its numbering in the 2023 statute but

incorporates some language adjustments.

Nos. 22AP-534 and 22AP-536 4

release not earlier than the later of the date on which the offender has served one-half of

the offender’s stated prison term or the date specified in (C)(4) of the same section.

Appellee agreed the definition of “stated prison term” in R.C. 2929.01(FF)(1) means “the

entire sentencing package imposed by a single court.” (Supp. Memo. at 3.) However, she

argued the court in Smith did not consider the “interplay” of that definition with the judicial

release statute, which focuses on “aggregated” prison term or terms. (Supp. Memo. at 3.)

Applied to appellee’s cases, she contends her aggregate sentence is 15 years, 13 of which is

nonmandatory and 2 of which are mandatory. Therefore, in appellee’s view, because the

aggregated nonmandatory prison term is more than 10 years, former R.C. 2929.20(C)(5)

applies, and she is eligible under that section since she has served more than one-half the

total prison term.

{¶ 9} The state filed a combined motion to cancel the judicial release hearing and

response to appellee’s supplemental memorandum. The state noted that, on January 27,

2022, appellee’s motion for judicial release filed in case No. 14CR-769, which was since

reassigned to Judge David Young, had been denied. The state reiterated that appellee

would not complete her sentence in case No. 14CR-769 until January 2023, and that Judge

Horton ordered the sentences in case Nos. 14CR-514 and 14CR-834 to be served

consecutively to case No. 14CR-769. The state additionally cited to a recent case in the

Franklin County Court of Common Pleas where a judge denied a motion for judicial release

after holding it was not appropriate to calculate aggregate sentences across two separate

Franklin County trial courts to deem an offender eligible for release.

{¶ 10} On August 4, 2022, Judge Brown held a hearing on appellee’s motion for

judicial release as well as another motion she filed asking to withdraw her guilty pleas.

Following the hearing, on August 10, 2022, Judge Brown issued a decision and order

granting appellee’s motion for judicial release in case Nos. 14CR-514 and 14CR-834. He

determined the language of R.C. 2929.01(FF), former 2929.20(B), and former (C) to be “a

clear, plain, and an unambiguous expression of the General Assembly’s intent for a single

‘sentencing court’ to consider judicial release.” (Aug. 10, 2022 Decision at 5.) Judge Brown

adopted the reasoning of the Smith case, found “the instant cases constitute the sentence

of a single ‘sentencing court’ ” under the statute, and concluded appellee is eligible for

Nos. 22AP-534 and 22AP-536 5

judicial release under former R.C. 2929.20(A) and (C)(4). (Aug. 10, 2022 Decision at 5.)

After considering a pre-sentence investigation (“PSI”) and the institutional report summary

generated by ODRC, the court further determined judicial release to be appropriate under

former R.C. 2929.20(J). The court noted the decision “applie[d] to Case Nos. 14CR-514

and 14CR-834” and “has no impact on the sentence imposed in 14CR-769.” (Aug. 10, 2022

Decision at 8.) Decision and entries filed the following day under case Nos. 14CR-514 and

14CR-834 suspend appellee’s sentences and place appellee on community control for three

years. The entries indicate “the term of community control shall commence upon

[appellee’s] release from ODRC in Case No. 14CR-769.” (Emphasis omitted.) (Aug. 11,

2022 Decision and Entry at 1.)

{¶ 11} The state filed a timely notice of appeal.

II. Assignments of Error

{¶ 12} The state assigns the following two assignments of error for our review:

I. The trial court erred in granting the Appellee immediate

judicial release upon completion of her sentence in 14CR-769,

as she has not served her mandatory firearm specification nor

is she eligible to apply for release in either 14CR-514 or 14CR-

834.

II. The trial court did not make the necessary findings to release

a second degree felon.

III. Appellate Jurisdiction and Standard of Review

{¶ 13} The state may appeal, as a matter of right, a trial court’s decision to grant

judicial release to an offender sentenced for a felony of the first or second degree. State v.

Williams, 10th Dist. No. 10AP-55, 2010-Ohio-4519, ¶ 9, citing R.C. 2953.08(B)(3); State v.

Gilbert, 12th Dist. No. CA2022-02-021, 2022-Ohio-3387, ¶ 15. The standard of review

applied by an appellate court in reviewing a trial court’s decision to grant judicial release is

found in R.C. 2953.08(G)(2). State v. Nichter, 10th Dist. No. 18AP-230, 2019-Ohio-279,

¶ 18. Pursuant to R.C. 2953.08(G)(2), an appellate court may modify or vacate a sentence

on appeal if it determines by “ ‘clear[] and convincing[]’ ” evidence “ ‘[t]hat the record does

not support the sentencing court’s findings’ ” under relevant statutes or “ ‘[t]hat the

sentence is otherwise contrary to law.’ ” (Emphasis omitted.) Id., quoting R.C.

Nos. 22AP-534 and 22AP-536 6

2953.08(G)(2). “The standard of review for questions of statutory interpretation

is de novo.” Wayt v. DHSC, L.L.C., 155 Ohio St.3d 401, 2018-Ohio-4822, ¶ 15. State v.

Brown, 161 Ohio St.3d 276, 2020-Ohio-4623, ¶ 7, citing State v. Straley, 139 Ohio St.3d

339, 2014-Ohio-2139, ¶ 9.

IV. Analysis

{¶ 14} The state challenges the trial court’s decision and judgment granting

appellee judicial release in two ways: (1) by contending appellee is ineligible for judicial

release under former R.C. 2929.20(C), and (2) by asserting that, even if appellee was

eligible, the trial court failed to make the necessary findings under former R.C. 2929.20(J),

pertaining to offenders imprisoned for second-degree felonies, to permit judicial release.

As explained in detail below, the state has not demonstrated the trial court erred in either

regard.

A. First Assignment of Error – former R.C. 2929.20(C) waiting period

requirement

{¶ 15} “[C]ourts of common pleas do not have inherent power to suspend execution

of a sentence in a criminal case and may order such suspension only as authorized by

statute.” State v. Smith, 42 Ohio St.3d 60 (1989), paragraph one of the syllabus.

Accordingly, “the statutory authority for such suspension must be * * * strictly construed.”

Id. at 61; State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, ¶ 12.

{¶ 16} In its first assignment of error, the state contends appellee was ineligible for

judicial release at the time it was granted. Thus, the state submits the trial court’s

determination that appellee was an eligible offender was contrary to law pursuant to the

express language of former R.C. 2929.20. More precisely, the state argues the trial court

exceeded its statutory authority when it granted appellee judicial release and thus, it claims,

acted contrary to law.

{¶ 17} Our goal in reviewing one of Ohio’s criminal statutes—as it is with any other

statute—is “to give effect to the legislature’s intent.” Ayers v. Cleveland, 160 Ohio St.3d

288, 2020-Ohio-1047, ¶ 17. State v. Jordan, 89 Ohio St.3d 488, 491 (2000) (“[T]he

cornerstone of statutory construction and interpretation is legislative intention.”). “In

order to determine legislative intent it is a cardinal rule of statutory construction that a

Nos. 22AP-534 and 22AP-536 7

court must first look to the language of the statute itself.” Id. at 492. When the text of the

statute in question is plain and unambiguous, we must give effect to the legislature’s intent

by simply applying the law as written. State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-

2706, ¶ 12; State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 13, citing Sears v.

Weimer, 143 Ohio St. 312 (1944), paragraph five of the syllabus (stating, if a statute is not

ambiguous, “then we need not interpret it; we must simply apply it”). Indeed, “[t]o

interpret what is already plain is not interpretation, but legislation, which is not the

function of the courts, but of the general assembly.” Sears at 316. Conversely, if the statute

under review is ambiguous, a court may engage in statutory interpretation. Hairston at

¶ 11.

{¶ 18} In this case, we find the relevant provisions of former R.C. 2929.20 are not

ambiguous. Reading the plain text of the statute, we conclude the trial court did not act

contrary to law when it found appellee was an eligible offender under former R.C.

2929.20(C) and ordered her judicial release.

{¶ 19} R.C. 2929.20 authorizes a “sentencing court” to “reduce [an] eligible

offender’s aggregated nonmandatory prison term or terms through a judicial release.”

Former R.C. 2929.20(B). An “eligible offender” is defined, with exceptions not relevant

here, as “any person who, on or after April 7, 2009, is serving a stated prison term that

includes one or more nonmandatory prison terms.” Former R.C. 2929.20(A)(1)(a).

{¶ 20} An offender’s eligibility for judicial release is dictated by the duration of the

“aggregated nonmandatory prison term or terms” the offender is serving. Former R.C.

2929.20(C). Pursuant to former R.C. 2929.20(C), “[a]n eligible offender may file a motion

for judicial release with the sentencing court within [five defined] applicable periods.”

These include:

(1) If the aggregated nonmandatory prison term or terms is less

than two years, the eligible offender may file the motion at any

time after the offender is delivered to a state correctional

institution or, if the prison term includes a mandatory prison

term or terms, at any time after the expiration of all mandatory

prison terms.

(2) If the aggregated nonmandatory prison term or terms is at

least two years but less than five years, the eligible offender may

Nos. 22AP-534 and 22AP-536 8

file the motion not earlier than one hundred eighty days after

the offender is delivered to a state correctional institution or, if

the prison term includes a mandatory prison term or terms, not

earlier than one hundred eighty days after the expiration of all

mandatory prison terms.

(3) If the aggregated nonmandatory prison term or terms is five

years, the eligible offender may file the motion not earlier than

the date on which the eligible offender has served four years of

the offender’s stated prison term or, if the prison term includes

a mandatory prison term or terms, not earlier than four years

after the expiration of all mandatory prison terms.

(4) If the aggregated nonmandatory prison term or terms is

more than five years but not more than ten years, the eligible

offender may file the motion not earlier than the date on which

the eligible offender has served five years of the offender’s

stated prison term or, if the prison term includes a mandatory

prison term or terms, not earlier than five years after the

expiration of all mandatory prison terms.

(5) If the aggregated nonmandatory prison term or terms is

more than ten years, the eligible offender may file the motion

not earlier than the later of the date on which the offender has

served one-half of the offender’s stated prison term or the date

specified in [R.C. 2929.20](C)(4)[.]

Former R.C. 2929.20(C).

{¶ 21} A trial court is generally not empowered to reduce mandatory prison terms

through judicial release. Former R.C. 2929.20(B); former 2929.20(A)(6);

2929.14(B)(1)(a)(iii) and (b) (providing the one-year prison term imposed for having a

firearm on or about the offender’s person or under the offender’s control while committing

a felony “shall not be reduced pursuant to [R.C.] 2929.20.”); Ohio Adm.Code 5120-2-

03.1(K). And, except in certain serious medical situations defined by statute, a trial court

does not have authority to grant judicial release on a motion filed before the applicable time

periods in former R.C. 2929.20(C), and the judgment doing so must be reversed. State v.

Chike, 9th Dist. No. 14CA010664, 2015-Ohio-3278, ¶ 6 (“Because Mr. Chike moved for

judicial release [under former R.C. 2929.20(C)(4)] before he had completed five years of

his sentence, we conclude that the trial court did not have authority to grant his motion.”).

Nos. 22AP-534 and 22AP-536 9

{¶ 22} Paramount to a judicial release ruling, then, is whether an offender is eligible

to receive it. In evaluating an offender’s eligibility for judicial release, a reviewing court

must determine the duration of both the offender’s “aggregated nonmandatory prison term

or terms” and “stated prison term.” “Aggregated nonmandatory prison term or terms” is

defined as “the aggregate of”: “(a) [a]ll nonmandatory definite prison terms,” and “(b) all

nonmandatory minimum prison terms imposed as a part of [a] non-life felony indefinite

prison term or terms.” Former R.C. 2929.20(A)(6). A “[s]tated prison term” is “the prison

term, mandatory prison term, or combination of all prison terms and mandatory prison

terms imposed by the sentencing court” inclusive of jail-time credit. Former R.C.

2929.01(FF)(1). Although R.C. 2929.20 authorizes judicial release by the “sentencing

court,” the statute does not expressly define the meaning of that term for the purposes of

R.C. 2929.20. (See Dissent at ¶ 47.)

{¶ 23} In this case, the state first contends the trial court erred in failing to sever the

prison term imposed by Judge Sheward from those imposed by Judge Horton for purposes

of calculating the “aggregated nonmandatory prison term or terms” and in not then

applying the former R.C. 2929.20(C)(3) waiting period requirement. The state cites to

State v. Strunk, 12th Dist. No. CA2012-03-023, 2012-Ohio-5013, and Smith, 2004-Ohio-

3573, for the proposition that “[w]hen separate courts impose separate prison terms upon

the same defendant, those separately stated prison terms are not aggregated to determine

a defendant’s eligibility for judicial release in all cases.” (State’s Brief at 10.) In the state’s

view, appellee’s aggregated nonmandatory prison term imposed by Judge Horton in case

Nos. 14CR-514 and 14CR-834 totaled five years, and therefore she was required to wait to

file for judicial release “not earlier than the date on which the eligible offender has served

four years of the offender’s stated prison term or, if the prison term includes a mandatory

prison term or terms, not earlier than four years after the expiration of all mandatory prison

terms.” Former R.C. 2929.20(C)(3).

{¶ 24} Appellee contends the judicial release statute defines “aggregated

nonmandatory prison term or terms” in former R.C. 2929.20(A)(6) to mean the aggregate

of “all” nonmandatory prison terms and, therefore, in accord with that clear language the

waiting period threshold requirements in former R.C. 2929.20(C) should account for all of

Nos. 22AP-534 and 22AP-536 10

her nonmandatory prison terms. Through this route, former R.C. 2929.20(C)(5) would

apply since her aggregated nonmandatory prison term or terms is “more than ten years,”

and that section allows an offender to file the motion not earlier than the later of the date

on which: (1) the offender has served one-half of the offender’s stated prison term, (2) the

eligible offender has served five years of the offender’s stated prison term, or (3) if the

prison term includes a mandatory prison term or terms, not earlier than five years after the

expiration of all mandatory prison terms. Former R.C. 2929.20(C)(5), incorporating

former (C)(4).

{¶ 25} The dissent infers that “the sentencing court,” as used in former R.C.

2929.20, “only can mean the court that imposed the ‘aggregated nonmandatory prison

term or terms’ that the offender seeks to reduce.” (Emphasis sic.) (Dissent at ¶ 47.) Thus,

the dissent concludes that “the ‘aggregated nonmandatory prison term or terms’ [must]

only include[] prison terms imposed by the sentencing court receiving the judicial release

request.” (Emphasis sic.) (Dissent at ¶ 47.)

{¶ 26} In the absence of any statutory provision stating as much, we do not believe

R.C. 2929.20 mandates the inferences relied on by the state and the dissent. An offender’s

eligibility is determined by calculating the “aggregate of” “[a]ll nonmandatory definite

prison terms” being served by that offender. (Emphasis added.) Former R.C.

2929.20(A)(6)(a). Nothing in the controlling statutory provisions suggest a different

meaning for “nonmandatory prison term or terms” when an offender is serving multiple

nonmandatory prison sentences that were imposed in different cases by different presiding

trial court judges.4 We are not convinced that the General Assembly’s use of “sentencing

court” was intended to modify the express definition of “aggregated nonmandatory prison

term or terms.” Indeed, we note that, several subsections of R.C. 2929.20 refer, without

any apparent intended distinction, to a “court”—not a “sentencing court.” See, e.g., former

R.C. 2929.20(E) and (H). By its plain and ordinary meaning, former R.C. 2929.20(A)(6)

4 We note that, while having the same judge who originally sentenced an offender later assess his or her judicial

release motion may be ideal, judges are already tasked with reviewing a motion for judicial release filed by an

offender who was originally sentenced by another judge. These cases serve as a prime example: neither Judge

Horton nor Judge Sheward ultimately assessed appellee’s motions for judicial release. We see no reason to

limit the threshold timing requirement for judicial release based on concerns with judges’ ability to evaluate

an offender they did not originally sentence.

Nos. 22AP-534 and 22AP-536 11

expresses the legislature’s intent to base an eligible offender’s judicial waiting period

requirement on the sum of nonmandatory prison terms imposed by the sentencing court.

{¶ 27} The choice of the legislature to define former R.C. 2929.20(A)(6) as the

aggregate of “all” nonmandatory prison terms comports with both how consecutive prison

terms are served and with case law discouraging piecemeal motions for judicial release.

Where consecutive sentences are imposed, the offender serves those prison terms in the

aggregate. Ohio Adm.Code 5120-2-03.1(F) (“When consecutive stated prison terms are

imposed, the term to be served is the aggregate of all of the stated prison terms so

imposed.”); R.C. 5145.01 (stating “[i]f sentenced consecutively, * * * the prisoner shall be

held to be serving one continuous term of imprisonment”); ODRC Notice at 1 (indicating

appellee’s sentence across the three case numbers is “2 GUN+ 13.00 TERM”). Ohio courts

have repeatedly discouraged offenders from filing motions for judicial release “at the outset

of each sentence in a string of consecutive sentences” and instead have held the position

that consecutive sentences be viewed in the aggregate when it comes to judicial release.

State v. Anderson-Melton, 2d Dist. No. 18703 (Nov. 9, 2001). See, e.g., Chike at ¶ 2, 4-6

(determining meaning of “aggregated nonmandatory prison term or terms” under former

R.C. 2929.20 to mean the aggregated prison term of all terms from two cases, not the

aggregate term imposed separately on each case, and disallowing offender’s attempt to

apply for judicial release based on one case); Anderson-Melton (“In our view, the [former]

R.C. 2929.20(B)(1) provision for judicial release, when read in conjunction with [the

statutory definition of ‘stated prison term’], clearly does not allow for the filing of motions

for judicial release at the outset of each sentence in a string of consecutive sentences. It

expressly provides that a combination of prison terms, such as a series of consecutive

sentences, be treated as one ‘stated prison term,’ not as multiple terms. * * * Although the

legislature could have chosen to provide a mechanism whereby those serving consecutive

sentences could file a motion for judicial release after some of the sentences had been

served, rather than at the outset, it has not done so.”); State v. Powell, 9th Dist. No. 26715,

2013-Ohio-5561, ¶ 8 (affirming trial court decision determining which former R.C.

2929.20(C) waiting period to apply based on the aggregate of two sentences imposed

consecutively under different case numbers); State v. Gipson, 6th Dist. No. OT-21-001,

Nos. 22AP-534 and 22AP-536 12

2022-Ohio-2069, ¶ 18, discretionary appeal not allowed, 167 Ohio St.3d 1513, 2022-Ohio-

3135 (totaling nonmandatory sentences in three cases to find former R.C. 2929.20(C)(4)

applied); State v. Weber, 5th Dist. No. 12CA85, 2013-Ohio-1700, ¶ 16 (holding an offender

did not yet qualify for judicial release after finding the series of consecutive sentences

should be treated as one instead of multiple terms for purposes of judicial release).

{¶ 28} Therefore, with these considerations in mind, applying former R.C.

2929.20(C) in this case reveals no cause to reverse the trial court’s determination on the

threshold timing issue. The parties do not dispute Judge Horton is “the sentencing court”

for purposes of resolving appellee’s motion for judicial release in case Nos. 14CR-514 and

14CR-834. Judge Horton ordered the prison terms for case Nos. 14CR-514 and 14CR-834

to run consecutively to case No. 14CR-769 and stated his intention to establish “total prison

time is fifteen (15) years.” (Emphasis omitted.) (Jan. 9, 2015 Sentencing Entries at 2.)

Neither party has challenged the validity of Judge Horton’s imposition of consecutive

sentences or the mandatory time imposed. Since under former R.C. 2929.20(A)(6) the

aggregate of “all” of appellee’s nonmandatory prison terms is more than ten years, former

R.C. 2929.20(C)(5) applies, and the state does not argue appellee otherwise fails to meet

the timing requirement under this provision. Considering the plain language of former R.C.

2929.20, persuasive caselaw treating consecutive sentences in the aggregate for purposes

of judicial release, and Judge Horton’s sentencing entry in this case, the state has not

affirmatively demonstrated the trial court erred in determining appellee met the threshold

timing requirement in former R.C. 2929.20(C). State v. Sims, 10th Dist. No. 14AP-1025,

2016-Ohio-4763, ¶ 11 (“[T]he burden of affirmatively demonstrating error on appeal” rests

with the appellant.); Bond v. Canal Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945,

¶ 16 (“It is the duty of the appellant, not the appellate court, to construct the legal arguments

necessary to support the appellant’s assignments of error.”); App.R. 9, 12(A)(1)(b), and

16(A)(7).

{¶ 29} The state next contends appellee is ineligible for judicial release since “she

has not served her mandatory firearm specification.” (State’s Brief at v.) Contrary to the

state’s position, we do not find support for overturning the trial court’s grant of judicial

release on this basis in the revised code, the administrative code, or caselaw reviewing

Nos. 22AP-534 and 22AP-536 13

similar issues. First, “[i]n determining the order in which consecutive sentences should be

served,” appellate courts “look first to the language of the trial court’s judgment.” State v.

Collins, 2d Dist. No. 27939, 2018-Ohio-4760, ¶ 20. See also State v. Kish, 8th Dist. No.

99895, 2014-Ohio-699, ¶ 12 (finding it is “imperative that a trial court’s sentencing journal

entry is unambiguous and clearly sets forth the sequence in which consecutive sentences

are to be served, especially when sentencing on multiple cases”), citing State v. Holdcroft,

137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 2-3, 10, overruled in part on other grounds; State

v. Cvijetinovic, 8th Dist. No. 99316, 2013-Ohio-5121, ¶ 21. Furthermore, we note some

appellate courts have held that when a trial court’s sentencing entries are ambiguous, in

that they fail to clearly set forth the sequence in which consecutive sentences imposed in

multiple cases are to be served, any ambiguity regarding the order that multiple case

sentences are to be served should be construed in the defendant’s favor. See, e.g., Collins at

¶ 20; State v. Beverly, 2d Dist. No. 2015-CA-71, 2018-Ohio-2116, ¶ 10; Cvijetinovic at ¶ 22-

26; State v. Broughton, 6th Dist. No. L-06-1213, 2007-Ohio-5312, ¶ 14.

{¶ 30} In this case, the sentencing entries in case Nos. 14CR-514 and 14CR-834 (e.g.,

Judge Horton’s cases) provide for the prison sentences imposed in those two cases to be

served concurrent with each other “and consecutive to case No. 14CR-769.” (Emphasis

omitted.) As would be expected, the sentencing entry in case No. 14CR-769 (e.g., the Judge

Sheward case) makes no reference to the prison sentences subsequently imposed by Judge

Horton in the two later-indicted cases. Of note, the sentencing entry in case No. 14CR-834

ordered the mandatory one-year prison sentence imposed for the firearms specification “be

served consecutively with and prior to the sentence imposed.” (Emphasis omitted.)

However, that sentencing entry does not clearly or unambiguously set forth the sequence

the consecutive sentences are to be served. In such absence, consistent with the Collins and

Kish line of cases, it is most logical for appellee to serve all mandatory prison sentences

first. Support for this construction is found in Ohio law and the administrative code.

{¶ 31} For example, where consecutive prison terms are imposed and include

firearm specifications, the relevant legal provisions require the offender to serve the

aggregate of the specifications followed by the aggregate of the nonmandatory prison terms.

Nos. 22AP-534 and 22AP-536 14

See Ohio Adm.Code 5120-2-03.1(M)5 (“When an offender is serving any stated prison terms

consecutively * * * to any one, three, five and/or six-year mandatory prison terms imposed

pursuant to [R.C. 2929.14(B)(1)(a)] for using a firearm in the commission of an offense * * *

the aggregate of all such one, three, five and/or six-year mandatory prison terms shall be

served first. Then, consistent with [R.C. 2929.14(C)], the aggregate of all other mandatory

definite prison terms shall be served, then the aggregate of the non-mandatory portion of

the definite stated prison terms shall be served, then the mandatory non-life felony

indefinite prison terms, then the non-life felony indefinite terms, and then the aggregate of

the life terms of imprisonment shall be served.”); R.C. 2929.14(C)(1)(a) (“[I]f a mandatory

prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for

having a firearm on or about the offender’s person or under the offender’s control while

committing a felony, * * * the offender shall serve any mandatory prison term imposed * * *

consecutively to any other mandatory prison term imposed under either division * * *

consecutively to and prior to any prison term imposed for the underlying felony * * * and

consecutively to any other prison term or mandatory prison term previously or

subsequently imposed upon the offender.”).

{¶ 32} Consistent with these legal provisions, the state argues “[t]he two mandatory

one year terms for the firearm specifications must be served consecutively to each other,

and prior to the [a]ppellee’s initial eight year prison term imposed by Judge Sheward. * * *

Only then comes the [a]ppellee’s stated [prison] term imposed by Judge Horton” and the

state similarly maintains the firearm sentences are “required to be served consecutively to

each other, and prior to the rest of the [a]ppellee’s sentences.” (Emphasis added.) (State’s

Brief at 17; 6.) By adhering to this position, the state tacitly agrees appellee has already

served the two mandatory firearm specifications. By doing so, the state undercuts its own

assignment of error, which is based in part on appellee having “not served her mandatory

firearm specification.” (State’s Brief at v.)

{¶ 33} Thus, while the state is correct that mandatory time affects the timing

requirements in former R.C. 2929.20(C) and could preclude judicial release in some cases,

5 We note the version of Ohio Adm.Code 5120-2-03.1(M) in place at the time of Judge Horton’s sentencing

included slightly different wording immaterial to the instant appeal.

Nos. 22AP-534 and 22AP-536 15

the state has nevertheless not shown appellee is ineligible due to unserved mandatory time

here. As a result, on this record, the state failed to meet its burden to affirmatively

demonstrate error regarding unserved mandatory time to support reversing the trial court

judgments. Sims at ¶ 11; Bond at ¶ 16; App.R. 9, 12(A)(1)(b), and 16(A)(7).

{¶ 34} This court is bound by the statutes and code provisions as enacted by the Ohio

legislature. Under the plain and unambiguous language of these provisions, we conclude

that: (1) for the purposes of calculating judicial release eligibility under former R.C.

2929.20(C), “aggregated nonmandatory prison term or terms” includes all nonmandatory

prison terms imposed in all consecutively imposed multiple case sentences and, therefore,

former R.C. 2929.20(C)(5) applies and is satisfied in this case, and (2) appellee is not

ineligible for judicial release due to unserved mandatory time. While we recognize the

logistical issues that may arise in light of our construction of R.C. 2929.20(C)—for instance,

where a defendant is serving consecutive prison sentences imposed by multiple county

courts—we have no authority to rewrite the statutes that bring out this plain meaning

construction. As the Supreme Court of Ohio has repeatedly and recently explained,

“ ‘[b]ecause the General Assembly is the final arbiter of public policy, judicial policy

preferences may not be used to override valid legislative enactments.’ ” State v. Bortree,

170 Ohio St.3d 310, 2022-Ohio-3890, ¶ 20, quoting State ex rel. Tritt v. State Emp.

Relations Bd., 97 Ohio St.3d 280, 2002-Ohio-6437, ¶ 17. We are thus duty bound to apply

the laws as they are written.

{¶ 35} Having found the trial court did not act contrary to law, we find the state has

failed to show the trial court erred in determining appellee was eligible for judicial release

in case Nos. 14CR-514 and 14CR-834. Furthermore, because the trial court’s decision to

grant judicial release in case Nos. 14CR-514 and 14CR-834 did not impact the sentence

imposed in case No. 14CR-769—over which the granting trial court judge was not

presiding—we expressly limit our holding to the circumstances presented in this case.6

6 We do not purport to address the propriety of, for instance, a trial court judge aggregating nonmandatory

prison terms imposed in multiple cases by different presiding judges for the purpose of calculating judicial

release eligibility and then granting judicial release so as to impede the defendant’s service of a prison sentence

imposed in a different case by a different presiding judge. In this case, Judge Brown’s decision granting judicial

release in case Nos. 14CR-514 and 14CR-834 will have no impact on appellee’s service of the prison sentence

imposed in case No. 14CR-769.

Nos. 22AP-534 and 22AP-536 16

Accordingly, for all the above stated reasons and on the facts of this case, the state’s first

assignment of error is overruled.

B. Second Assignment of Error – Former R.C. 2929.20(J) findings

{¶ 36} The state’s second assignment of error asserts the trial court failed to make

the necessary findings under former R.C. 2929.20(J) to release an offender convicted of

second-degree felonies. The version of R.C. 2929.20(J) considered by the trial court stated:

(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 [R.C. 2929.12], 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.

Thus, “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.

Nichter, 10th Dist. No. 15AP-40, 2015-Ohio-3489, ¶ 7, citing State v. Walker, 10th Dist. No.

14AP-181, 2014-Ohio-4586, ¶ 8, citing State v. Riley, 10th Dist. No. 00AP-599 (Oct. 31,

2000).

{¶ 37} The state argues the trial court did not make the necessary statutory findings

in this case. We note the state does not argue the record does not support the findings, but

Nos. 22AP-534 and 22AP-536 17

instead contends “[a]t no point during the hearing or in its [d]ecision and [o]rder did the

trial court specify the findings as to the adequacy of the punishment and the seriousness of

the [a]ppellee’s offenses as required under [former] R.C. 2929.20(J)(1)(a) and (b).” (State’s

Brief at 20-21.) We disagree.

{¶ 38} The trial court in this case expressly considered the PSI reports ordered in all

three cases and the institutional report summary in addition to the argument of counsel in

motions, memorandums, and at the hearing. The trial court discussed appellee’s long

history of positive behavior in prison, including having only minor infractions over eight

years and the many classes and programs appellee completed. The trial court then stated

it “considered the seriousness and recidivism factors in R.C. 2929.12, as required by R.C.

2929.20(J).” (Aug. 10, 2022 Decision at 6.) The trial court continued:

The Court finds the factors indicating the offenses were more

serious are outweighed by the factors indicating these offenses

were less serious under R.C. 2929.12(B) and (C). Specifically,

the Court finds the victims did not suffer serious physical or

economic harm during these offenses. The Court finds any

mental or emotional harm suffered by the victims was not

exacerbated by the age or physical or mental condition of the

victims. The Court finds [appellee] did not hold a position of

trust in the community, and did not hold or abuse an elected

position or other occupation to facilitate the offenses.

Although the Court finds the offenses were committed as part

of an organized criminal activity under R.C. 2929.12(B)(7), the

Court finds [appellee’s] conduct is not as serious compared to

the conduct of the co-defendant Richard Mayes. In each

robbery offense, [appellee] was the driver while Mayes was the

person who entered the businesses and held the firearm during

the robberies. Although this does not excuse [appellee’s]

conduct, or her complicity in committing these robberies, it

demonstrates grounds to mitigate her conduct. Furthermore,

the Court finds [appellee’s] actions were motivated by heroin

addiction, which similarly constitutes grounds that mitigate

her conduct without rising to the level of a defense.

In considering the recidivism factors under R.C. 2929[.12](D)

and (E), the Court finds [appellee] had not been adjudicated a

delinquent child, had a single conviction for a misdemeanor of

the fourth degree (M4), led a law-abiding life for a significant

Nos. 22AP-534 and 22AP-536 18

number of years prior to the offenses, and the offense occurred

under circumstances not likely to recur.

The Court further finds [appellee] has demonstrated genuine

remorse for her offenses. These factors are demonstrated in the

presentence reports, and in the numerous classes and

programs she has completed while incarcerated.

(Aug. 10, 2022 Decision at 6-7.) In this court’s view, and unlike the cases cited by the state,

the trial court in this case made findings under both the seriousness and recidivism

provisions in former R.C. 2929.20(J)(1)(a) and (b) with reference to relevant factors in R.C.

2929.12(B), (C), (D), and (E). While the state may disagree with the result in this case, the

state’s argument that the trial court failed to make sufficient findings under R.C. 2929.20(J)

is unpersuasive.

{¶ 39} The state appears to additionally argue that the trial court improperly

considered evidence of appellee’s remorse and rehabilitation. However, remorse and

rehabilitation are relevant considerations in determining the likelihood of recidivism.

Former R.C. 2929.20(J)(1)(a); 2929.12(E)(5) (stating the sentencing court shall consider,

in addition to other factors, “[t]he offender shows genuine remorse for the offense” and

“and any other relevant factors, as factors indicating that the offender is not likely to

commit future crimes”). The state has not demonstrated error in this regard.

{¶ 40} Finally, although the state contends, without citing legal support, that the

trial court was not permitted to consider the equity of appellee’s sentence compared to her

co-defendant’s sentence, it does not appear the trial court based its determination to grant

judicial release on equity. The trial court did ask the state about the “disparate” sentences

during the hearing, and the state clarified that argument pertained to whether a manifest

injustice occurred relevant to the pending motion to withdraw her guilty plea. (Tr. at 9.)

In its decision reviewing the appropriateness of judicial release under former R.C.

2929.20(J), the trial court did not discuss equity considerations concerning the co-

defendant’s sentences. Instead, after finding appellee committed the offense for hire or “as

a part of an organized criminal activity” pursuant to R.C. 2929.12(B)(7), the trial court

noted appellee’s conduct was less serious than her co-defendant’s conduct as evidence

mitigating this factor. (Aug. 10, 2022 Decision at 7.) The state has not demonstrated to do

Nos. 22AP-534 and 22AP-536 19

so was error, and the trial court was permitted to consider “any other relevant factors, as

indicating that the offender’s conduct is less serious than conduct normally constituting the

offense.” R.C. 2929.12(C).

{¶ 41} Therefore, considering all the above, we find the trial court made the

necessary findings under former R.C. 2929.20(J) pertaining to an eligible offender

imprisoned for second-degree felonies to support its determination to grant a judicial

release. We do not find the trial court’s findings and analysis to be contrary to law under

R.C. 2953.08(G)(2), as implied by the state, to support reversal on appeal. The state’s

second assignment of error asserting the contrary position lacks merit, and accordingly, is

overruled.

V. Conclusion

{¶ 42} Having overruled the state’s two assignments of error, the judgments of the

Franklin County Court of Common Pleas are affirmed.

Judgments affirmed.

EDELSTEIN, J., concurs.

LUPER SCHUSTER, J., dissents.

LUPER SCHUSTER, J., dissenting.

{¶ 43} Because I would reverse the judgments of the trial court granting appellee

Kennedy’s request for judicial release, I respectfully dissent.

{¶ 44} At issue is whether Kennedy was eligible for judicial release, pursuant to R.C.

2929.20, when she applied for that relief on October 25, 2021. The majority finds the state

fails to demonstrate the trial court erred in granting the requested judicial release. I

disagree.

{¶ 45} As the majority details, in Franklin C.P. No. 14CR-769 (“Sentencing 1”),

Judge Richard Sheward sentenced Kennedy to an eight year prison term on each of the two

counts of robbery, to be served concurrently, and a one year mandatory prison term for a

firearm specification, to be served consecutively to the sentence for the robbery counts.

Separately, and approximately two months later, in Franklin C.P. Nos. 14CR-514 and 14CR-

834 (“Sentencing 2”), Judge Timothy Horton sentenced Kennedy to a total of six years in

Nos. 22AP-534 and 22AP-536 20

prison, with concurrent five year sentences for each of the six counts of robbery, and a one

year mandatory term for a firearm specification, to be served consecutively to the term

imposed in Sentencing 1. The dispute in this appeal centers on whether the nonmandatory

prison terms imposed on different dates by different judges in different sentencing

proceedings can be combined to satisfy the waiting period required to file for judicial

release under former R.C. 2929.20(C)(5).

{¶ 46} I agree with the majority that “former R.C. 2929.20(A)(6) expresses the

legislature’s intent to base an eligible offender’s judicial waiting period requirement on the

sum of nonmandatory prison terms imposed by the sentencing court.” But I disagree with

the majority that this statute allows the nonmandatory prison term imposed in Sentencing

1 to combine with the nonmandatory prison term imposed in Sentencing 2 for the judicial

release eligibility calculation.

{¶ 47} Based on my reading of the applicable statutes, the trial court erroneously

combined Kennedy’s prison sentences in determining her judicial release eligibility. R.C.

2929.20(B) authorizes “the sentencing court” to reduce the “aggregated nonmandatory

prison term or terms” of an “eligible offender.” A “stated prison term” means “the prison

term, mandatory prison term, or combination of all prison terms and mandatory prison

terms imposed by the sentencing court” inclusive of jail-time credit. Former R.C.

2929.01(FF)(1). “Aggregated nonmandatory prison term or terms” means “the aggregate

of”: (1) “[a]ll nonmandatory definite prison terms,” and (2) “all nonmandatory minimum

prison terms imposed as a part of [a] non-life felony indefinite prison term or terms.”

Former R.C. 2929.20(A)(6). Although “the sentencing court” is not expressly defined for

the purpose of R.C. 2929.20, the term only can mean the court that imposed the

“aggregated nonmandatory prison term or terms” that the offender seeks to reduce. Thus,

the “aggregated nonmandatory prison term or terms” only includes prison terms imposed

by the sentencing court receiving the judicial release request.

{¶ 48} Although the prison term imposed in Sentencing 2 was ordered to run

consecutive to the prison term imposed in Sentencing 1, the court in Sentencing 2 did not

impose the sentence in Sentencing 1. That is, the sentencing court in Sentencing 2 was not

also the sentencing court in Sentencing 1. Thus, in my view, the trial court, in the matter

Nos. 22AP-534 and 22AP-536 21

appealed, erroneously considered the prison sentence imposed in Sentencing 1 in

determining Kennedy’s eligibility for judicial release. Without that sentence being included

in the “aggregated nonmandatory prison term or terms” time calculation, Kennedy was

ineligible for judicial release. On this basis, I would find the trial court erred in granting

Kennedy’s request for judicial release. Therefore, I would sustain the state’s first

assignment of error and render its second assignment of error moot.

{¶ 49} For these reasons, I respectfully dissent.

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