State v. Swiger

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[Cite as State v. Swiger, 2004-Ohio-6259.] COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsSAMUEL SWIGER Defendant-Appellant : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John F. Boggins, J. Case No. 04-COA-023 OPINION CHARACTER OF PROCEEDING: Civil appeal from the Ashland County Court of Common Pleas, Case No. 03-CRI-022 JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: NOVEMBER 19, 2004 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant ROBERT P. DESANTO ASHLAND COUNTY PROSECUTOR Suite 307, Orange Tree Square Ashland, OH 44805 DOUGLAS A. MILHOAN 610 Market Avenue North Canton, OH 44702 Ashland County, Case No. 04-COA-023 3 Boggins,J. {¶1} Appellant appeals his sentence entered in the Ashland County Court of Common Pleas on one count of Non-Support of Dependents. STATEMENT OF THE CASE {¶2} On February 26, 2003, the Ashland County Grand Jury indicted appellant Samuel Swiger on one count of Non-Support of Dependents, a felony of the fifth degree in violation of R.C. 2919.21(A)(2). {¶3} Appellant pled guilty to the charge and the trial court deferred sentencing and ordered a pre-sentence investigation report. {¶4} The court conducted the sentencing hearing on April 1, 2004. The trial court sentenced appellant to nine months in prison. {¶5} Appellant filed an appeal and this matter is now before this court for consideration. Appellant s assignments of error are as follows; ASSIGNMENTS OF ERROR {¶6} I. THE IMPOSITION OF A PRISON SENTENCE GREATER THAN THE MINIMUM TERM IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. {¶7} II. THE COURT ERRED IN RELYING UPON REVISED CODE SECTION 2929.13(B)(2)(b) AS THE BASIS FOR IMPOSING A PRISON TERM INSTEAD OF A COMMUNITY CONTROL SANCTION. I. Ashland County, Case No. 04-COA-023 4 {¶8} Appellant challenges the trial court's imposition of a prison sentence greater than the minimum term as being against the manifest weight of the evidence and contrary to law. {¶9} In its brief at 6, appellee concedes the sentence imposed in the case sub judice does not meet the mandates of State v. Comer, 99 Ohio St.3d 463, 2003-Ohio4165, in that the trial court failed pursuant to R.C. 2929.14(B), to make its statutorily enumerated findings and give reasons supporting those findings at the sentencing hearing. {¶10} Appellant s first assignment of error is sustained. II. {¶11} In his second assignment of error, Appellant claims that the trial court erred in ordering a prison term instead of community control sanctions. {¶12} Based on our ruling as to Assignment of Error I, we find Assignment of Error II to be moot. {¶13} The matter is reversed and remanded to the trial court for re-sentencing pursuant to Comer, supra. Ashland County, Case No. 04-COA-023 5 {¶14} The judgment of the Court of Common Pleas of Ashland County, Ohio is hereby reversed and remanded. By Boggins, J. Gwin, P.J., and Hoffman, J., concur _________________________________ _________________________________ _________________________________ JUDGES [Cite as State v. Swiger, 2004-Ohio-6259.] IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsSAMUEL SWIGER Defendant-Appellant : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 04-COA-023 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Ashland County, Ohio is hereby reversed and remanded. Costs to appellee. _________________________________ _________________________________ _________________________________ JUDGES

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