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F2 Prison: Rebutting the Presumption in Ohio

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Here's one you don't see all the time. Ryan Milhoan was indicted on a dozen F2 Panderings and a dozen F4 Panderings. The former has a presumption in favor of prison and the latter does not. He was indicted 18 months after he was detained and interviewed by our local ICAC Task Force. He eventually pled guilty to 4 F2's and 4 F4's. The trial court did not impose the prison term on the F2's and gave the defendant a combination of community control sanctions. The State appealed the lack of prison on the 4 F2's.

This is an R.C. 2929.13(D)(2) case. F2's carry a presumption of prison unless the judge makes two specific findings on the record:

a. A combination of community control sanctions will adequately punish the offender and the recidivism risks are low

b. Community control would not demean the seriousness of the offense and this offense is less serious than conduct normally constituting the offense.

Apparently, the trial court did not make these findings on the record, the matter was reversed and remanded for re-sentencing. The question here is – assuming the trial judge goes back on the record and puts these findings on the record, does the State appeal for a second time arguing that his findings were not supported?