Summary
In State v. McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1, the Ohio Supreme Court described the two situations in which an appellate court may act under R.C. 2953.08(G)(2) in terms of an "and/or" proposition instead of the disjunctive used in Brandenburg. That distinction is not a material one in light of the fact that the "and/or" phrase retains the possibility of two positions being in the alternative.
Summary of this case from State v. JonesOpinion
No. 2015–1596.
05-17-2016
The STATE of Ohio, Appellee, v. McGOWAN, Appellant.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee. James W. Armstrong, Akron, for appellant.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee.
James W. Armstrong, Akron, for appellant.
{¶ 1} In State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, we held that R.C. 2953.08(G)(2) allows an appellate court to increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law and/or (2) unsupported by the record. Id. at ¶ 7.
{¶ 2} The judgment of the court of appeals in the instant case is reversed, and the cause is remanded to the court of appeals for application of Marcum.
O'CONNOR, C.J., and PFEIFER, O'DONNELL, LANZINGER, KENNEDY, FRENCH, and O'NEILL, JJ., concur.