2019 Ohio 3005
Ohio Ct. App.2019Background
- In 1986 Donald Powell was convicted of kidnapping, multiple counts of rape, gross sexual imposition, and attempted rape and sentenced to an aggregate indeterminate term of 15 to 65 years.
- Powell filed a motion in June 2018 for "shock probation" under R.C. 2929.201, a 2014 statute that permits certain offenders who committed crimes before July 1, 1996 to apply again for shock probation under the pre-1996 law (former R.C. 2947.061).
- The State opposed, arguing Powell’s rape convictions made him ineligible for shock probation under the eligibility rules in former R.C. 2951.02.
- The trial court granted Powell’s motion, reasoning that because Powell had completed the term(s) specifically for rape (or was otherwise still incarcerated after 2014), the former disqualification did not bar relief.
- The State appealed; the appellate court reversed, holding that R.C. 2929.201 incorporates the former eligibility limits (including those in R.C. 2951.02), and an offender whose aggregate sentence includes rape is categorically ineligible for shock probation regardless of whether the specific rape term was served.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2929.201 permits an offender sentenced before July 1, 1996 whose aggregate prison term includes rape to obtain shock probation | Relying on former R.C. 2947.061 and R.C. 2951.02, the State argued Powell is ineligible because rape defendants are barred from probation | Powell (trial court) argued former probation disqualifications do not apply post-2014 application; because he completed the rape term (or remained incarcerated after 2014) he could be granted shock probation | Reversed: R.C. 2929.201 incorporates former R.C. 2947.061 and its prerequisite eligibility rules (former R.C. 2951.02), so Powell is ineligible because his sentence included rape |
Key Cases Cited
- State v. Coffman, 91 Ohio St.3d 125 (2001) (former R.C. 2947.061 remains available to offenders who committed offenses before July 1, 1996)
- State v. Bistarkey, 75 Ohio St.3d 7 (1996) (R.C. 2947.061’s operation is "subject to" R.C. 2951.02–.09; eligibility for probation under R.C. 2951.02 is prerequisite for shock probation)
- State v. Simon, 87 Ohio St.3d 531 (2000) (under R.C. 2947.061, eligibility for shock probation depends on eligibility for probation)
- State v. Harris, 66 Ohio St.3d 89 (1993) (trial court lacks jurisdiction to rule on a shock-probation motion absent a presentence investigation as required by former R.C. 2951.03)