2013 Ohio 4167
Ohio Ct. App.2013Background
- Jimmy Torres had four Youngstown municipal misdemeanor convictions (three first-degree; one second-degree) between Oct 2010 and Oct 2011 and received probation terms totaling up to two years in several cases.
- He was later notified of alleged probation violations for failures to complete treatment, pay sanctions, appear, and perform community service.
- At a Sept. 7, 2012 hearing Torres stipulated that he violated probation; the court found violations and scheduled sentencing after a presentence investigation.
- At the Oct. 5, 2012 sentencing hearing the court imposed four 180-day terms (for the first-degree misdemeanors) and one 90-day term (for the second-degree misdemeanor), ordered to run consecutively to each other and concurrently with any prison sentences (aggregate 810 days).
- Counsel filed a Toney brief seeking withdrawal as appellate counsel; Torres did not file a pro se brief. The appeal raises probation revocation and sentencing issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court abused discretion in revoking probation | State: evidence (stipulation) showed probation breach; revocation proper | Torres: implicitly challenged revocation (no pro se brief) | Court: No abuse; appellant stipulated and was apprised of grounds, revocation proper |
| Whether misdemeanor sentences may aggregate beyond 18 months | State: trial court may impose consecutive misdemeanor terms as sentenced | Torres: aggregate exceeded statutory 18-month cap on misdemeanor imprisonment | Court: Trial court erred in imposing 810 days, but R.C. 2929.14(B)(1) is self-executing and limits aggregate to 18 months; no remand required |
Key Cases Cited
- Toney v. State, 23 Ohio App.2d 203 (7th Dist. 1970) (procedure when appointed counsel deems appeal frivolous)
- State v. Scott, 6 Ohio App.3d 39 (2d Dist. 1982) (standard of review for probation revocation is abuse of discretion)
- State v. Adams, 62 Ohio St.2d 151 (Ohio 1980) (abuse of discretion defined as unreasonable, arbitrary, or unconscionable)
- State v. Kesterson, 91 Ohio App.3d 263 (6th Dist. 1993) (R.C. 2929.14 prevents aggregate misdemeanor jail terms exceeding 18 months)