2005 Ohio 4375 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 3} On August 21, 2003, Appellee filed a motion for judicial release. The motion was overruled without a hearing on September 5, 2003. On September 23, 2003, Appellee filed another motion for judicial release. On October 31, 2003, Appellant filed an answer to the second motion for judicial release, informing the trial court that it had decided to stand silent concerning the matter. Appellee's second motion was overruled without a hearing on November 4, 2003.
{¶ 4} On January 21, 2004, Appellee filed a third motion for judicial release. This motion was overruled without a hearing on January 30, 2004.
{¶ 5} On April 16, 2004, Appellee filed his fourth motion for judicial release, which is the subject of the instant appeal by the Mahoning County Prosecutor's Office. On May 13, 2004, Appellant filed a reply to the fourth motion for judicial release, arguing that the motion was not filed within the time limits set by the judicial release statute. The court held a hearing on June 29, 2004. During the hearing, the attorneys became somewhat disrespectful to the trial judge and the hearing was abruptly recessed. The hearing was continued to July 20, 2004.
{¶ 6} On August 9, 2004, the judge issued a judgment entry granting Appellee's motion for judicial release.
{¶ 7} Appellant filed a premature appeal on July 26, 2004, designated as Appeal No. 04 MA 167. This Court filed a journal entry on September 3, 2004, directing Appellant to file a motion for leave to appeal, pursuant to App.R. 5(C). Appellant filed a Motion For Leave To Appeal on September 7, 2004, which was granted on October 4, 2004. The same journal entry denied Appellant's request for a stay of execution of the August 9, 2004, judgment.
{¶ 8} On November 16, 2004, this Court dismissed Appeal No. 04 MA 167 and transferred all filings to Appeal No. 04 MA 203.
{¶ 10} "THE TRIAL COURT ERRONEOUSLY GRANTED APPELLEE'S FOURTH MOTION FOR JUDICIAL RELEASE.
{¶ 11} "A. APPELLEE'S THIRD AND FOURTH MOTIONS FOR JUDICIAL RELEASE WERE OUTSIDE OF THE STATUTORY TIME LIMIT PRESCRIBED BY R.C.
{¶ 12} "B. THE COURT DENIED APPELLEE'S MOTION FOR JUDICIAL RELEASE AFTER THE JUNE 29, 2004 HEARING AND THUS, WAS PRECLUDED FROM GRANTING APPELLEE'S RELEASE IN THE FUTURE UNDER R.C. 2929.20(C)."
{¶ 14} Judicial release (formerly called "shock probation") is a means by which an imprisoned criminal may receive a reduced prison sentence after incarceration. Appellant contends that R.C. §
{¶ 15} "(B) Upon the filing of a motion by the eligible offender or upon its own motion, a sentencing court may reduce the offender's stated prison term through a judicial release in accordance with this section. The court shall not reduce the stated prison term of an offender who is not an eligible offender. An eligible offender may file a motion for judicial release with the sentencing court within the following applicable period of time:
{¶ 16} "(1)(a) Except as otherwise provided in division (B)(1)(b) or(c) of this section, if the stated prison term was imposed for a felonyof the fourth or fifth degree, the eligible offender may file the motionnot earlier than thirty days or later than ninety days after the offenderis delivered to a state correctional institution.
{¶ 17} "(b) If the stated prison term is five years and is an aggregate of stated prison terms that are being served consecutively and that were imposed for any combination of felonies of the fourth degree and felonies of the fifth degree, the eligible offender may file the motion after the eligible offender has served four years of the stated prison term.
{¶ 18} "(c) If the stated prison term is more than five years and not more than ten years and is an aggregate of stated prison terms that are being served consecutively and that were imposed for any combination of felonies of the fourth degree and felonies of the fifth degree, the eligible offender may file the motion after the eligible offender has served five years of the stated prison term.
{¶ 19} "(2) Except as otherwise provided in division (B)(3) or (4) of this section, if the stated prison term was imposed for a felony of the first, second, or third degree, the eligible offender may file the motion not earlier than one hundred eighty days after the offender is delivered to a state correctional institution.
{¶ 20} "(3) If the stated prison term is five years, the eligible offender may file the motion after the eligible offender has served four years of the stated prison term.
{¶ 21} "(4) If the stated prison term is more than five years and not more than ten years, the eligible offender may file the motion after the eligible offender has served five years of the stated prison term.
{¶ 22} "(5) If the offender's stated prison term includes a mandatory prison term, the offender shall file the motion within the time authorized under division (B)(1), (2), (3), or (4) of this section for the nonmandatory portion of the prison term, but the time for filing the motion does not begin to run until after the expiration of the mandatory portion of the prison term."
{¶ 23} The term "eligible offender," as used in R.C. §
{¶ 24} "(A) As used in this section, `eligible offender' means any person serving a stated prison term of ten years or less when either of the following applies:
{¶ 25} "(1) The stated prison term does not include a mandatory prison term.
{¶ 26} "(2) The stated prison term includes a mandatory prison term, and the person has served the mandatory prison term."
{¶ 27} It is clear from the record that Appellant was an eligible offender as defined by the statute. He was serving a prison term of two and one half years, and that prison term did not include any mandatory prison time, satisfying the statutory definition of eligible offender.
{¶ 28} The parties acknowledge that Appellee was permitted to file an initial motion for judicial release within 30 to 90 days of being delivered to the state correctional facility in Columbus. The parties also agree that Appellant's first and second motions for judicial release were timely filed. Appellant contends, though, that Appellee's third and fourth motions were also required to be filed within the 30 to 90-day filing period stated in R.C. §
{¶ 29} Appellee, on the other hand, argues that R.C. §
{¶ 30} "(C) Upon receipt of a timely motion for judicial release filed by an eligible offender under division (B) of this section or upon the sentencing court's own motion made within the appropriate time period specified in that division, the court may schedule a hearing on the motion. The court may deny the motion without a hearing but shall not grant the motion without a hearing. If a court denies a motion without ahearing, the court may consider a subsequent judicial release for thateligible offender on its own motion or a subsequent motion filed by thateligible offender. If a court denies a motion after a hearing, the court shall not consider a subsequent motion for that eligible offender. The court shall hold only one hearing for any eligible offender." (Emphasis added.)
{¶ 31} The question that we are presented with is whether or not the 30 to 90-day time limit in R.C. §
{¶ 32} The third sentence of R.C. §
{¶ 33} Nevertheless, a certain amount of confusion arises when attempting to read the third sentence of R.C. §
{¶ 34} This appeal necessarily involves the interpretation of a statute, which is an issue of law reviewed de novo on appeal without deference to the interpretation of the trial court. Dechellis v. Rakoss (Sept. 26, 2001), 7th Dist. No. 00-C.A.-156.
{¶ 35} The first and foremost goal of statutory construction is to determine and give effect to the intent of the legislature:
{¶ 36} "In the construction of statutes the purpose in every instance is to ascertain and give effect to the legislative intent, and it is well settled that none of the language employed therein should be disregarded, and that all of the terms used should be given their usual and ordinary meaning and signification except where the lawmaking body has indicated that the language is not so used." Carter v. Division ofWater, City of Youngstown (1946),
{¶ 37} In determining legislative intent, courts, "must look to the statute itself * * * and if such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act, and in the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used." Wachendorf v. Shaver (1948),
{¶ 38} R.C. §
{¶ 39} "In enacting a statute, it is presumed that:
{¶ 40} "(A) Compliance with the constitutions of the state and of the United States is intended;
{¶ 41} "(B) The entire statute is intended to be effective;
{¶ 42} "(C) A just and reasonable result is intended;
{¶ 43} "(D) A result feasible of execution is intended."
{¶ 44} We must also keep in mind the "rule of lenity," originally a common law rule of statutory construction that has been codified in R.C. §
{¶ 45} "(A) Except as otherwise provided in division (C) or (D) of this section, sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."
{¶ 46} Since the judicial release statute, R.C. §
{¶ 47} Finally, it is clear that R.C. §
{¶ 48} "(B) Rules of criminal procedure and sections of the Revised Code providing for criminal procedure shall be construed so as to effect the fair, impartial, speedy, and sure administration of justice."
{¶ 49} With these various rules of construction in mind, we now address the issue at hand.
{¶ 50} The decision of a trial court to grant judicial release is, in effect, part of the court's original felony sentence. State v. Peoples,
{¶ 51} R.C. §
{¶ 52} "(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both."
{¶ 53} Judicial release seeks to achieve both of those purposes. First, an offender is incarcerated in prison for a certain period of time before being permitted to request judicial release. This primarily serves the purpose of punishing the offender. The offender is then given the opportunity to have that prison sentence immediately suspended and replaced with community control sanctions, as set forth in R.C. §
{¶ 54} "(I) If the court grants a motion for judicial release under this section, the court shall order the release of the eligible offender, shall place the eligible offender under an appropriate community control sanction, under appropriate community control conditions, and under the supervision of the department of probation serving the court, and shall reserve the right to reimpose the sentence that it reduced pursuant to the judicial release if the offender violates the sanction."
{¶ 55} Replacing prison time with community control sanctions allows the court much more flexibility in achieving the second purpose of felony sentencing, which is to prevent future crime. Community control allows the trial court to prevent future crime by incorporating rehabilitative programs into the sentence, such as educational, training and treatment programs, intensive structured probation, drug and alcohol monitoring, victim-offender mediation, community service, and other types of rehabilitation. See R.C. §§
{¶ 56} It would appear that any ambiguity in the judicial release statute should be interpreted in favor of allowing the trial court as much flexibility as possible in applying judicial release in order to achieve the overarching purposes of felony sentencing.
{¶ 57} Appellant relies on the case of State v. Anderson-Melton (Nov. 9, 2001), 2nd Dist. No. 18703, to establish that the trial court did not have discretion to entertain Appellee's fourth motion for judicial release. In Anderson-Melton, the defendant was sentenced in September 1998 to three consecutive sentences for fourth and fifth degree felonies. The sentences were 12 months, 11 months, and 12 months, respectively. The defendant did not file any motion for judicial release until September of 2000. The defendant argued that, pursuant to R.C. §
{¶ 58} In the instant case, though, Appellee did not wait two years to file an initial motion for judicial release, as occurred inAnderson-Melton. Appellee filed his first motion within the 30 to 90-day window provided by the judicial release statute. Appellant acknowledges this. Therefore, the analysis and holding of Anderson-Melton do not readily apply to the facts of the instant appeal.
{¶ 59} Appellant does not present any other persuasive authority for its interpretation of R.C. §
{¶ 60} If R.C. §
{¶ 61} "(B) Upon the filing of a motion * * * a sentencing court may reduce the offender's stated prison term * * *. An eligible offender may file a motion for judicial release with the sentencing court within the following applicable period of time:
{¶ 62} "(1)(a) * * * the eligible offender may file the motion not earlier than thirty days or later than ninety days after the offender is delivered to a state correctional institution."
{¶ 63} One would expect some reference to "subsequent motions" or "additional motions" if the filing deadlines applied beyond the first motion for judicial release. Instead, this section refers to a singular filing, while the later section clearly addresses multiple filings but does not specifically state whether the time guidelines apply to these multiple filings.
{¶ 64} As stated in R.C. §
{¶ 65} Furthermore, it is obvious from R.C. §
{¶ 66} We have already noted that the third sentence of R.C. §
{¶ 67} We are mindful that Appellant's interpretation of R.C. §
{¶ 69} "If a court denies a motion after a hearing, the court shall not consider a subsequent motion for that eligible offender. The court shall hold only one hearing for any eligible offender."
{¶ 70} Appellant is correct that the judicial release statute limits a defendant to one hearing. If the court decides to grant a hearing and then denies the motion for judicial release, that one hearing brings about the end of further proceedings. After hearing, should the trial court overrule the defendant's motion for judicial release, the court does not have the authority to entertain further motions for judicial release. State. v. Baker (June 5, 2000), 12th Dist. No. CA2000-01-002.
{¶ 71} It is apparent from the record before us, that the July 20, 2004, hearing was a continuation of the hearing that began on June 29, 2004, and was not a separate hearing. The trial judge specifically stated that the June 29, 2004, hearing was "recessed." (6/29/04 Tr., p. 17.) Black's Law Dictionary defines "recess" as "a short interval or period of time during which the court suspends business, but without adjourning." Black's Law Dictionary (6th Ed. 1990) 1269. A recess may be for a few minutes, or a day, or many days. City of Cleveland Heights v. Perryman
(1983),
{¶ 72} Furthermore, the transcript of the July 20, 2004, hearing reveals that the parties and the trial judge all considered the matter as a continuation of the June 29, 2004, hearing. At the beginning of hearing the prosecutor stated that, "[w]e are here this morning for a continued hearing on the motion for judicial release * * *." (7/20/04 Tr., p. 2.) No one raised an objection to this assertion. Nor did Appellant's attorney raise any objection that the hearing violated R.C. §
{¶ 73} There is nothing in R.C. §
{¶ 74} Furthermore, the judicial release statute only prohibits the trial judge from conducting a second hearing if the court subsequently, "denies [the] motion after a hearing[.]" The trial judge in the instant case did not deny Appellee's motion after the June 29, 2004, hearing. As the Fifth District Court of Appeals has pointed out, R.C. §
{¶ 75} Neither of Appellant's arguments is persuasive, and we therefore overrule Appellant's sole assignment of error. We hereby affirm the judgment of the Mahoning County Court of Common Pleas in full.
Vukovich, J., concurs.
DeGenaro, J., dissents; see dissenting opinion.
Dissenting Opinion
{¶ 76} The majority engages in a lengthy analysis, relying on rules of construction and the broad purposes of felony sentencing, to conclude that a trial court can grant an untimely motion for judicial release as long as the offender filed a timely motion sometime in the past. This convoluted analysis is unnecessary because the statute is clear. The second sentence of R.C.
{¶ 77} It does not matter whether the third sentence in R.C.
