State v. BrownState v. Brown
Judgmеnt Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and Cause Remanded
Date of Judgment Entry on Appeal: January 29, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} In this reopеned appeal, defendant-appellant Marques Brown presents three assignments of error, challenging the trial court‘s authority to limit his participation in the earned-credits program, the transitional-сontrol program, and the judicial-release program as part of his sentence, which was jointly recommended by the parties. Because we conclude that the trial court may not limit Brown‘s particiрation in the earned-credits program as a part of the sentence, even though that condition was agreed upon, we vacate the offending portion of Brown‘s sentence and remand this matter to the trial court for the limited purpose of correcting the judgment entry.
Background Facts and Procedure
{¶2} Brown was convicted in January 2013 upon his guilty plea to voluntary manslaughter with a firearm specification. As part of his plea agreemеnt, Brown and the state agreed to a recommended nine-year prison term for the voluntary manslaughter and a three-year prison term for the firearm specification, and that as conditions of this aggregate 12-year term, nine years of which was nonmandatory, Brown would not be eligible for earned days of credit, transitional control, or judicial release, or any other sentence reduction or modification programs in prison.
{¶3} The trial court imposed the jointly-recommended aggregate 12-year sentence and, consistent with the plea agreement, stated on the record that Brown would be ineligible for eаrned days of credit, transitional control, judicial release, and any other sentence reduction or modification programs in prison, and inserted language to that effect into its judgment entry.
{¶4} Brown unsuccessfully challenged his conviction in a direct appeal to this court. See State v. Brown, 1st Dist. Hamilton No. C-130120 (Nov. 5, 2014). But in April 2015, we granted Brown‘s
{¶5} Brown advances that assignment of error in his reopened appeal. In addition, he advances two others, challenging the trial court‘s authority to limit his eligibility for transitional control under
Standard of Review
{¶6} This case involves the review of an agreed-upon sentence as contemplated by
{¶7}
{¶8} But “[j]udges have no inherent power to create sentences,” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, cited in State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 12. Therefore, a court may only impose a sentence that is provided for by the legislature—by statute. Id. An agreed sentence is not authorized by law, and thus exempt from the restriction of
{¶9} The issue in this appeal is whether the now challenged but jointly recommendеd provisions in Brown‘s sentence were permitted or instructed by statute, and thus, authorized by law.
Earned-Credits Program
{¶10} Ohio‘s earned-credits program, governed by
{¶11} In State v. Livingston, this court recognized that the statutory scheme of
{¶12} The relevant facts of this case are indistinguishable from those in Livingston, and the state concedes that appellate counsel‘s representation was deficient for failing to raise this issue in Brown‘s direct aрpeal. Based upon
Transitional-Control Program
{¶13} The legislature authorized DRC under
{¶14} Specifically, by statute, DRC must notify the trial court of a prisoner‘s impending transfer to the program. At that time, the court has full discretion to disapprove the transfer.
{¶15} Brown takes issue with the timing of the trial court‘s disapproval. He contends that the court must wait to disapprove of his participation in thе program, which could only occur with respect to his imprisonment for voluntary manslaughter, until it receives a notification from the DRC that he is to be transferred to the program based upon his conduct in prison. He suggests that allowing the trial court to deny transitional control in advance defeats the purpose of the statute. In support, he cites State v. Spears, 5th Dist. Licking No. 10-CA-95, 2011-Ohio-1538. That court held that denying transitional control in the sentencing entry “clearly thwarts the design and purpose of the statute,” which is “to promote prisoner rehabilitation effort and good behavior while incarcerated.” Id. at ¶ 37. And Brown claims that no statutory рrovision specifically authorizes a trial court to deny access to transitional control as a part of the sentence.
Judicial Release
{¶17}
{¶18} Brown contends that he would have been eligible for judicial release at some point during his incarceration based on the statutory requirements, and notes that
{¶19} As recognized by Brown, however, the legislature has vested the trial сourt by statute with the authority to deny Brown judicial release. Thus, we hold that the trial court has sentencing powers with respect to judicial release, like with
Conclusion
{¶20} The portion of the sentence prohibiting Brown from earning days of credit in prison was not authorized by law, and appellate counsel was deficient for not raising this issue in Brown‘s direct appeal. To remedy the dеfect in Brown‘s sentence, we apply the remedy set forth in Livingston, 2014-Ohio-1637, 9 N.E.3d 1117 at ¶ 10. Thus, we vacate that portion of Brown‘s sentence and remand this matter to the trial court for the limited purpose of correcting the judgment. The trial court‘s judgment is affirmed in all other respects.
Affirmed in part, sentence vacated in part, and cause remanded.
FISCHER and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.