603 N.E.2d 319 | Ohio Ct. App. | 1991
Defendant-appellant James Cass was convicted of breaking and entering in violation of R.C.
On three separate occasions a capias was issued at the request of the probation department. On May 30, 1985, a capias was journalized and appellant was arrested on December 31, 1985. On September 21, 1988, the second capias was journalized and appellant was arrested on October 11, 1988; and on March 8, 1989, the third capias was journalized and appellant was arrested on November 24, 1989.
On December 10, 1989, at the final probation violation hearing, the judge imposed the original sentence of four to ten years' incarceration. It is from this event that appellant files this appeal.
Appellant's first assignment of error:
Appellant contends that the court improperly imposed the original sentence at the final probation violation hearing because the maximum statutory time for probation had elapsed. R.C.
"Probation under section
From the record, it is clear that appellant was originally sentenced on October 10, 1984, and was remanded for incarceration on December 10, 1989. More than five years elapsed between sentencing and revocation of probation. *699
In State v. Williams (1988),
"* * * This court has held that the issuance of a journalized capias was tantamount to a journal entry declaring defendant an absconder. State v. Moses (Nov. 29, 1984), Cuyahoga App. No. 47835, unreported, at 1, 3 [1984 WL 6217] (capias issued, Journal Entry, July 14, 1983).
"Moses cited State v. Wallace (1982),
"First, Wallace and Moses were wrongly decided. R.C.
The court went on to say at 186,
"Moses and Wallace found that once a capias is issued the period is tolled. There is no authority for that conclusion other than the policy that jurisdiction should be retained. If a public policy exception can be grafted onto the statutes then it should require that jurisdiction be retained only if appellant hid himself and eluded the capias within the county and the capias was journalized before the probation period ended." (Emphasis sic.)
Thus, it is clear that this court held that merely issuing a capias is not sufficient to declare the appellant an absconder and toll the time for purposes of R.C.
"A defendant's probation period is not tolled under R.C.
In In re Townsend (1990),
"* * * Thus, we specifically disapprove State v. Williams,supra, to the extent it holds that `absconds' requires proof that the probationer left the jurisdiction. `"* * * Courts of law are not warranted in giving such a construction to the acts of a legislature, as must necessarily work injustice *700
and be fraught with injurious consequences, unless the intent of the legislature that they shall be so understood, is manifest and clear beyond any rational doubt. * * *"' Lessee of Allen v.Parish (1827),
Although the Supreme Court overruled Williams on its main issue, the court did not deal with the issue whether issuing a capias is sufficient to toll the probationary time. However, the facts in In re Townsend are similar to those in the case subjudice. In Townsend, the appellant was placed on probation for two years in October 1985; he stopped reporting in November 1986; a capias was issued in February 1987; and appellant was arrested in July 1989. The arrest pursuant to the capias was long after the probationary period expired.
Given the holding in Townsend, we find that the trial court retained jurisdiction over appellant Cass, and did not abuse its discretion by imposing appellant's original sentence.
Appellant's first assignment of error is overruled.
Appellant's second assignment of error:
Crim.R. 11(C)(2) states in pertinent part:
"(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and:
"(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation."
Twice during the plea the trial judge correctly informed the appellant that the penalty for his conviction would be an indeterminate sentence. Appellant twice responded that he understood.
When relating the potential penalty during the sentencing itself, the judge stated:
"That means you can be sent to a penal institution for two to three to four up to 10 years, a 10 year maximum determinate sentence, together with a possible fine of up to $5,000 under each count." *701
The judge correctly stated the number of years, but misspoke when he said appellant would receive a determinate sentence rather than an indeterminate sentence.
We find that, given appellant's response to whether he understood the penalty involved, any error committed by the judge was harmless.
Appellant's second assignment of error is overruled.
Judgment affirmed.
NAHRA, P.J., and PATTON, J., concur.