757 N.E.2d 1237 | Ohio Ct. App. | 2001
Lead Opinion
Community control under R.C.
At the sentencing hearing held on August 5, 1999, the sentencing court said, "Do you understand this carries a penalty that ranges anywhere from six to twelve months." Other than informing Curtis of the range of the applicable prison term at the sentencing hearing, the court did not inform Curtis of the available options if she violated community control when it subsequently mitigated the sentence and placed her on community control with a combination of nonresidential sanctions under R.C.
The only way the sentencing court could have retained jurisdiction to modify the sentence was if the eleven-month prison term was part of a community-control sanction. Clearly, judicial release was not available under R.C.
When Curtis violated her community control, the trial court had authority, pursuant to R.C.
Therefore, the judgment of the trial court is affirmed.
Winkler, J., concurs.
Dissenting Opinion
The majority claims that the prison sentence must have been part of the community-control sanction. I fail to see that something that walks like a duck, talks like a duck, and acts like a duck can be called a chicken to fit it into a statutory scheme that no longer permits ducks. What we really have here is a throwback to the way things used to be. The only way I can interpret what the trial court did is to regard the eleven-month sentence the court "imposed" as simply a notice to Curtis that she would receive that sentence if she violated community control. Thus, the trial court specifically and properly complied with the notice requirement, but then exceeded the promised sentence by one month. We should delete the month, and the case would then both make sense and comply with the statute.
Defendant-appellant Jaya Curtis pleaded no contest to possession of crack cocaine in violation of R.C.
Curtis spent three months in the residential facility before the trial court granted a "motion to mitigate." A judgment entry from the hearing on that motion reflects that the court suspended the balance of the original eleven-month sentence of imprisonment. The court instead ordered Curtis to serve three years of community control that included aftercare at the First Step Home. The judgment entry also reflects that the trial court informed Curtis that a violation of her community-control sanctions could result in the imposition of "the maximum sentence possible for that degree of felony." But nothing in the judgment entry specifies the maximum sentence possible for a fifth-degree felony. More importantly, according to the transcript of the hearing, Curtis received no verbal notification.
Things did not go well for Curtis at the First Step Home. Within six weeks of her arrival, Curtis was sent back to the trial court for failure to participate effectively in the aftercare program. She was given another chance. Two months later, Curtis left the First Step Home on her own, effectively violating the terms of her community-control sanctions. Curtis was eventually found and again brought before the court.
The trial court, with its patience clearly exhausted, found that recidivism was more likely than not, that Curtis was not amenable to community control, and that prison was consistent with sentencing purposes. Reflecting on the term of the sentence, the court determined that a minimum sentence would demean the seriousness of the offense and not adequately protect the public. The court also found, without stating why, that Curtis had committed "the worst form of the offense." A finding that the defendant has committed the worst form of an offense or that the defendant presents the greatest likelihood of recidivism allows a trial court to impose the maximum sentence for the offense.2 The trial court did just that here, sentencing Curtis to twelve months of imprisonment, with credit for the days she had already served.
Curtis claims that the trial court erred to her prejudice by imposing the maximum term. Curtis presents two arguments in support of her claim: (1) that a maximum sentence was unsupported by the trial court's findings, and (2) that R.C.
R.C.
While R.C.
There is little doubt that the felony sentencing guidelines, effective in 1996, have been a comprehensive and in many cases confusing change to felony sentencing. And while many courts are still adjusting to the nuances of this change, the sections of the statutes quoted above appear reasonably clear. It is clear, for example, that if a defendant is not forewarned of a specific term of imprisonment selected from the range of applicable terms, although other options are ultimately available to the trial court, the defendant cannot later be sentenced to prison solely for a violation of community-control sanctions.4
Occasionally, other appellate courts have been required to determine compliance with the statutory notice requirements from the facts of a particular case. When, for example, a defendant was informed by the court of a range of imprisonment that could be imposed for an offense, and then was told that a violation of community-control sanctions could result in the maximum being *319 imposed, the Fifth Appellate District held that the defendant had been properly notified.5 We have previously held that notification that a prison term might be chosen from a specific range and imposed for a violation of community-control sanctions complied with the statute.6
A Third Appellate District case has a slightly contrary view. There, a defendant signed a journal entry as he changed his plea to guilty. The journal entry specified the possible range of imprisonment for the felony, and that violation of any imposed community-control sanctions could result in the trial court's imposition of the maximum term of imprisonment. The Third Appellate District held that the defendant was not properly notified under R.C.
In other circumstances, because our terminology changes slowly in response to the new nomenclature of the felony sentencing guidelines, courts seem to agree that what something is labeled is less important than whether the defendant has effectively received notice.10 So the trial court's imposition of a suspended sentence in conjunction with community-control sanctions has been held to be in substantial compliance with R.C.
In the present case, Curtis was sentenced to eleven months of imprisonment. It is true that Curtis signed a no-contest-plea form before she was sentenced, and that the form acknowledged that she could receive a prison term of six to twelve months for violation of any community-control sanctions imposed against her. But Curtis was not sentenced to community control at that hearing.
Instead, Curtis's original sentence of eleven months of imprisonment was suspended some three months later, and the court then imposed community control. The accompanying judgment entry states that Curtis received notification that the court could impose the maximum sentence for a fifth-degree felony for a violation of her community control. But the transcript of the proceedings does not reflect this notification. The record also does not reflect that Curtis received, signed, or in any way acknowledged the entry itself. And even if Curtis had received or acknowledged the judgment entry, the judgment entry does not specify what the range of possible imprisonment is for a felony of the fifth degree.
I empathize with the obvious frustration of the trial court when Curtis later abandoned her rehabilitation, her responsibility to the court, and her responsibility to herself. But, by imposing the initial sentence of eleven months and later suspending that sentence in favor of community control, the court was limited by statute to imposition of what remained of the original eleven-month term. I would reverse the judgment of the trial court and remand this case for correction of the term of imprisonment, not to exceed eleven months.
Please Note:
The court has recorded its own entry on the date of the release of this Opinion.