State v. DrakeState v. Drake
FAIN, J.
{¶ 1} Defendant-appellant Christopher Drake appeals from an order finding that Drake violated community control conditions, and imposing a sixty-one day jail sentence that had previously been suspended. Drake contends that the trial court erred by continuing his term of community control after finding a violation of community control and imposing a jail sentence.
{¶ 2} We agree with Drake that
I
{¶ 3} In November 2004, a complaint was filed in Montgomery County Area One Court, alleging that Drake had recklessly violated the terms of a protection order. The charge was a first-degree misdemeanor. Drake pled guilty in January 2005, and was sentenced to 180 days in jail and court costs. The trial court ordered Drake to serve 90 days, with credit for 30 days previously served. The court suspended 90 days and placed Drake on community control for five years, based on Drake‘s compliance with various conditions, including that he would commit no other crimes for five years, comply with mental health providers, have no contact with the complaining witness, and pay fines and court costs.
{¶ 4} Subsequently, a notice of revocation hearing and order was filed, and the court held a hearing on the charges in December 2005. Drake admitted at the hearing that he had violated the conditions that had been imposed. The trial court noted that 90 days of the sentence had already been served and that the remaining time could be
{¶ 5} A second notice of revocation hearing and order was filed in February 2006. At a hearing in March 2006, Drake again admitted the violations. Noting that 81 days remained on the sentence, the court imposed 20 days, with credit given for seven days that Drake had already spent in jail. An order filed on March 22, 2006, reiterated these findings. This time, the order extended Drake‘s “probation” five years from the date of the conviction. The court again continued all prior non-conflicting conditions.
{¶ 6} In September 2006, a third notice of revocation was filed, and a hearing on that charge was held in November 2006. At the hearing, the trial court noted that 29 days of the 90 day sentence had been served, leaving 61 days that could be imposed. Drake admitted a violation, and the court imposed the remaining 61 days, with credit for three days served. The court ordered that the jail time would be suspended if Drake
{¶ 7} Drake did not file a notice of appeal from the revocation orders filed in December 2005, and March 2006. However, Drake did file a notice of appeal following the November 2006 order. Drake also requested a suspension or stay of execution of the sentence from both the trial court and our court, but his requests were denied.
{¶ 8} As a final procedural note, we filed a show cause order in May 2007, due to the State‘s failure to file a brief. The State did not respond to the show cause order, nor has the State filed a brief.
II
{¶ 9} Drake‘s sole assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ERRED WHEN IT CONTINUED APPELLANT‘S TERM OF COMMUNITY CONTROL AFTER THE COURT HAD FOUND APPELLANT IN VIOLATION OF COMMUNITY CONTROL AND IMPOSED A JAIL SENTENCE.”
{¶ 11} Under this assignment of error, Drake contends that the trial court violated
{¶ 12} As a procedural point, we note that an order revoking probation and requiring the defendant to serve a jail sentence is a final appealable order. State v. Parsons, Franklin App. No. 03AP-1176, 2005-Ohio-457, at ¶ 7. Consequently, if the trial court committed error with regard to the November 2005, and March 2006 orders, Drake should have appealed. Since Drake failed to do so, issues as to those orders are not properly before us. We will consider the alleged error, therefore, only insofar as it relates to the November 2006 revocation hearing and order. However, we will consider the events of the prior revocation hearings as background information, where pertinent.
{¶ 13} Effective January 1, 2004,
{¶ 14} “(a) Directly impose a sentence that consists of one or more community control sanctions authorized by section
{¶ 15} “(b) Impose a jail term under section
{¶ 16} Thus, under the statute, a court has two choices: (1) the court may
{¶ 17}
{¶ 18} “At sentencing, if a court directly imposes a community control sanction or combination of community control sanctions pursuant to division (A)(1)(a) of this section, the court shall state the duration of the community control sanctions imposed and shall notify the offender that if any of the conditions of the community control sanctions are violated the court may do any of the following:
{¶ 19} “(a) Impose a longer time under the same community control sanction if the total time under all of the offender‘s community control sanctions does not exceed the five-year limit specified in division (A)(2) of this section;
{¶ 20} “(b) Impose a more restrictive community control sanction under section
{¶ 21} “(c) Impose a definite jail term from the range of jail terms authorized for
{¶ 22} By its own terms,
{¶ 23} The next subsection of
{¶ 24}
{¶ 25} “If an offender violates any condition of a community control sanction, the sentencing court may impose upon the violator a longer time under the same community control sanction if the total time under all of the community control sanctions imposed on the violator does not exceed the five-year limit specified in division (A)(2) of this section or may impose on the violator a more restrictive community control sanction or combination of community control sanctions, including a jail term. If the court imposes a jail term upon a violator pursuant to this division, the total time spent in jail for the misdemeanor offense and the violation of a condition of the community control sanction
{¶ 26} The first sentence of
{¶ 27} The second option is that the court may impose a more restrictive community control sanction or combination of sanctions, including a jail term. However, if a jail term is imposed, the total time spent in jail for the sanction and the misdemeanor offense cannot exceed the maximum term available for the underlying offense.
{¶ 28} In the context of the present case, this means that when Drake returned to the trial court on a violation, the court had the option of increasing the length of Drake‘s existing community control sanctions, which included matters like complying with mental health providers and paying fines. Alternatively, the court could have imposed more restrictive community control sanctions, including a jail term, but the total length of any jail term, including time already served, could not exceed the maximum sentence of 180 days for Drake‘s first-degree misdemeanor conviction.
{¶ 29} Drake contends, however, that once the trial court elected to impose a jail term, the court could not extend the period of community control. For this proposition, Drake relies on State v. Redmond, Montgomery App. No. 21500, 2007-Ohio-441, which
{¶ 30} Redmond involved the issue of whether the trial court had complied with the requirements of
{¶ 31} We continue to adhere to the view that the options in
{¶ 32} In the first two violation hearings, the trial court did not lengthen the term of the community control sanctions. Although the court used language indicating that the term was being “extended,” the court simply continued the five-year term of community control that had already been imposed. The court also imposed a jail term of a certain amount of days.
{¶ 34} In contrast, the trial court in Redmond originally imposed only two years of community control. Subsequently, the court lengthened that term by an additional five years, while also imposing jail time. This was erroneous under
{¶ 35} Drake argues, however, that a trial court cannot “continue” community control sanctions and also impose a jail term. In this regard, Drake relies on State v. Ham, 170 Ohio App.3d 38, 2007-Ohio-133, 865 N.E.2d 953, and
{¶ 36} Before addressing the cited case, we should note that
{¶ 37} As an example, suppose that an offender is originally sentenced to 90 days in a half-way house, two years of random alcohol testing, two years of basic probation supervision, and a fine. These are all permissible community control sanctions under
{¶ 38} The court could also choose to impose a more restrictive community control sanction or combination of sanctions, like a jail term of three days, intensive probation supervision, and random alcohol testing for the remainder of the original community control period. In this situation, including a jail term would not preclude the court from continuing the community control sanctions, because
{¶ 39} We have previously noted that ” ‘[m]ost of the case law examining probation revocations is equally applicable to the revocation of community control sanctions.’ ” State v. Whitaker, Montgomery App. Nos. 21003, 21034, 2006-Ohio-998, at ¶ 10. However, we have also stressed that probation and community control sanctions are similar in operational effect, but are based on different philosophies. Probation is an ” ‘expression of leniency in place of a deserved prison sentence’ while community control sanctions are imposed as ‘the sentence that is deserved and which
{¶ 40} In Ham, we considered
{¶ 41} Based on the wording of
{¶ 42} Accordingly, the trial court did not commit error or lose jurisdiction when it imposed a jail term for Drake‘s community control violation. Drake‘s sole assignment of error is overruled.
III
{¶ 43} Drake‘s sole assignment of error having been overruled, the judgment of the trial court is Affirmed.
WOLFF, P.J., and DONOVAN, J., concur.