723 N.E.2d 606 | Ohio Ct. App. | 1998
On January 20, 1998, defendant-appellant Shaun Griffin waived his right to a jury trial and entered a plea of no contest to a charge of possession of cocaine in violation of R.C.
On April 2, 1998, the court tolled Griffin's community-control sanctions: "Under provision granted in Section
Griffin now appeals his sentence.1 In his sole assignment of error, he argues that the trial court erred in ordering the tolling of his community-control sanctions. We agree.
To understand why the trial court erred, an understanding of exactly what is meant by "community control" is necessary. The Revised Code defines a community-control sanction as one that "is not a prison term and that is described in section
In Griffin's assignment, he does not challenge the court's February 12, 1998 sentence. Instead, he challenges its April 2, 1998 order tolling his community-control sanctions. We begin by holding that this order was a modification of Griffin's sentence. By tolling the three-years of community control, the court effectively extended Griffin's sentence by three years: Griffin would have to serve his three years of community control after his eleven-year prison sentence for case No. B-9706893B, rather than concurrently with it. In fact, it is presently not possible to determine when Griffin's community control is to run because it is tolled until further order of the court.
Griffin argues that such a modification by the court was not permitted under the Revised Code, and he challenges the court'sex parte ordering of the modification. According to the terms of the April 2, 1998 order, the court tolled Griffin's community control because he was "in Ohio Department of Corrections custody." The court stated in the order that it was tolling the community control under the authority of R.C.
To toll Griffin's community control, the court should have looked to the sections of the Revised Code specifically governing community control — R.C.
Here, the court modified, or tolled, Griffin's sentence of community control because he was "in Ohio Department of Corrections custody." He was in custody because he was serving the prison time imposed by the court on February 18, 1998, not because he violated any terms of his community control. Because the sections of the Revised Code governing community control do not permit a court to modify community control merely because an offender is confined in a prison and because these sections do not permit the tolling of community control as the court did here, we hold that the court's April 2, 1998 order was not permitted by law.
Also, the court's ex parte entry of the order violated Griffin's due process rights because "[w]hen a sentence pronounced in open court is subsequently modified and the judgment entry reflects the modification, the modification must have been made in the defendant's presence."11 (In fact, counsel for Griffin stated at oral argument that he only realized that the order existed because he came across it by "accident." It could have been very possible that Griffin would have completed his eleven-year prison term for case No. B-9706893B, only then to realize that the court had tacked another three years of community control onto his sentence.) Nevertheless, we need not address this error. The issue is moot because, even if the court would have entered the April 2, 1998 order after it had given notice to Griffin and after it had conducted a hearing with Griffin present, the order would still have been contrary to law.
Griffin's sole assignment of error is sustained. We reverse the trial court's April 2, 1998 order.
Judgment reversed.
SUNDERMANN, P.J., and GORMAN, J., concur.
