State v. JusticeState v. Justice
Michael A. Davenport, Lambert Law Office, Ironton, Ohio, for Appellant.
Brigham Anderson, Lawrence County Prosecutor, and Jeffrey M. Smith, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio for Appellee.
DECISION AND JUDGMENT ENTRY
Hoover, J.
{¶ 1} Appellant, Justin R. Justice, appeals his sentence from the Common Pleas Court of Lawrence County, revoking his community control and ordering him to serve a prison tеrm of two (2) years and six (6) months. Before being granted judicial release and placed on community control, the trial court originally sentenced appellant to four (4) years in prison for one count aggravated possession of drugs, a felony of the third degree, in violation of
{¶ 2} Appellant, Justin R. Justice, sets forth the following assignment of error:
THE COURT BELOW ERRED IN SENTENCING THE DEFENDANT TO THE REMAINDER OF HIS PRIOR SENTENCE FOR FAILURE TO SATISFY
REPORTING REQUIREMENTS OF THE COMMUNITY CONTROL SANCTIONS BECAUSE THE DEFENDANT HAD IN FACT ACCOMPLISHED THE UNDERLYING GOAL OF ADULT PROBATION AND OF COMMUNITY CONTROL SANCTIONS BY RETURNING TO A PRODUCTIVE POSITION IN SOCIETY AND BECAUSE THE PUNISHMENT IMPOSED DOES NOT FIT THE CRIME OF FAILURE TO REPORT AND AMOUNTS TO CRUEL AND UNUSUAL PUNISHMENT GIVE THE FACTS SPECIFIC TO THIS CASE.
I. FACTS
{¶ 3} On June 30, 2010, a bill of information was filed with the Common Pleas Court of Lawrence County charging appellant with one count aggravated possession of drugs, a felony of the third degree, in violation of
{¶ 4} On December 15, 2010, the trial court granted appellant‘s motion for judicial release. Appellant was ordered to serve four (4) years of community control sanctions under Intensive Supervised Probation which included completion оf a maximum term of six (6) months intensive residential treatment at the STAR Community Justice Center (“STAR“). The trial court reserved jurisdiction to sentence appellant to serve the remainder of his prison sentence of 1,190 days if hе should violate the terms of his Community Control Sanctions.
{¶ 5} On February 22, 2011, appellant filed a motion for judicial release based on imminent completion of his treatment at STAR. Appellant was released from STAR оn May 3,
YOU shall report in the manner and time as specified in writing by the Bureau of Community Corrections. YOU shall report in person, to the Bureau of Community Corrections once a week on the assigned day. If that day is a holiday, or the Bureau of Community Corrections is closed for any reason, YOU shall report on the next working day. (Emphasis Added.)
{¶ 6} A hearing on the CCS violation took place on May 9, 2012. Lynn Stewart, with the Lawrence County Common Pleas Court Probation Department, and appellant testified at the hearing. Stewart testified that appellant had not reported to her office since his release from STAR on May 3, 2011. At initial reporting, the probation office issued a travel letter in order for appellant to travel to his residence in Highland County for a period of 33 days. Appellant testified that he was employed at Walnut Lake Campground in Jeffersonville, Ohio as a groundskeeрer, shortly after release from STAR. As he understood it, appellant was given permission to “try” monthly reporting instead of weekly reporting due to travel concerns between Highland and Lawrence County. Appellant admitted he understood the reporting requirements of his community control and did not dispute his failure to report after May 3, 2011.
II. ANALYSIS
{¶ 8} Appellant argues that the trial court‘s sentence for viоlations of his community control sanctions should shock the sense of justice of the community under the Eighth Amendment of the United States Constitution‘s prohibition of cruel and unusual punishments. He contends that because he cooperated with the State of Ohio since his initial arrest, assisted in the arrest of a corrupt correctional officer, and successfully completed drug rehabilitation, the sentencing judgment constitutеs cruel and unusable punishment.
{¶ 9} Once a court finds that a defendant violated the terms of her community control sanction, the court‘s decision to revoke community control may be reversed on apрeal only if the court abused its discretion. State v. Wolfson, 4th Dist. No. 03CA25, 2004-Ohio-2750, ¶ 8, citing Columbus v. Bickel, 77 Ohio App.3d 26, 38, 601 N.E.2d 61 (1991). Generally, appellate review of a sentence involves a two step process. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; see, also, State v. Evans, 4th Dist. No. 11CA16, 2012-Ohio-850, at ¶ 5; State v. Moman, 4th Dist. No. 08CA876, 2009-Ohio-2510, at ¶ 6. First, an appellate court must determine whether the trial сourt complied with all applicable rules and statutes. Kalish, supra at ¶ 4. If it did, the appellate court reviews the sentence under the abuse of discretion standard. Id.; State v. Roach, 4th Dist. No. 11CA12, 2012-Ohio-1295, at ¶ 4. An abuse of discretion implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Wolfson at ¶ 8 citing State v. Maurer (1984), 15 Ohio St.3d 239, 253, 473 N.E.2d 768.
{¶ 10} Under Ohio law:
“If the court grants a motion for judicial release under this section, the court shall order the release of the eligible offender, shall plaсe the eligible offender under an appropriate community control sanction, under appropriate conditions, and under the supervision of the department of probation serving the cоurt and shall reserve the right to reimpose the sentence that it reduced if the offender violates the sanction***.
R.C. 2929.20(K) .
{¶ 11} The State of Ohio, in its appellate brief, asks this Court to affirm the trial court‘s sentence рursuant to
***the rules dealing with a violation of an original sentеnce of community control (
R.C. 2929.15 ) should not be confused with the sections of the Revised Code regarding early judicial release (R.C. 2929.20 ) even though the language ofR.C. 2929.20( [K] ) contains the term ‘community control’ in reference to the status of an offender when granted early judicial release. * * * UnderR.C. 2929.15 , a defendant‘s original sentence is community control and he will not receive a term of incarceration unless he violates the terms of his community control[;] whereas, when a defendant is granted judicial release underR.C. 2929.20 , he has already
served a period of incarceration, and the remainder of that prison sentence is suspended pending either the successful completion of a period of community control or the defendant‘s violation of a community control sanction. State v. Jones, 3rd Dist. Nos. 10-07-26 & 10-07-27, 2008-Ohio-2117, at ¶ 12 (citations omitted). See, also, State v. Franklin, 5th Dist. No. 2011-CA-00055, 2011-Ohio-4078, at ¶ 12.
{¶ 12} Upon judicial release, the trial court recorded in its December 13, 2010 journal еntry that appellant will have served 258 days of his original four (4) year prison term at his release to STAR. The entry also stated that : “***the Court reserves jurisdiction to sentence him to serve the balance of the prison sentence if he should violate the terms of his community control sanctions in the future, to wit: 1,190 days, subject to any additional credit for time served.”
{¶ 13} After 133 days in a rehabilitation program at STAR, appellant was released on May 3, 2011. On that day, appellant initially presented himself at the Bureau of Community Corrections. Appellant testified that to his knowledge, because he lived so far away from Lawrence County, thе Bureau would allow him to report once a month. Appellant did not dispute his failure to report since May 3, 2011. He also answered in the affirmative when asked if he understood the reporting requirements as a term of his probation.
{¶ 14} Considering the record and testimony at the hearing on May 9, 2012, the trial court acted within its discretion re-sentencing appellant to two (2) years and six (6) months pursuant to
{¶ 15} Now we turn to appellant‘s constitutional argument that the sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States
{¶ 16} As we have already determined, the trial court acted in accordance with
{¶ 17} Accordingly, we affirm the judgment of the trial court because the record indicates the trial court did not аbuse its discretion in re-imposing appellant‘s original prison sentence after community control violations.
JUDGMENT AFFIRMED.
It is ordered that the trial court‘s JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds therе were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J.: Concurs in Judgment & Opinion.
McFarland, P.J.: Concurs in Judgment Only.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.