State v. LucasState v. Lucas
Jаmes S. Sweeney, James Sweeney Law, LLC, Columbus, Ohio, for appellant.
Thomas Webster, Belpre Law Director, Belpre, Ohio, for appellee.
CRIMINAL APPEAL FROM MUNICIPAL COURT
DATE JOURNALIZED: 9-11-17
ABELE, J.
{¶ 1} This is an appeal from a Marietta Municipal Court judgment that revoked community control and ordered Lindsey Lucas, defendant below and appellant herein, to serve her suspended jail sentence. Appellant assigns the following error for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT WAS NOT PERMITTED TO IMPOSE JAIL TIME FOR A COMMUNITY CONTROL VIOLATION BECAUSE IT FAILED TO COMPLY AT SENTENCING WITH THE REQUIREMENTS OF
R.C. 2929.25 .”
{¶ 2} On October 31, 2014, appellant pled guilty to operating a vehicle while under the influence (OVI) in violation of
{¶ 3} On Jаnuary 20, 2016, appellant‘s probation officer gave notice to appellant that her multiple positive tests for drugs of abuse violated the terms of her probation. As of January 20, 2016, appellant had completed the DIP and served 18 days in jail on probation holders. The statе thus requested that the trial court terminate her community control and that appellant serve the remaining 102-day suspended jail sentence. Subsequently, the trial court found that appellant had violated the terms of her community control, revoked her community control and imposеd 90 days of appellant‘s suspended sentence. This appeal followed.
{¶ 4} In her sole assignment of error, appellant asserts that the trial court could not impose jail time for a community control violation because at sentencing it failed to comply with the
{¶ 6}
(A)(1) Except as provided in sections
2929.22 and2929.23 of the Revised Code or when a jail term is required by law, in sentencing an offender for a misdemeanor, other than a minor misdemeanor, the sentencing court may do either of the following:(a) Directly impose a sentence that consists of one or more community contrоl sanctions authorized by section
2929.26 ,2929.27 , or2929.28 of the Revised Code. The court may impose any other conditions of release under a community control sanction that the court considers appropriate. If the court imposes a jail term upon the offender, the court may imрose any community control sanction or combination of community control sanctions in addition to the jail term.(b) Impose a jail term under section
2929.24 of the Revised Code from the range of jail terms authorized under that section for the offense, suspend all or a portion of the jail term imposed, and place the offender under a community control sanction or combination of community control sanctions authorized under section2929.26 ,2929.27 , or2929.28 of the Revised Code.
{¶ 7}
{¶ 8}
(3) 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 сonditions of the community control sanctions are violated the court may do any of the following:
“(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;
“(b) Impose a more restrictive community control sanction under section
2929.26 ,2929.27 , or2929.28 of the Revised Code, but the court is not required to impose any particular sanction or sanctions;“(c) Impose a definite jail term from the range of jail terms authorizеd for the offense under section
2929.24 of the Revised Code.” (Emphasis added.)
{¶ 9}
{¶ 10} In the case sub judice, the trial court imposed appellant‘s original sentence pursuant to
{¶ 12} In Maxwell, the defendant pled guilty to theft, a first-degree misdemeanor. The trial сourt sentenced the defendant to serve 90 days in jail (a definite jail term) and 2 years of community control sanctions. At the sentencing hearing, the court did not inform the defendant of the possible sanctions for violating his community control. Subsequently, the defendant admitted to a violation of community control, and the trial court sentenced him to serve a jail term. The defendant appealed the trial court‘s imposition of the jail term and argued that the trial court‘s failure to inform him at the sentencing hearing of the consequences of violating community control precluded the court from imposing a jail term for violating community control. We agreed with the defendant and reversed the trial court‘s judgment.
{¶ 13} In Sims, the trial court sentenced the defendant under
{¶ 14} We, however, do not believe that either Maxwell or Sims controls our disposition here because the facts in the case at bar differ from Maxwell and Sims. First, as we pointed out above, Sims is a plurality decision and has very limited precеdential value. Second, in Maxwell and Sims the trial court imposed the sentence under
{¶ 15} Unlike Maxwell and Sims, in the case sub judice the trial court imposed its sentence under
{¶ 16} Accordingly, based on the foregoing reasons, we conclude that the trial court did not err by revoking appellant‘s community control and imposing appellant‘s suspended sentence. Consequently, we hereby overrule appellant‘s sole assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.
If a stay of execution of sentenсe and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendenсy of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty-day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Supreme Court of Ohio in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
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.