State v. MannState v. Mann
OPINION
{¶ 1} Dеfendant-appellant, Douglas W. Mann (hereinafter, “appellant“), appeals from judgment of conviction and sentence of the Common Pleas Court of Crawford County revoking community control and reinstating appellant‘s originаl sentence.
{¶ 2} The instant matter stems from a five count indictment against appellant filed on September 14, 1999 (Case No. 99 CR-0122). The indictment charged appellant with five fourth degree felony counts of Corruption of a Minor, in violation of
{¶ 3} Severаl months after being sentenced to prison, appellant moved the court for judicial release. On December 6, 2000, the trial court granted appellant‘s motion, reduced the remaining prison sentence imposed on apрellant in Case No. 99 CR-0122, and, as part of the conditions of the early judicial release, placed appellant on community control for a period of three years under supervision of the local adult probation department. The trial court further ordered that appellant‘s community control in Case Nos. 97 CR-0022 and 98 CR-0012 be reinstated.
{¶ 4} As part of the conditions of his community control, appellant was required to complete a sex offender prоgram conducted by Community Counseling Services. On March 17, 2003, the state filed a motion to revoke appellant‘s community control in Case No. 99 CR-0122,1 claiming that appellant had violated the conditions of community control by allegedly failing to complete the sex offender program and also by failing to pay outstanding court costs. Appellant entered denials to the allegations. After a hearing on the matter on July 16, 2003, the trial court found that appellant had violated the terms and conditions of his community control and reimposed the balance of appellant‘s three year prison sentence from Case No. 99 CR-0122.
{¶ 5} It is from this judgment which appellant now appeals and sets forth three assignmеnts of error for our review.
{¶ 6} Prior to considering appellant‘s assignments of error, we begin by noting that the rules dealing with a violation of an original sentence of community control (
{¶ 7}
{¶ 8} In contrast, an offender who has been granted early judicial releasе has already been ordered to serve a term of incarceration as part of the original sentence but, upon motion by the “eligible offender,” is released early from prison. See
{¶ 9} Because appellant herein was granted early judicial release,
ASSIGNMENT OF ERROR NO. I
The trial court errеd in sentencing the defendant to incarceration in prison, where the defendant was never properly notified as to a term of such incarceration when he was sentenced.
{¶ 10} Appellant maintains that the trial court lacks thе authority to reimpose sentence upon him because it failed to advise him, in open court, that it reserved the right to reimpose the remainder of appellant‘s three year sentence in Case No. 99 CR-0122 if appellant violated the conditions of his community control. For the reasons that follow, we find appellant‘s contention to be without merit.
{¶ 11}
[i]f the court grants a motion for judicial release under this section, the court shall order the release оf the eligible offender, shall place the eligible offender under an appropriate community control sanction, under appropriate community control conditions, and under the supervision of the department of probation serving the court, and shall reserve the right to reimpose the sentence that it reduced pursuant to the judicial release if the offender violates the sanction. If the court reimposes the reduced sentence pursuant to this reserved right, it may do so either concurrently with, or consecutive to, any new sentence imposed upon the eligible offender as a result of the violation that is a new offense. * * *
{¶ 12} Although the preferred procedure is for the trial court to explicitly “reserve” on the reсord or in the judgment entry its right to reimpose sentence from which the eligible offender is receiving early judicial release, the failure of the trial court to do so does not deprive the court of authority to later reimpose thе conditionally reduced sentence. This court held in State v. Monroe, 3d Dist. Nos. 4-01-27, 4-01-28, 2002-Ohio-1199:
[
R.C. 2929.20(I) ] states that the trial court shall reserve the right to reimpose the sentence before the offender can be released. [R.C. 2929.20(I) ], unlike other sentencing statutes,2 does not require that the trial court to make a finding that it has reserved the right to reimpose the sentence nor does it require that the trial court place the reservation on the record. By ordering the release of the offender pursuant toR.C. 2929.20(I) , the trial court has implicitly resеrved the right to reimpose the original sentence in order for the offender to be released. [R.C. 2929.20(I) ] does not provide for any alternative. Without the reservation, the release of the offender is not permitted. Since [apрellant] was granted judicial release, the trial court has reserved the right to reimpose the original sentence by operation ofR.C. 2929.20(I) .3
{¶ 13} By virtue of being subject to the specific term of imprisonment imposed at the original sentencing hearing, it cannot be said that the eligible offender has not been informed of the specific term of imprisonment conditionally reduced by the trial court‘s granting of early judicial release. Monroe, supra.
{¶ 14} Consistent with our opinion in Monroe, supra, we find that the trial court herein did not err in reimрosing the remainder of appellant‘s sentence in Case No. 99 CR-0122. Appellant‘s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
The trial court erred in sentencing the defendant for committing the “worst form of the offense“, as the offense here was the community control violation, and there was no showing that this defendant committed the “worst form” of community control violation.
{¶ 15} In this assignment of error, appellant maintains that upon reimposing sentence in Case No. 99 CR-0122, the trial court was required to fully consider all the statutory factors as if it were sentencing him anew. See generally,
{¶ 16} In State v. Gardner (Dec. 1, 1999), Union App. No. 14-99-24, 1999-Ohio-938, this court held that if the conditions of the judicial release are violated,
{¶ 17} Accordingly, appellant‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. III
The trial court erred in finding that defendant hаd violated the terms of the community control violation [sic], as the defendant had not committed a willful, knowing violation of the requirement that he complete the sex offender‘s program.
{¶ 18} It is undisputed that appellant failed to cоmply with the terms of his judicial release and the consequent community control by failing to complete the Community Counseling Services sex offender program as ordered by the trial court. In this assignment of error, however, appellant maintains that his failure to complete the sex offender program was not his fault and that his failure in this regard was the “most trivial” violation of the community control sanctions imposed upon him, and, therefore, the trial court was not warranted in rеimposing the remainder of appellant‘s sentence in Case No. 99 CR-0122.
{¶ 19} The evidence and record in this case, including the transcript from the July 16, 2003 hearing on appellant‘s alleged violations of the terms of his judicial release, support the trial court‘s judgment that appellant violated the conditions of the community control imposed upon him. The trial court did not find appellant‘s reasons for failing to complete the sex offender program to be cоmpelling, and neither do we. Upon a showing that appellant had violated the terms of his community control, the trial court is clothed with the authority, pursuant to
{¶ 20} Accordingly, appellant‘s third assignment of error is overruled.
{¶ 21} Having found no error prejudicial to appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed. Shaw, P.J. and Bryant, J., concur.