STATE OF OHIO v. ANTWAN NASH
No. 96575
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 19, 2012
[Cite as State v. Nash, 2012-Ohio-3246.]
JUDGMENT: AFFIRMED
BEFORE: En Banc Court
RELEASED AND JOURNALIZED: July 19, 2012
William D. Mason
Cuyahoga County Prosecutor
BY: James M. Rice
T. Allan Regas
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
{1} Pursuant to
{2} The apрellant state urges us to follow our precedent, which would require the trial court to order probation department supervision of every defendant sentenced to a community control sanction. State v. Eppinger, 8th Dist. No. 92441, 2009-Ohio-5233. Upon en banc review, we overrule our decision in Eppinger and hold that
I.
{3} Nash pleaded guilty to one count of drug possession, a fifth degree felony. The trial court sentenced him to a three-day jail term with credit for three days served and
The sentence imposed by the trial court is contrary to law as the trial court failed to sentence appellee to a valid sentence of imprisonment or community control sanctions, failed to place appellee under supervision, and fаiled to inform appellee of the consequences of appellee‘s failure to pay the fine or costs.
II.
{4} Our review of trial court sentencing decisions is guided by State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Kalish sets forth a two-prong test that guides our review of felony sentences. Under the first prong, we review whether the trial court complied with all applicable rulеs and statutes to determine if the sentence is clearly and convincingly contrary to law. If the first prong is satisfied, then we review the trial court‘s decision under an abuse-of-discretion standard. Id. at ¶ 4.
{5} The issue raised by the state in this case was first visited by this court in Eppinger.1 There, the trial court sentenced the defendant to a 25-day jail term with
{6} The sentence in this case, like the sentence in Eppinger, included a jail term and a fine. The trial court pronounced sentence against Nash as follows: “Well, this is a 2009 case, and it didn‘t happen yesterday. You‘re sentenced to three days in County
{7} Jail is a community residential sanction under
shall place the offender under the general control and supervision of a department of probation in the county that serves the court for the purposes of reporting to the court a violation of any condition of the sanctions, any condition of release under a community control sanction imposed by the court, a violation of law, or the departure of thе offender from this state without the permission of the court or the offender‘s probation officer.
(Emphasis added.)
{8} The language “shall place the offender under the general control and supervision of the department of probation” must be read in conjunction with the purpose of supervising a defendant on community control: to report a “violation of any condition of the sanctions, any condition of release under a community control sanction imposed by the court, a violation of law, or the departure of the offender from this state without the permission of the court or the offender‘s probation officer.” Id. Thus, supervision is only necessary where there is a condition that must be overseen or a term
{9} Additionally, we find this court‘s reliance in Eppinger on a portion of a comment from the Ohio Felony Sentencing Law treatise should be considered in the context of its accompanying text. Specifically, Eppinger cited the comment, “‘The sentencing court has discretion to impose either a sentence of imprisonment or community control sanctions.‘” Eppinger at ¶ 9, quoting Ohio Felony Sentencing Law at 109. The full text, which was not cited in Eppinger, provides as follows:
The sentencing court has discretion to impose either a sentence of imprisonment or community control sanctions (1) in accordance with the overriding purposes of sentencing — protection of the public and punishment of the offender — and (2) after determining the relative seriоusness of the defendant‘s conduct and the likelihood that the defendant will commit additional offenses, (3) provided that the sentence does not impose an unnecessary burden on governmental resources.
(Emphasis added; footnotes omitted.) Ohio Felony Sentencing Law at id.
{10} We believe this comment suggests that a trial court has fairly broad discretion in fashioning sentences. We find support for this belief in the Revised Code.
{11}
[a] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish thе offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.
{12} In light of the above, it may be that, in its discretion, the sentencing court finds that time served was sufficient “to protect the public frоm future crime by the offender and others and to punish the offender,” there is no need for the defendant to be supervised and monitored, and monitoring payment of a $100 fine would “impose an unnecessary burden on the state or local government resources.” Removing that discretion from a sentencing court could result in the inefficient result of a defendant having to meet with a probation officer for no reason. Further, the costs associated with involving the probation department for the collection of a $100 fine would likely exceed
{13} The Second and Ninth Appellate Districts have also considered this felony sentencing issue and come to the same сonclusion, albeit on somewhat different reasoning. In State v. Allen, 9th Dist. Nos. 10CA009910 and 10CA009911, 2011-Ohio-3621, the Ninth Appellate District found that:
[i]n some cases the facts do not support a finding under Section 2929.13(B)(1) [for imposing a prison term], but the sentencing court also determines that a community control sanction is inconsistent with the purposes and principles of sentencing, thus taking the case outside the scope of both 2929.13(B)(2)(a) and (b). In such cases, the court is “not compelled * * * to impose a prison sentence or * * * to impose a community control sanction. Rather, it [is] within the trial court‘s judgment to determine, after considering the factors set forth in R.C. 2929.12, what type of sentence would best serve the overriding purposes and principles of sentencing contained in R.C. 2929.11.”
Id. at ¶ 10, quoting State v. Sutherland, 2d Dist. No. 97CA25, 1997 WL 464788 (Aug. 15, 1997).
{14} In light of the above, Nash‘s sentence was not contrary to law, the first prong under Kalish.3
{15} We also find that the trial court did not abuse its discretion in sentencing Nash. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Nash pleaded guilty to a fifth degree felony count of drug possession. The charge resulted from Nash having Oxycodone in his pocket, which was not prescribed for him. Prior to this case, and at the time of sentencing, Nash was working full time and paying child support. Nash‘s mother had recently passed away and he was “getting [his] life together.” He was also supporting his two younger brothers. On this record, thе trial court‘s sentence was not an abuse of discretion, the second prong under Kalish.
{16} Finally, the state‘s assignment of error implies that costs were assessed to Nash and the trial court failed to advise him of the consequences of not paying costs. But costs were waived here. The state also contends that the trial court “failеd to notify Nash of the consequences of his failure to pay his fine as required by
{17} In light of the above, the state‘s assignment of error is overruled.
III.
{18} Judgment affirmed.
It is ordered that appellee recover of appellant 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 common pleas court to carry this judgment into execution. Case remanded to trial court for execution of sentence.
LARRY A. JONES, SR., JUDGE
PATRICIA ANN BLACKMON, A.J.,
FRANK D. CELEBREZZE, JR., J.,
EILEEN A. GALLAGHER, J.,
MARY EILEEN KILBANE, J.,
KATHLEEN ANN KEOUGH, J.,
KENNETH A. ROCCO, J.,
MELODY J. STEWART, J., and
JAMES J. SWEENEY, J., CONCUR;
COLLEEN CONWAY COONEY, J., DISSENTS WITH SEPARATE OPINION WITH SEAN C. GALLAGHER, J., and MARY J. BOYLE, J., CONCURRING;
SEAN C. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION WITH COLLEEN CONWAY COONEY, J., and MARY J. BOYLE, J., CONCURRING
COLLEEN CONWAY COONEY, J., DISSENTING:
{19} I concur in the dissenting opinion of Judge Sean Gallagher and write
{20} I find it ironic that the trial cоurt has not complied with this court‘s prior mandates, and now the en banc majority changes the law in the Eighth District, ultimately rewarding this noncompliance.
SEAN C. GALLAGHER, J., DISSENTING:
{21} The mere fact that an appellate court would have to interpret whether supervision is required when a community control sanction is imposed is yet another blemish on the legacy of sentencing reform brought on by S.B. 2. While I understand the analytical gymnastics the majority was forced to hurdle to answer this question, and admire their effort, I respectfully dissent. I would follow our precedent in Eppinger, 8th Dist. No. 92441, 2009-Ohio-5233. Until the legislature addresses the overly confusing language in Ohio‘s sentencing statutes brought on by S.B. 2, I believe judicial interpretations of the statutе only add to the problems.
{22}
(2)(a) If a court sentences an offender to any community control sanction or combination of community control sanctions authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, the court shall place the offender under the general control and supervision of a department of probation * * *. (Emphasis added.)
{23} In this case, part of the sentence was a $100 fine, which even the majority acknowledges is a community control sanction under
{24} Thus, because a community control sanction was imposed, probation supervision was mandatory. If the legislature wanted to exempt fines as community control sanctions from supervision, it should have said so.
{26} A big part of this problem seems to center on the fact that the lеgislature assumed that, when dealing with felony crimes, judges would impose either a prison term or a community control sanction or sanctions for felony crimes. The logical assumption is that because these are felony crimes, the nature of the community control sanctions would naturally warrant supervision. When, as here, judges look for alternatives to this aрproach, a “hole” or “gap” in the statute either exists or is created by the actions of the trial judge.
{27} Despite numerous passages in
{28} If this case stands for anything, it should be a call for the legislature to revisit the undefinable language of S.B. 2 and finally either fix it once and for all or assign it to the ash heap of history.