Lead Opinion
{¶ 2} On February 19, 2003, Osborne entered written and oral guilty pleas to the crime of theft from an elderly person or disabled adult, a fourth degree felony in violation of R.C.
{¶ 3} Osborne timely appeals his sentence and raises the following assignments of error:
{¶ 4} "[1.] The trial court erred to the prejudice of Appellant by not imposing the minimum sentence for the offense for which Appellant pleaded guilty to, which sentence is in violation of the statutory guidelines and is contrary to law.
{¶ 5} "[2.] The Trial Court erred to the prejudice of the Appellant by imposing the maximum sentence in violation of statutory mandates which sentence is contrary to law.
{¶ 6} "[3.] The Trial Court erred to the prejudice of the Appellant by imposing the maximum sentence in violation of statutory mandates which sentence is contrary to law."
{¶ 7} All three of Osborne's assignments of error challenge the sentencing court's imposition of "the maximum sentence of eighteen months" for a fourth degree felony, if Osborne fails to comply with the community control sanctions. If the trial court had imposed more than a six month prison term as the initial sentence on Osborne, who has not previously served a prison term, the sentencing court would have had to find that the shortest prison term would demean the seriousness of Osborne's conduct or would not adequately protect the public from future crime by Osborne. R.C.
{¶ 8} The State argues that Osborne's appeal is premature. According to the State, "[t]he 18 months in prison referenced in the trial court's sentencing entry merely put [Osborne] on notice that he could be subjected to that much potential time in prison if he were to violate the terms of his community control sanctions." In other words, there can be no error in the sentence complained of because the court has not imposed that sentence. We agree with the State.
{¶ 9} The true sentence imposed on Osborne is not a term of imprisonment, but rather three years of community control sanctions including one hundred fifty days in jail and $11,700 in restitution. When a trial court sentences an offender to community control sanctions, the court is statutorily required, "at the time of sentencing, [to] notify the offender of the specific prison term that may be imposed for a violation of the conditions of the sanction." State v. Brooks,
{¶ 10} This conclusion is confirmed by the Ohio Supreme Court's construal of R.C.
{¶ 11} Since notification of the possible imposition of the maximum sentence need not have occurred at Osborne's original sentencing hearing, we hold that the sentencing court need not have complied with R.C.
{¶ 12} Osborne's three assignments of error are without merit. The sentence imposed by the Lake County Court of Common Pleas in its March 23, 2004 Judgment Entry of Sentence is affirmed.
O'Toole, J., Concurs, O'Neill, J., dissents with a Dissenting Opinion.
Dissenting Opinion
{¶ 13} I respectfully dissent. The sentence is constitutionally infirm in light of the United States Supreme Court's decision in Blakely v.Washington.1
{¶ 14} For the reasons stated in my prior concurring and dissenting opinions, the trial court's imposition of a sentence violated the Sixth Amendment right to a jury trial, as explained in Blakely v.Washington.2 This matter should be remanded for resentencing consistent with Blakely v. Washington.
{¶ 15} In addition, I disagree with the majority that a trial court, at the time of sentencing, can impose a "potential" sentence for the violation of a term of community service. In State v. Brooks, the Supreme Court of Ohio held that the specific prison term must be stated on the record at the sentencing hearing as a condition precedent to the imposition of prison time for the violation of community control sanction.3 As a result, the defendant receives notice at the time of sentencing of the specific prison term he may have to serve. There is more than a semantic difference between a "potential" sentence and a "specific prison term."
{¶ 16} I believe the law in Ohio is clear that even when community control sanctions are imposed, the sentencing court must state the specific penalty to be invoked for violation of those terms; and that the sanction must be explained to the defendant at the sentencing hearing. As stated by the Supreme Court of Ohio, even multiple, subsequent violations trigger the statutory mandates:
{¶ 17} "Pursuant to R.C.
{¶ 18} Pursuant to Comer, Brooks, and Fraley, it is at the sentencing hearing when the court is required to state a specific penalty for a specific conduct.5 To hold otherwise opens the door to the possibility of defendants being sentenced to maximum sentences for violating the terms of community control where the original crime did not support such a sentence. By way of example, a defendant whose original crime supported a minimum sentence could readily be seen as an example of one who could benefit from, say, community control with the condition that he participate in drug counseling. Should the individual have a personality conflict with his drug counselor, and then be dropped from the program, would the trial court be justified for "throwing the book" at the individual for his later "failure," when the earlier crime did not warrant such treatment? Obviously not. The "truth in sentencing" in Ohio we all seek requires that defendants be sentenced for the crimes they commit. Such sentences should not be enhanced for violations of community control sanctions.
{¶ 19} The Supreme Court of Ohio was correct when it stated that courts have the right to impose penalties for SUBSEQUENT community control violations.6 In the instant matter, the trial court left sentencing open for further discussion when it said "violation of any of this sentence shall lead to a more restrictive sanction, a longer sanction, or a prison term of eighteen (18) months." That is not specific, and as a matter of law, should be reversed.