State v. Peck

Nov 5, 2009

92374

Versions:2009-Ohio-5845

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Brad S. Meyer
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113

ATTORNEY FOR APPELLEE

Steve W. Canfil
Standard Building, Suite 2000
1370 Ontario Street
Cleveland, OH 44113

ON RECONSIDERATION¹

MELODY J. STEWART, J.:

{¶ 1} Defendant-appellee, Ricky Peck, pleaded guilty to one count of receiving stolen property, a fifth degree felony. The court sentenced Peck to a residential sanction of 45 days in the county jail and ordered him to make restitution to the victim in the amount of $1,500. The state of Ohio appeals from this sentence pursuant to R.C. 2953.08(B)(2), arguing that the court 1) did not consider the appropriate statutory factors when imposing sentence, 2) should not have imposed a community control sanction without first obtaining a presentence investigation report, and 3) terminated community control sanctions before a “significant period of time” elapsed. We agree that the court had no authority to impose a community control sanction without first obtaining a presentence investigation report, so we reverse and remand for resentencing.

{¶ 2} R.C. 2951.03(A)(1) provides in part, “[n]o person who has been convicted of or pleaded guilty to a felony shall be placed under a community control sanction until a written presentence investigation report has been considered by the court.” Likewise, Crim.R. 32.2 states “[i]n felony cases the court shall, and in misdemeanor cases the court may, order a presentence investigation and report before imposing community control sanctions or granting probation.”

{¶ 3} There is nothing in the record to show that a presentence investigation report had been prepared prior to sentencing, nor did the court make any reference to having considered a presentence investigation report during sentencing. The terms of R.C. 2951.03(A)(1) and Crim.R. 32.2 are mandatory, so the court had no authority to order a community control sanction absent compliance with the statute and rule. See State v. Disanza, Cuyahoga App. No. 92375, 2009-Ohio-5364, at ¶8; State v. Pickett, Cuyahoga App. No. 91343, 2009-Ohio-2127; State v. Walker, Cuyahoga App. No. 90692, 2008-Ohio-5123. We therefore sustain the state‘s second assignment of error and remand for resentencing. The remaining assignments of error are moot. See App.R. 12(A)(1)(c).

{¶ 4} This cause is reversed and remanded for proceedings consistent with this opinion.

It is ordered that the parties bear their own costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

MELODY J. STEWART, JUDGE

KENNETH A. ROCCO, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR

Notes

The original announcement of decision, , is hereby vacated. This opinion, issued upon reconsideration, is the court‘s journalized decision in this appeal. See App.R. 22(C); see, also, S.Ct.Prac.R. II, Section 2(A)(1).