STATE OF OHIO v. CHRISTOPHER RICHMOND
No. 97531
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 30, 2012
[Cite as State v. Richmond, 2012-Ohio-3946.]
Stewart, P.J., Boyle, J., and Rocco, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-554731
JUDGMENT: REVERSED AND REMANDED FOR RESENTENCING
RELEASED AND JOURNALIZED: August 30, 2012
William D. Mason
Cuyahoga County Prosecutor
BY: Andrew Rogalski
T. Allan Regas
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
{¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court‘s sentence of 30 days in county jail and a $200 fine imposed on defendant-appellee, Christopher Richmond. For the following reasons, we reverse.
{¶2} After Richmond pleaded guilty to an amended indictment of harassment by inmate, a fifth degree felony, the trial court sentenced him to the above-noted sentence with credit for time served and ordered him to be released.
{¶3} The state, in its sole assignment of error, argues that because Richmond pleaded guilty to a fifth degree felony, under Ohio law the trial court is limited to a choice between sentencing Richmond to one or more community control sanctions or a prison sentence of 6-12 months. The state contends that Richmond was not placed under a community control sanction because no presentence investigation report was prepared, and that 30 days of incarceration in the county jail does not fulfill the statutory minimum term of imprisonment. The state complains that the sentence was therefore not authorized by law and requests this court to reverse and remand for resentencing.
{¶4} Sentences are reviewed by applying a two-prong test as set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, we must review whether the trial court complied with all applicable rules and statutes in imposing the sentence to conclude whether the sentence is contrary to law. Kalish at ¶ 4. If the
{¶5} We note that a prosecutor was present at Richmond‘s sentencing hearing, but did not object when the trial court sentenced Richmond without the benefit of a presentence investigation report. Accordingly, the state has waived all but plain error.
{¶6} In the absence of objection, this court may notice plain errors or defects that affect substantial rights, pursuant to
{¶7} We have reviewed the record and begin our analysis with determining whether a sentence that is rendered without the benefit of a statutorily-mandated presentence investigation report is authorized by law.
{¶8}
{¶9} This court has previously held that a trial court must order and then review a presentence investigation report prior to considering the imposition of community control sanctions. State v. Mitchell, 141 Ohio App.3d 770, 753 N.E.2d 284 (8th Dist.2001),
{¶10} Similar to the cases cited, in this case, the trial court deviated from the requirements mandated by law; namely, to obtain and consider a presentence investigation report prior to ordering a community control sanction. Therefore, we must again reverse the trial court and order it to comply with the sentencing obligations mandated by law.
{¶11} The state also asserts that supervision is obligatory when community control sanctions are imposed. Therefore, the state argues that Richmond‘s sentence was not a valid community control sanction.
{¶12} When a trial court sentences a defendant to community control sanctions,
[s]hall 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 the offender from this state without the permission of the court or the offender‘s probation officer.
{¶13} Community residential sanctions are a form of community control sanctions, and the time that Richmond spent in jail constitutes a permissible
{¶14} Financial sanctions also fall within the domain of community control sanctions. See State v. Bates, 8th Dist. No. 77522, 2000 WL 1643596 (Nov. 2, 2000), at *1;
{¶15} Richmond‘s fine and jail sentence are therefore permissible community control sanctions. The issue remains, however, whether probation department supervision is required when a defendant is granted credit for time served and has an outstanding financial sanction. The state contends that Richmond‘s sentence is unquestionably at odds with the binding language of
{¶16} This court recently issued the en banc decision of State v. Nash, 8th Dist. No. 96575, 2012-Ohio-3246, where the majority of the court held that when a defendant is placed on community control sanctions, probation department supervision is “only
{¶17} This cause is reversed and remanded for proceedings consistent with this opinion.
It is ordered that appellant recover of appellee its 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
MELODY J. STEWART, PRESIDING JUDGE
KENNETH A. ROCCO, J., CONCURS;
MARY J. BOYLE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
{¶18} Our court recently issued the en banc decision of State v. Nash, 8th Dist. No. 96575, 2012-Ohio-3246, as referenced by the majority in this opinion. Because I joined the Honorable Judge Sean Gallagher and the Honorable Judge Colleen Conway Cooney in their dissents in en banc Nash, I likewise dissent in part as it relates to Richmond‘s sentence not being a valid one.
{¶19} I agree with the majority that a written presentence investigative report is statutorily mandated to be prepared and considered before a trial court can sentence one to community control sanctions. Because the trial court failed to do so, as the majority found, Richmond‘s sentence is vacated, as it is not authorized by law. However, I disagree with the majority that probation supervision is not required and would follow State v. Eppinger, 8th Dist. No. 92441, 2009-Ohio-5233.