STATE OF OHIO v. JORGE L. SANTIAGO
No. 102433
Court of Appeals of Ohio, Eighth Appellate District
November 12, 2015
2015-Ohio-4674
BEFORE: Kilbane, J., Keough, P.J., and E.A. Gallagher, J.
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102433
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JORGE L. SANTIAGO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-588612-C
BEFORE: Kilbane, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: November 12, 2015
Erin R. Flanagan
Erin R. Flanagan, Ltd.
75 Public Square - Suite 305
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Anthony Thomas Miranda
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Jorge L. Santiago (“Santiago”), appeals from the sentence imposed in connection with his guilty pleas to theft and escape. Having reviewed the record and the controlling case law, we find no error and affirm.
{¶2} In September 2014, Santiago and codefendants, Dusti Lee Mays (“Mays”) and Luis Perez (“Perez”), were charged with theft, in violation of
{¶3} On November 6, 2014, all three defendants entered into plea agreements with the state. As is relevant to the matter before us, Santiago pled guilty to the fifth-degree felony theft as charged in Count 1 of the indictment and pled guilty to fifth-degree felony escape, a reduced charge from Count 2 of the indictment.1
{¶4} The trial court obtained a Treatment Alternatives to Street Crime (“TASC”) evaluation and a presentence investigation (“PSI”) for Santiago prior to his sentencing on December 12, 2014. At the sentencing hearing, the trial court noted that the instant matter was Santiago’s 14th felony conviction. Santiago acknowledged that he had been released from prison several months prior to the latest incident at Walmart. He stated that his crimes are the result of an addiction to heroin.
pursuant to
R.C. 2929.14(C)(4) for the reasons stated on the record, when defendant is returned to jail pursuant to the local incarceration program * * * defendant will serve 90 days in jail and two years of community control sanctions including CBCF [a community-based correction facility].
to be followed by probation with regular reporting for the remainder of the three-year term.2
The trial court also ordered that all three defendants are to be jointly and severally responsible for restitution to Walmart in the amount of $940.13.3
{¶6} Santiago now appeals and assigns the following error for our review:
Assignment of Error
The trial court erred in its imposition of a stacked sentence of prison time and confinement in the community based correction facility on Count Two of Mr. Santiago’s plea.
{¶8} Santiago argues that, pursuant to State v. Sutherlin, 154 Ohio App.3d 765, 2003-Ohio-5265, 798 N.E.2d 1137, ¶ 14 (1st Dist.) and
{¶9}
{¶10} This court has held that “the sentencing statute does not allow a trial court to impose both a prison sentence and community control for the same offense.” State v. Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d 79, ¶ 5 (8th Dist.). In this matter, however, the trial court imposed a prison term for the theft offense and imposed a jail term,
{¶11} With regard to the sentence imposed for Count 2, escape, which is 90 days in jail and two years of community control sanctions, we note that pursuant to
[i]f in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions authorized pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code.
The duration of all community control sanctions imposed upon an offender shall not exceed five years.
{¶12}
(1) A term of up to six months at a community-based correctional facility that serves the county;
(2) Except as otherwise provided in division (A)(3) of this section and subject to division (D) of this section, a term of up to six months in a jail;
* * *
(4) A term in a halfway house;
(5) A term in an alternative residential facility.
Id.
The law also favors the imposition of sentences composed of one or more community-control sanctions, particularly for low-level felonies. See
R.C. 2929.13(B)(1) (requiring a community-control sanction of at least one year’s duration in specified circumstances) and2929.15(A)(1) (authorizing a sentence of one or more community-control sanctions when imposition of a prison term is not mandatory). The policy favoring community-control sanctions is a reflection of the general policy inR.C. 2929.11(A) that a sentence should be composed of the “minimum sanctions” necessary to protect the public and punish individuals while not placing an “unnecessary burden” on state and local resources.A community-control sentence for a felony offender under
R.C. 2929.15(A)(1) “consists of one or more community control sanctions authorized pursuant to section2929.16 [community residential sanctions],2929.17 [nonresidential sanctions], or2929.18 [financial sanctions] of the Revised Code.” Terms of incarceration in a community-based correctional facility, a halfway house, or a local jail are called “community residential sanctions,” and a court sentencing for a felony is authorized to impose “a term of up to six months in a jail.”R.C. 2929.16(A) . Local probation, day reporting, house arrest, community service, and curfew are classified as “nonresidential sanctions.”R.C. 2929.17 (“the court imposing a sentence for a felony upon an offender who is not required to serve a mandatory prison term may impose any nonresidential sanction or combination of nonresidential sanctions”). Restitution, fines, and costs are “financial sanctions.”R.C. 2929.18(A) . In short, the statutes authorize a broad variety of community-control sanctions, and trial courts are empowered to “impose any other conditions of release under a community control sanction that the court considers appropriate * * *.”R.C. 2929.15(A)(1) .Given the general principles set forth above, it seems apparent that the legislature intended that trial courts should have discretion to fashion community-control sentences that punish and protect but do not unnecessarily waste scarce resources.
Amos at ¶ 10-12.
{¶14} Thus, under
{¶15} Further, as explained in State v. Lemaster, 3d Dist. Union No. 14-03-04, 2003-Ohio-4415, ¶ 12:
The trial court has discretion to decide which community control sanctions to select as part of an offender’s sentence. See
R.C. 2929.13(A) and2929.15 .R.C. 2929.16 and2929.17 provide seventeen different nonprison sanctions that can be used to impair an offender’s freedom, andR.C. 2929.18 provides four kinds of financial sanctions. One such sanction available to the court is listed inR.C. 2929.16(A)(2) , which provides that a court may order a term of up to six months in jail as part of an offender’s sentence. A “jail” sentence is part of a community control sentence and is not a “prison” sentence. As such, the trial court did not act contrary toR.C. 2929.13(B) and did not, as Lemaster maintains, order him to serve a “dual sentence” by ordering him to serve sixty (60) days in jail as part of his community control. The trial court acted well within its discretion.
{¶16} In accordance with the foregoing, it is clear that the relevant statutory provisions allow for a sentence that includes a combination of the sanctions that are provided in
{¶17} The assignment of error is without merit.
{¶18} Judgment is 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR