State v. StrunkState v. Strunk
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellant
William G. Fowler, 12 W. South Street, Lebanon, Ohio 45036, for defendant-appellee
O P I N I O N
PIPER, J.
{¶ 1} Plaintiff-appellant, the state of Ohio, appeals a decision of the Warren County Court of Common Pleas granting judicial release to defendant-aрpellee, Clinton Strunk.
{¶ 2} In 2009, Strunk was indicted and charged with aggravated robbery, which included a firearm specification, and was later released on bond. While Strunk was out on bond, he committed new offenses and was subsequently indicted for attempted murder and
{¶ 3} In November 2009, the trial court sentenced Strunk to two years on the robbery charge, as well as a one-year mandatory term for the firearm specification. At the same hearing, the trial court sentenced Strunk to three years for felonious assault. The trial court ordered the two-year sentence for robbеry and one-year-mandatory sentence for the firearm specification to be served consecutive to the three-year sentence for felonious assault. Therefore, Strunk‘s aggregate sentence was six years.
{¶ 4} In July 2011, Strunk moved for judicial release under the case number associated with the robbery charge and firearm specification. The state opposed Strunk‘s motion, and argued that Strunk was not eligible to seek judicial release because the trial court imposed an aggregate six-year sentence, and Strunk had not served enough of his sentence to be considered eligible for judicial release. Strunk argued that he was eligible for judicial release on the robbery charge because he had been sentenced in two unrelated cases, and that the cases hаd never been consolidated by the court.
{¶ 5} The trial court held a hearing on the matter, and found that Strunk had served the one-year mandatory sentence for the firearm specification connected to the robbery charge. The trial court also found Strunk had filed his motion for judicial release after serving 180 days of the two-year sentence. The court granted judicial release to Strunk speсific to the sentence for robbery and the accompanying firearm specification, but stated that it was not granting judicial release on the felonious assault three-year sentence. The court then modified Strunk‘s sentence by entry, and placed Strunk on three years of community control for the robbery. The state now appeals the trial court‘s decision, raising the following assignment of error:
{¶ 7} Thе state argues in its sole assignment of error that the trial court erred by granting Strunk judicial release.
{¶ 8} We begin by noting that because this case requires us to interpret a statutory provision, we employ a de novo standard of review. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163 ¶ 8. In a de novo review, this court independently reviews the record without giving deference to the trial court‘s decision. State v. Kormos, 12th Dist. No. CA2011-08-059, 2012-Ohio-3128.
{¶ 9} According to
{¶ 10}
if the aggregated nonmandatory prison term or terms is five years, the eligible offender may file the motion not earlier than four years after the eligible offеnder is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, not earlier than five years after the expiration of all mandatory prison terms.
If the stated prison term is at least two years but less than five years, the eligible offender may file the motion not earlier than 180 days аfter the offender is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, not earlier than 180 days after the expiration of all mandatory prison terms.
By asking this court to apply
{¶ 12} We agree with Strunk that the applicable statute is that which was in effect at the time of his sentencing. “The decision of the sentencing court to grant judicial release is part of the original sentence, albeit a reduction in the amount of prison time the offender must serve.” State v. Peoples, 151 Ohio App.3d 446, 2003-Ohio-151, ¶ 21(10th Dist.).
{¶ 13} Although we agree that the statute from 2009 aрplies because that is the date that Strunk received his sentence, we disagree with Strunk‘s assertion that for purposes of determining judicial release, he received two separate sentences. As previously stated, Strunk received an aggregate sentence of six years because his three-year sentence for the robbery and related firearm specification ran conseсutive to his three-year sentence for
{¶ 14} Given Strunk‘s six-year sentence, of which five years were nonmandatory, the controlling statute in effect in 2009,
If the stated prison term is five years or more but not more than ten years, the eligible offender mаy file the motion not earlier than five years after the eligible offender is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, not earlier than five years after the expiration of all mandatory prison terms.
{¶ 15} Unlike the version currently in place, the 2009 statute does not include the term “aggregated” when referring to the total sentence if multiple sentences are given. Instead, the focus of the 2009 statute is on the “stated prison term.” A review of the record indicates that Strunk‘s “stated prison term,” was six years.
{¶ 16} As defined by
{¶ 17} While Strunk argues that he was sentenced in two disparate cases through separate indictments and separate case numbers, the version of
{¶ 19} Conversely, the Second District held that consecutive sentences imposed by the same sentencing court should be treated as one “stated prison term.” State v. Anderson-Melton, 2nd Dist. No. 18703, 2001 WL 1388442 (Nov. 9, 2001). In Anderson-Melton, the defendant was sentenced to three consecutive sentences for receiving stolen property, insurance fraud, and illegal use of food stamps. The court relied on the definition of “stated prison term” and conсluded that the consecutive sentences imposed by the same sentencing court should be considered as a single stated prison term, not as multiple terms. In so holding, the court considered that in addition to the definition of “stated prison term” as a combination of all sentences imposed by the sentencing court, the statute provides that the time frame for judicial release begins upon delivery “to а state correctional institution.” Therefore, the court concluded that a defendant is only delivered once to the prison, rather than each and every time he begins a new portion of a consecutive sentence. Id. at *1.
{¶ 20} While we can accept the application of the Second District‘s reasoning within
{¶ 21} Strunk‘s six-year sentence was handed down by the sentencing court. The court made its sentencing determination after accepting Strunk‘s guilty pleas to robbery and felonious assault, and after the presentence investigation was completed. The sentencing court held a single sentencing hearing, heard from the affected victims, and then issued a sentence based on the circumstances of Strunk committing felonious assault while he was on bond for robbery. Moreover, the trial court ordered the sentences to run consecutive to each other, therefore demonstrating that the court took into consideration the seriousness of the charges and what total, сonsecutive, prison sentence the court felt justified in imposing. Therefore, Strunk‘s delivery to the Ohio State Correction Reception Center was the single triggering event that marked the beginning of the judicial release statute time frame regarding Strunk‘s stated prison term.
{¶ 22} Once more, the statute in place in 2009 states that,
If the stated prison term is five years or more but not more than ten years, the eligible offender may file the motion not earlier than five years after the eligible offender is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, not earlier than five years after the expiration of all mandatory prison terms.
Therefore, Strunk would have to serve his mandatory one-year firearm specification, and then wait an additional five years after the expiration of his mandatory prison term before he
{¶ 23} In Peoples, the court held that the version of
{¶ 24} Notwithstanding the Ohio Supreme Court‘s finding of unconstitutionality, and for some perplexing reason, the General Assembly amended the statute after Peoples was decided to once again include the offending language. The version of
{¶ 25} Once the five-year time frame is removed from
{¶ 26} However, the version of
{¶ 27} Instead, the record is clear that the trial court was under the assumption that it was proper to divide the stated prison term into two separate sentences, one of two years (plus the mandatory one-year firearm specification) and one of three years. The trial court granted judicial release on only the robbery charge, and did not consider whether Strunk was eligible for rеlease on the total sentence that included the three years for felonious assault. Therefore, the trial court must decide whether to grant judicial release based on the fact that Strunk‘s stated prison term is not two separate sentences for purposes of judicial release determination.
{¶ 28} The trial court must also consider the fact that the version of
(a) That a sanction other than a prison term would adequately punish the offender and protect the public from future criminal violations by the eligible offender because the applicable factors indicating a lesser likelihood of recidivism outweigh the applicable factors indicating a greater likelihood of recidivism;
(b) That a sanction other than a prison term would not demean the seriousness of the offense because factors indicating that the eligible offender‘s conduct in committing the offense was less serious than conduct normally constituting the offense outweigh factors indicating that the еligible offender‘s conduct was more serious than conduct normally constituting the offense.
{¶ 29} The record indicates that the trial court made these findings as they related to the robbery charge, but did not make the requisite findings when taking into consideration the felonious assault. It is altogether possible that the trial court may decide upon remand, that it can no longer make these findings based on the facts and сircumstances surrounding
{¶ 30} Upon remand, the trial court shall consider Strunk‘s motion for judicial release as it relates to the entire stated prison term, which is the combination of sentences for robbery and felonious assault. The trial court may nоt grant judicial release on the robbery charge without also granting it on the felonious assault charge, as both sentences comprise the stated prison term referenced in the statute. Having found that the trial court erred by considering the stated prison term as two separate sentences, we sustain the state‘s assignment of error. As such, we reverse the trial court‘s judgment to the extent that we vacаte the order granting judicial release and remand this matter for the trial court to consider Strunk‘s motion for judicial release within the context of this opinion.
{¶ 31} Judgment reversed, and cause is remanded for further consideration.
POWELL, P.J., and HENDRICKSON, J., concur.