State v. TerryState v. Terry
Rendered on December 22, 2011
Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellant.
W. Joseph Edwards, for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Plaintiff-appellant, State of Ohio, appeals from a judgment and sentence entered by the Franklin County Court of Common Pleas following defendant-appellee, Leon Terry‘s, violation of the terms of his judicial release. For the following reasons, we reverse the trial court‘s judgment and remand the matter for resentencing.
Facts and Procedural History
{¶2} On July 21, 2008, Terry pled guilty to burglary in violation of
{¶3} On May 4, 2009, the trial court granted Terry‘s motion for judicial release pursuant to
{¶4} Subsequently, Terry violated the terms of his judicial release. Pursuant to a request for revocation of community control, the trial court held a hearing on January 24, 2011 to address the violations. Terry stipulated to probable cause and to the community control violations. The trial court revoked community control and imposed a prison sentence of 18 months on Count 1 of the indictment and 3 years on Count 2 of the indictment to be served concurrently with each other. Thereafter, the State filed a notice of appeal.
{¶5} On March 10, 2011, the trial judge wrote a letter to the file stating the following:
Please be advised that a sentencing hearing on State of Ohio vs. Leon Terry, Common Pleas Court No. 07CR-855 was scheduled for March 9, 2011. Upon commencement of said hearing, the prosecutor announced that a notice of appeal
had been filed in the case thereby removing jurisdiction [from] me to continue with the sentencing. On the record, I informed the State that my intention was to correct the erroneous sentence that was given at the revocation/resentencing hearing on January 24, 2011 in which the court imposed eighteen (18) months incarceration as to count one to be served concurrently with three (3) years incarceration as to count two. The court intended to sentence defendant to its original sentence of eleven (11) months as to count one; three (3) years as to count two to be served concurrently with each other. Further, the defendant had seven hundred eighty two (782) days of jail time credit as of January 24, 2011. Since the matter is under appeal, I can no longer make these changes for the record until the Court of Appeals rules. If you should have any questions, please feel free to contact me at 614-525-3664.
{¶6} Although the trial court stated in the letter that it intended to impose the original sentence, the sentence it identified was not the original sentence. Regardless, the trial court took no action because of the pending appeal.
{¶7} The State assigns the following error of our review:
THE TRIAL COURT ACTED CONTRARY TO LAW IN REDUCING DEFENDANT‘S SENTENCE AFTER REVOKING JUDICIAL RELEASE.
Analysis - Judicial Release
{¶8} A trial court has no jurisdiction to amend or modify a valid sentence of imprisonment, other than through judicial release. State v. Longmire, 11th Dist. No. 2001-P-0014, 2002-Ohio-7153, ¶14; Katz & Gianinelli, Criminal Law (2009) Vol. 3, Section 120:7.2
If the court grants a motion for judicial release under this section, the court shall order the release of the eligible offender, shall place the eligible offender under an appropriate community control sanction, under appropriate conditions, and under the supervision of the department of probation serving the court and shall reserve the right to reimpose the sentence that it reduced if the offender violates the sanction. If the court reimposes the reduced sentence, it may do so either concurrently with, or consecutive to, any new sentence imposed upon the eligible offender as a result of the violation that is a new offense. * * *
{¶9} When a trial court grants a motion for judicial release pursuant to
{¶10} Coincident with granting judicial release, a trial court shall reserve on the record the right to reimpose the original sentence on an offender if the offender violates the community control sanction. Darthard at ¶11. If the court chooses to reinstate the original sentence, pursuant to this reserved right, “[b]y the clear language of
{¶11} In its sole assignment of error, the State contends that the trial court erred when, following the revocation of judicial release, it imposed a sentence less than Terry‘s original sentence. We agree.
{¶12} The clear and unambiguous meaning of the phrase “shall reserve the right to reimpose the sentence that it reduced” is that the court can reimpose the original sentence that it suspended when it granted judicial release in the event the offender violates the community control sanction. The statute does not authorize the trial court to increase or reduce the original sentence. “A court has no power to substitute a different sentence for that provided for by statute or one that is either greater or lesser than that
{¶13} The trial court may only “reimpose” the original sentence if it chooses to revoke community control. Appellate courts have almost uniformly found error when a trial court, after revoking judicial release, imposed a sentence greater or lesser than the original sentence. Darthard at ¶13 (error in increasing original sentence─“the trial court‘s option * * * is limited to the reinstatement, with credit for time served, of the sentences that it suspended upon the granting of judicial release“); State v. Hardy, 8th Dist. No. 83572, 2004-Ohio-2696, ¶6 (error in increasing original sentence─“[t]he plain, unambiguous language set forth in
{¶14} Here, Terry‘s original sentence was 11 months imprisonment for the burglary conviction (Count 1) and 4 years imprisonment for the felonious conviction (Count 2) to be served consecutively. When the trial court granted Terry judicial release, it specifically informed Terry that if he violated the terms of his judicial release, the trial court would reimpose a prison term of 4 years and 11 months. Although the record seems to indicate that the trial court intended to reimpose the original sentence, it failed to do so. Therefore, the trial court erred.
{¶15} Terry relies upon State v. Ford, 3d Dist. No. 14-05-30, 2006-Ohio-610, in arguing that a trial court may impose a lesser period of incarceration than the period set forth in the original sentence when a defendant has violated a term of judicial release. We find Ford distinguishable on its facts and unpersuasive in its legal analysis.
{¶16} In Ford, the defendant was granted judicial release and placed under community control. His original sentence was 3 years incarceration. At the time of his release, the trial court notified the defendant that if he violated the terms of his community control, he could be returned to prison to serve a sentence up to 2 years and 11 months. When the defendant violated the terms of community control, the trial court ordered that he be returned to prison for 3 years, less time served.
{¶17} In reversing the trial court‘s order, the majority opinion in Ford looked to the community control statute,
{¶18} In the case at bar, the trial court informed Terry at the time it granted judicial release that it would impose a sentence of 4 years and 11 months incarceration (his original sentence) if Terry violated the terms of release. After Terry violated those terms, it appears that the trial court intended to reimpose the original sentence. However, it failed to do so.
{¶19} Because the trial court erred when it imposed a period of incarceration less than that set forth in Terry‘s original sentence, we sustain appellant‘s sole assignment of error. Therefore, we reverse the judgment of the Franklin County Court of Common Pleas and remand the matter for resentencing.
Judgment reversed; cause remanded for resentencing.
FRENCH and DORRIAN, JJ., concur.