State v. ToennissonState v. Toennisson
Brian K. Harrison, P.O. Box 80, Monroe, Ohio 45050, for defendant-appellant
O P I N I O N
POWELL, P.J.
{¶1} Defendant-appellant, Jonathan Hayden Toennisson, appeals from three judgments of the Butler County Court of Common Pleas entered pursuant to his guilty pleas. We have consolidated the judgments for review.
{¶2} On Septembеr 14, 2010, appellant pleaded guilty to one count of attempted robbery, a fourth-degree felony in violation of
{¶3} Appellant timely apрeals his sentence, raising two assignments of error for review.
Assignment of Error No. 1:
{¶4} “THE TRIAL COURT ERRED WHEN IT IMPOSED SENTENCES THAT ARE CONTRARY TO LAW.”
{¶5} In his first assignment of error, appellant argues the trial court erroneously assumed prison was mandatory for the failure to comply charge. According to appellant, “[h]ad thе trial court correctly recognized that it had discretion whether or not to impose a prison term * * * then the trial court, upon applying the factors enumerated in
{¶6} When reviewing felony sentences, appellate courts must apply a two-step procedure. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4. “[T]his court must (1) examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary tо law, and, if the first prong is satisfied, (2) review the sentencing court‘s decision for an abuse of discretion.” State v. Wiggins, Warren App. No. CA2009-09-119, 2010-Ohio-5959, ¶7, citing Kalish at ¶4.
{¶9} “Prison for a period of 2 years, which is a mandatory prison term pursuant to Revised Code Section 2929.13(F).” (Emphasis added.)
{¶10}
{¶11}
{¶12} “(F) Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under sections 2929.02 to 2929.06, section 2929.14, section 2929.142, or section 2971.03 of the Revised Code and except as specifically provided in section 2929.20, divisions (C) tо (I) of section 2967.19, or section 2967.191 of the Revised Code or when parole is authorized for the offense under section 2967.13 of the Revised Code shall not reduce the term or terms pursuant to section 2929.20, section 2967.19, section 2967.193, or any other provision of Chapter 2967. or Chapter 5120. of the Revised Code for any of the following offenses:
{¶14} “(7) Any offense that is a third degree felony and either is a violation of section 2903.04 of the Revised Code or an attempt to commit a felony of the second degree that is an offense of violence and involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to a person if the offender previously was convicted of or plеaded guilty to any of the following offenses:
{¶15} “(a) Aggravated murder, murder, involuntary manslaughter, rape, felonious sexual penetration as it existed under section 2907.12 of the Revised Code prior to September 3, 1996, a felony of the first or second degree that resulted in the death of a person or in physical harm to a person, or complicity in or an attempt to commit any of those offenses[.]”
{¶16} Upon review, we find no evidence to support the trial court‘s conclusion that аppellant‘s sentence was mandatory within the meaning of
{¶17} From the record before us, it appears the trial court mistakenly determined appellant‘s sentence was mandatory, which effectively precluded consideration of relevant statutory factors, such as available community control sanctions under
{¶19} Appellant next argues the sentence for the failure to comply charge is contrary to law because the trial court did not specifically indicate it considered the factors under
{¶20} Appellant‘s first assignment of error is sustained to the extent indicated.
Assignment of Error No. 2:
{¶21} “THE TRIAL COURT ERRED BY INCLUDING IN THE SENTENCING ENTRIES PROVISIONS THAT APPELLANT IS NOT TO BE CONSIDERED FOR OR RELEASED ON TRANSITIONAL CONTROL.”
{¶22} In his second assignment of error, appellant argues the judgment entries of conviction contained language that categorically prohibited his admission into a transitional control program.
{¶23} The judgment entries addressed transitional control as follows:
{¶24} “Transitional Control Prison[:]
{¶25} “Admission into a Transitional Control Prison program is specifically objected to unless affirmative written permission is subsequently given by the sentencing judge.”
{¶26} Appellant argues this language ran contrary to the purposes of
{¶27}
{¶28} “(2) At least three weeks prior to transferring to transitional control under this section a prisoner who is serving a term of imprisonment or рrison term for an offense committed on or after July 1, 1996, the adult parole authority shall give notice of the pendency of the transfer to transitional control to the court of common pleas of the county in which the indictment against thе prisoner was found and of the fact that the court may disapprove the transfer of the prisoner to transitional control and shall include a report prepared by the head of the state correctional institution in which the prisоner is confined. The head of the state correctional institution in which the prisoner is confined, upon the request of the adult parole authority, shall provide to the authority for inclusion in the notice sent to the court under this division a report on the prisoner‘s conduct in the institution and in any institution from which the prisoner may have been transferred. The report shall cover the prisoner‘s participation in school, vocational training, work, treatment, and other rehabilitative activities and any disciplinary action taken against the prisoner. If the court disapproves of the transfer of the prisoner to transitional control, the court shall notify the authority of the disapproval within thirty days after receipt of thе notice. If the court timely disapproves the transfer of the prisoner to transitional control, the authority shall not proceed with the transfer. If the court does not timely disapprove the transfer of the prisoner to transitional cоntrol, the authority may transfer the prisoner to transitional control.”
{¶29} As previously mentioned, the judgment entries specifically objected to transitional control, unless “affirmative written permission [was] subsequently given by the sentencing judge.”
{¶30} Appellant argues this language preemptively prohibited his admission into
{¶31} In support of his argument, appellant cites State v. Spears, Licking App. No. 10-CA-95, 2011-Ohio-1538. In Spears, the Fifth District Court of Appeals held that judgment entries denying the possibility of transitional control prior to notice from the adult parole authority were premature and contrary to the purpose of
{¶32} The judgment entries in this case are readily distinguishable from those in Spears and its progeny. The key distinguishing factor is the phrase: ”unless affirmative written permission is subsequently given by the sentencing judge.” (Emphasis added.) Through this language, the trial court retained the рower to reconsider and, if prudent, overturn its initial objection to transitional control. As a result, the trial court could still review appellant‘s conduct upon receiving notice and a report from the adult parole authority.
{¶33} However, even without this language, we fail to see how
{¶34} Moreover, even when confronted with a prisoner‘s good behavior, the trial court cannot abandon its most important obligation to protect the public and punish the offender.
{¶35} Under these circumstances, we reject appellant‘s argument that the parole authority was somehow precluded from determining appellant‘s eligibility for transitional control, оr that the trial court relinquished its power to subsequently approve the transfer. Moreover, we reiterate our firm position that
{¶36} Appellant‘s second assignment of error is overruled.
{¶37} Judgment affirmed in part, reversed in part, and remanded for resentencing.
RINGLAND and HUTZEL, JJ., concur.