State v. TuckerState v. Tucker
Ronald B. James, 526 Nilles Road, Suite 9, Fairfield, Ohio 45014, for defendant-appellant
HENDRICKSON, J.
{¶1} Defendant-appellant, Frank Thomas Tucker, appeals his sentence in the Butler County Court of Common Pleas entered pursuant to his guilty plea.
{¶2} On January 19, 2011, appellant pleaded guilty to one count of burglary, a third-degree felony in violation of
{¶3} “Transitional Control Prison[:]
{¶4} “Admission into a Transitional Control Prison program is specifically objected to unless affirmative written permission is subsequently given by the sentencing judge.
{¶5} “Intensive Programs Prison[:]
{¶6} “Admission into an Intensive Prison Program is specifically objected to unless affirmative written permission is subsequently given by the sentencing judge.”
{¶7} Appellant timely appeals his sentence, raising one assignment of error for review:
{¶8} “THE TRIAL COURT ERRED BY DISAPPROVING INTENSIVE PROGRAMS PRISON AND/OR TRANSITIONAL CONTROL[.]”
I. Transitional Control
{¶9} Appellant first argues the trial court‘s objection to transitional control in the sentencing entry rendered him “instantly” ineligible for the program and precluded his opportunity for rehabilitation.
{¶10} We previously addressed this issue in State v. Toennisson, Butler App. Nos. CA2010-11-307, CA2010-11-308, CA2010-11-309, 2011-Ohio-5869. In Toennisson, we found that in reserving the right to give written permission for transitional control, the trial court retained the power to reconsider and, if prudent, overturn its initial objection. Id. at ¶33. Thus, contrary to appellant‘s argument, he did not “instantly attain ineligible status” as a result of this language, since the trial court remained free to consider his eligibility at a later date.
{¶11} In Toennisson, we also noted the trial court‘s obligation to promote prisoner rehabilitation was far outweighed by its primary duties to protect the public and punish the offender. Id. at ¶35. See, also,
{¶12} Appellant also appears to suggest the trial court was required to make findings of fact and conclusions of law to support its objection to transitional control and give appellant prior notice of its decision. These arguments are also without merit. First,
{¶13} Accordingly, we reject appellant‘s arguments as they relate to transitional control.
II. Intensive Program Prison
{¶14} Intensive Program Prison “includes institutions that have military-type regimen programs as described in
{¶15} At appellant‘s plea hearing, counsel requested a community control sanction, rather than a prison sentence, to address appellant‘s mental health and substance abuse issues. The trial court acknowledged the request and ordered appellant to be evaluated for a specific community-based treatment program. After an evaluation, appellant was recommended for treatment in an IPP known as “SAMI” (Substance Abuse Mental Illness
{¶16} Despite the recommendation, the sentencing entry objected to IPP “unless affirmative written permission [was] subsequently given by the sentencing judge.”
{¶17} Appellant argues this language eliminated his opportunity for rehabilitation and arbitrarily denied his entry into IPP “without mentioning any findings of fact or conclusions of law in support of the denial on the record and without any prior form of notice to the offender.”
{¶18} As an initial matter, we reject appellant‘s contention that the language eliminated his opportunity for rehabilitation where, as with transitional control, the trial court had a far more pressing duty to uphold the purposes and principles of felony sentencing, including punishing the offender and protecting society. See
{¶19} We also reject appellant‘s contention that he was entitled to prior notice of the court‘s decision to object to IPP in the sentencing entry. There is “no requirement that the court address a defendant during the sentencing hearing in regard to its recommendation of approval or disapproval for either placement in a shock incarceration program or an intensive prison program. Indeed, the court is not even required to make a recommendation at all.” State v. Lowery, Trumbull App. No. 2007-T-0039, 2007-Ohio-6734, ¶10. See, also,
{¶20} Because the trial court chose not to disturb its objection to IPP, we must determine whether it gave sufficient reasons for its decision to comply with the findings requirement of
{¶21} In Jackson, the Fifth District Court of Appeals found the trial court complied with
{¶22} In Lowery, the trial court disapproved of defendant‘s placement into IPP and included its determination in the sentencing entry. To determine whether the trial court gave sufficient reasons for its disapproval, the Eleventh District Court of Appeals looked to the record as a whole, chiefly, the sentencing hearing transcript. The Eleventh District found the sentencing transcript established sufficient reasons for the trial court‘s disapproval, where the court noted appellant‘s “extensive” criminal history and various probation violations. Id. at ¶15-16. See also,
{¶23} We have examined both the plea hearing and the sentencing hearing transcripts and find the trial court was explicit in its decision. During the plea hearing, the trial court explained all options to appellant and the sentence was deferred because appellant requested a presentence investigation (PSI). The trial court ordered the PSI report to include an evaluation for placement in a community-based treatment program. As requested, the PSI recommended that appellant complete the SAMI program for mental health and substance abuse treatment.
{¶24} Additionally, while the court did not specifically mention “IPP” during the sentencing hearing, the transcript contains findings that could constitute its “implied reasons for disapproval[.]” Howard, 2010-Ohio-5283 at ¶39. First, the court considered the principles
{¶25} In sum, we find the record as a whole provides sufficient reasons for the trial court‘s disapproval of IPP to comply with the findings requirement of
{¶26} Appellant‘s single assignment of error is overruled.
{¶27} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur