State v. Boyd , 95 Ohio App. 3d 679 ( 1994 )

I dissent from the majority opinion as it is my opinion that judgments passed on by this court should not be guided by sentimental or emotional feelings on the subject of the appeal. This court should pass its judgment even when doing so would be unpopular and painful.

Appellant argues that the trial court erred by failing to advise him of his right to request conditional probation and by failing to grant a hearing on his motion for conditional probation.

Any reason in the record to believe that an offender is, or is in danger of becoming, drug dependent compels the trial court to advise the offender of his right to request conditional probation. State v. Riley (1993), 87 Ohio App.3d 420, 425,622 N.E.2d 421, 424. In the instant case the record shows that the trial court was aware of appellant's drug addiction before it passed the sentence and failed to inform him of his right to request conditional probation. The trial court in recognition of appellant's drug problem made the following remarks:

"Good luck to you, Mr. Boyd. I hope you do take care of your problem while you are in, as to whatever programs that you can."

The record shows that appellant is a one-time offender who committed a probationable offense, which makes him eligible for conditional probation. The state's understanding of Crim.R. 32(B) is mistaken. There is no legal authority in support of the state's and the majority's argument that a person is not convicted until sentenced for the purposes of informing the accused of his right to a conditional probation. Conviction always comes before sentencing, and many processes are undergone before sentencing, the processes of which may affect sentencing but never the conviction. One of the processes that the law recognizes should be undertaken before sentencing if applicable is a determination whether an offender is eligible for conditional probation.

Unlike the majority's analysis to the contrary, I remain firmly convinced that conviction is separate and distinct from sentencing, as both serve different functions. It is understandable that for purposes of appellate review, a sentence of the accused is required in the record. Sentence is the punishment ordered by a court to be inflicted upon a person convicted of a crime, usually a noncustodial sentence, such as probation and/or a fine, or a custodial sentence, such as a term of years of imprisonment or a number of months in a county jail. Such an order usually identifies the authority which must carry out the sentence and authorizes and directs the authority to execute the order. See Carter v. Commonwealth (1957), 199 Va. 466, 469,100 S.E.2d 681, 683. It is such an order that completes the case for appellate review purposes. Thus, since a sentence is a formal order of the court declaring the legal consequence of a determination of guilt (the conviction) in a criminal case, unlike the inference drawn from the majority's analysis, the lack of sentence does not affect the validity of the conviction. Sentence does not control the conviction, and unlike conviction can be supplied nunc pro tunc. See Powell v. Commonwealth (1944), 182 Va. 327, 28 S.E.2d 687.

Therefore, when conviction, which is the verdict of the trier of fact, is completed, the court is required to inform the accused of his right to a conditional probation before sentencing if the reason for such advice exists. Where the court has reason to believe that the accused is or may become drug dependent, it has a mandatory duty to advise him of his right to request conditional probation. State v. Pruitt (1984), 18 Ohio App.3d 50, 18 OBR 163, 480 N.E.2d 499. Failure to so advise is prejudicial and a reversible error.

The state without the benefit of the legislature added its own exception to R.C. 2951.04 by arguing that "after sentencing, when the appellant is convicted, the appellant can no longer request conditional probation in a timely fashion." This argument conveniently ignores the statute, which states in part, "and when the offender has been convicted the court shall advisethe offender that he has a right to request conditionalprobation * * *." (Emphasis added.) R.C. 2951.04(A). The argument also fails to recognize that one can hardly be untimely when he is not informed as required of the statutory provision to exercise his right.

Since the trial court did not advise appellant of his right to request conditional probation after conviction, appellant's filing of his request less than a month after sentencing is timely. The trial court's failure to grant a hearing on appellant's request for conditional probation is a reversible error. State v. Lumpkin (1982), 3 Ohio App.3d 341, 3 OBR 397,445 N.E.2d 711.

The majority states:

"A literal reading of the statute would both suggest and demand that the court inform the defendant of his right to request probation after he is sentenced. The statute at issue uses the term `convicted' twice where, in the first instance,it would appear that a better-suited phrase would have been, `[i]f the court has reason to believe that an offender * * * [who has been found guilty of, or pleaded guilty to] * * * a felony or misdemeanor is a drug dependent person * * * the court may * * * advise the offender [of his right to request conditional probation].'" (Emphasis added.)

The majority's reluctance to follow the events that occurred below as they relate to the application of the law to the facts is evident in its continuous attempt to modify the law to suit what it believes is a legislative blunder. The majority, after acknowledging the wording of the statute as not being defective, decided that it is better suited to assume the duties of the legislature, since the legislature no longer knew what it wanted to say. It is my belief that this court is not in the business of telling the legislature what it should have said or what it should say no matter how enticing to tell it what it forgot to say might be.

As if correcting the legislature were not sufficient the majority holds that granting of conditional probation is discretionary. R.C. 2951.04(B) provides in pertinent part as follows:

"Within a reasonable time after receipt of the request for conditional probation, the court shall hold a hearing to determine if the offender is eligible for conditional probation.The offender is eligible for conditional probation if the courtfinds that:

"(1) The offender is drug dependent or is in danger of becoming drug dependent, and he may benefit from rehabilitation or treatment[.]" (Emphasis added.)

My reading of the statute compels me to conclude that there is no discretion conferred upon the court to either grant or deny probation if the accused is eligible. Also the majority's citation to and approval of State v. Wheeler (1976), 49 Ohio Misc. 41, 3 O.O.3d 346, 361 N.E.2d 564, holding that "R.C.2951.04, providing conditional probation for purposes of treatment and rehabilitation of drug dependency, cannot be utilized to suspend execution of sentence after an offender has been delivered into custody of the institution in which he is to serve his sentence," is inconsistent with the statutory provision, which provides that:

"(C) If the court finds that an offender is eligible forconditional probation, the court may suspend execution of thesentence imposed after completion of any period of actualincarceration required by Chapter 2925. of the Revised Code, and place the offender on probation subject to this chapter and under the control and supervision of the county probation department or the adult parole authority.

"Probation under this section shall be conditioned upon the offender's voluntary entrance into an appropriate drug treatment facility or program, his faithful submission to the rehabilitation or treatment prescribed for his drug dependence or danger of drug dependence, and other conditions as the court orders.

"The court shall not suspend execution of a sentence and place the offender on conditional probation, until the court affirmatively finds that the offender is not, or there is no substantial risk of his becoming, a dangerous offender as defined in section 2929.01 of the Revised Code, and such finding is entered into the record." (Emphasis added.)

The majority's approval of Wheeler notwithstanding the provision in the statute confirms the majority's position that the legislature did not know what it was doing when it enacted R.C. Chapter 2951, a position with which I vehemently disagree.

The majority further claims that appellant did not comply with the requirements of the statute by demonstrating that he had been accepted in an appropriate drug treatment facility. This reason like others is just a deliberate attempt to manufacture artificial legal barriers to deny a statutory right. First, the main issue before us is the trial court's failure to follow the mandates of the law by informing appellant of his right to request a conditional probation. Appellant is not required to be admitted to any facility before he is informed of his right. The issue of admission to a facility comes to play when determining eligibility. See R.C. 2951.04(B)(2). Appellant's counsel also gave the court sufficient reason to grant a hearing and the conditional probation during this colloquy between counsel and the court at a presentencing hearing which the majority interpreted as a hearing on the conditional probation:

"THE COURT: Mr. Lazzaro, have you had an opportunity toreview the presentence investigation report?

"MR. LAZZARO: I have, Judge.

"THE COURT: Is there a statement you would like to make on behalf of the Defendant?

"MR. LAZZARO: Yes, there is, your Honor. As evidenced by that presentence report, your Honor, I think it becomes evident that Leon Boyd, at age 39, has had no prior criminal history.

"This is a very unusual case, Judge. Here is a man with a college degree, a graduate of Cleveland State, a good job with British Petroleum of America for 15 years as an analyst, laid off in October of 1991, your Honor.

"Unfortunately, for a man of that background, with no history of criminal offenses and with a very fine job, the layoff, as might be obvious, caused him some problems. He developed a cocaine addiction and that is what this case is about, your Honor.

"* * *

"I can also tell the Court that I spoke personally with thehead of the TASC Force which is the treatment alternative tostreet crime. It is located downstairs. The head of thatorganization, William Seifert-Kessell, tells me Leon is a perfect candidate for their department's help. I would have hadhim in there sooner, Judge, but most of these treatment programslike leverage. By that I mean if the Court sees fit to give himprobation with stringent conditions of probation, that is the kind of leverage they feel they need in order to successfully treat him.

"So, my request would be that you give this 39 year old first offender a chance, Judge, and refer him to this TASC Force that the Court Commissioners have created." (Emphasis added.)

The majority also reasoned that the error is harmless because appellant "was aware of his right to request conditional probation." This shifting of a mandatory legal duty is a further attempt by the majority to show its disapproval of the manner in which the legislature enacted R.C. 2951.04. If the legislature intended the accused's awareness of his right to be an exception, I am sure it would have said so. Almost every citizen in this country is aware of the Miranda right, so following the majority's reasoning an accused who is not warned of his Miranda right loses it to the harmless error legalese because he knows or should have known of his right. Such a requirement is an unjustifiable shift of a legal responsibility which creates a dangerous precedent. It is my opinion that the duty of the court to inform appellant of his right to request a conditional probation and to grant one if appellant qualifies pursuant to R.C. 2951.04 is couched in mandatory terms and should not be affected by the accused's failure to personally make the request even when he knows of the existence of such right.

It is a settled law that an error is not harmless if it affects any substantial right of a defendant. State ex rel.Avellone v. Lake Cty. Bd. of Commrs. (1989), 45 Ohio St.3d 58,543 N.E.2d 478; Lewis v. Rosselle (1990), 63 Ohio App.3d 254,578 N.E.2d 546. An error which has constitutional implications necessarily involves substantial rights and cannot be casually treated as a harmless error. See State v. Muscatello (1977),57 Ohio App.2d 231, 11 O.O.3d 320, 387 N.E.2d 627.

I believe strongly in the United States Supreme Court's pronouncement that due process safeguards against the taking away of life, liberty or property on the basis of an erroneous or distorted conception of the law, no matter how convincing and eloquent, see Mathews v. Eldridge (1976), 424 U.S. 319,96 S.Ct. 893, 47 L.Ed.2d 18, and as much as I detest appellant's evil conduct, the real danger lies not with whether a criminal deserves punishment but with the desire of any court to sugarcoat the law to achieve a desired result.

As much as I agree with the trial court's concern that appellant should be punished for his crime, the law, however, remains that an offender who qualifies under the statute for conditional probation should be informed and when all elements are satisfied be granted probation even when such decision does not agree with the court's personal convictions.

Accordingly, I dissent.