State v. Powell ( 2019 )

[Cite as State v. Powell, 2019-Ohio-3005.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 28108
:
v. : Trial Court Case No. 1985-CR-2210
:
DONALD POWELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 26th day of July, 2019.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
JON PAUL RION, Atty. Reg. No. 0067020 and KEVIN DARNELL, Atty. Reg. No.
0095952, 130 West Second Street, Suite 2150, Dayton, Ohio 45402
Attorney for Defendant-Appellee
.............
-2-
HALL, J.
{¶ 1} The State of Ohio appeals from the trial court’s order granting Donald Powell
shock probation under R.C. 2929.201. Powell was not eligible for shock probation, so we
reverse the trial court’s judgment.
I. Shock Probation
{¶ 2} Before the “sweeping changes” that Am.Sub.S.B. No. 2, 146 Ohio Laws, Part
IV, 7136 (“S.B. 2”) made to Ohio’s felony sentencing laws in 1996, R.C. 2947.061(B)
allowed a court to place a defendant convicted of a first-degree, second-degree, or third-
degree aggravated felony on probation after the offender had served six months of his
prison sentence. State v. Tijerina, 3d Dist. Defiance No. 4-02-01, 2002-Ohio-2979, ¶ 8.
“This ‘shock probation’ existed as a form of what we now refer to as early judicial release.”
Id. R.C. 2947.061(B) provided that, “[s]ubject to sections 2951.02 to 2951.09 of the
Revised Code * * *, the trial court, upon the motion of the defendant, may suspend the
further execution of the defendant’s sentence and place the defendant on probation upon
the terms that * * * the court determines * * *.” But the statute allowed a defendant to file
only one motion for shock probation: “A defendant shall not file more than one motion
pursuant to this division for each sentence imposed upon the defendant * * *.” R.C.
2947.061(B).
{¶ 3} R.C. 2951.02, to which R.C. 2947.061(B) is subject, governs probation
generally. R.C. 2951.02(F) makes certain offenders ineligible for probation. Pertinent here
are offenders convicted of rape: “An offender shall not be placed on probation and shall
not otherwise have the offender’s sentence of imprisonment suspended pursuant to
division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following
-3-
applies: * * * (4) The offense involved is a violation of section 2907.02 [rape] or 2907.12
[felonious sexual penetration] of the Revised Code.”
{¶ 4} R.C. 2947.061 was repealed on July 1, 1996, when S.B. 2 went into effect.
But “because the provisions of [S.B. 2] apply only to offenses committed after July 1,
1996, former R.C. 2947.061 is available to those who * * * committed their crimes prior to
this date.” State v. Coffman, 91 Ohio St.3d 125, 126, 742 N.E.2d 644 (2001), citing S.B.
2, Section 5.1
{¶ 5} In 2014, the legislature enacted R.C. 2929.201. This statute appears to give
offenders who committed their offenses before S.B. 2 went into effect (“old offenders”),
the right to apply for shock probation a second time under R.C. 2947.061. The new statute
states:
Notwithstanding the time limitation for filing a motion under former section
2947.061 of the Revised Code, an offender whose offense was committed
before July 1, 1996, and who otherwise satisfies the eligibility criteria for
shock probation under that section as it existed immediately prior to July 1,
1996, may apply to the offender’s sentencing court for shock probation
under that section on or after September 15, 2014. Not more than one
motion may be filed by an offender under this section. Division (C) of former
section 2947.061 of the Revised Code does not apply to a motion filed
1 Section 5 of S.B. 2, as amended, reads: “The provisions of the Revised Code in
existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a
term of imprisonment prior to that date and, notwithstanding division (B) of section 1.58
of the Revised Code, to a person upon whom a court, on or after that date and in
accordance with the law in existence prior to that date, imposes a term of imprisonment
for an offense that was committed prior to that date.”
-4-
under this section. A presentence investigation report is not required for
shock probation to be granted by reason of this section.
{¶ 6} The issue presented in this case is whether an old offender whose prison
sentence includes a term for rape is eligible for shock probation under R.C. 2929.201.
II. Facts and Procedural History
{¶ 7} In 1986, Powell was convicted on one count of kidnapping, five counts of
rape, five counts of gross sexual imposition, and one count of attempted rape. The trial
court imposed an indeterminate prison sentence: 5 to 25 years for kidnapping, 5 to 25
years for each count of rape, 1 year for each count of gross sexual imposition, and 4 to
15 years for attempted rape. The court ordered all the rape sentences to run concurrently
with each other and all gross sexual imposition sentences to run concurrently with each
other. The trial court then ordered Powell to serve the sentences for kidnapping, rape,
gross sexual imposition, and attempted rape consecutively, for an aggregate prison term
of 15 to 65 years. Powell’s convictions were affirmed on appeal, State v. Powell, 2d Dist.
Montgomery No. 9881, 1987 WL 12638 (June 9, 1987), as was his sexual-predator
designation, State v. Powell, 2d Dist. Montgomery No. 18658, 2003-Ohio-1568.
{¶ 8} In June 2018, Powell filed a motion for shock probation under R.C. 2929.201.
The state opposed the motion, arguing in part that his rape conviction made him ineligible
for shock probation. The trial court granted the motion.2 While the court agreed that an
offender serving a prison sentence for rape was not eligible for shock probation, the court
concluded that Powell had completed his prison term for rape and could be released on
2 In its written decision, the trial court referred to the reasoning in its written decisions
granting Powell’s co-defendant, James Eaton, shock probation. It is that reasoning to
which we refer in this opinion.
-5-
probation for the remainder of his sentence. The trial court later issued a supplemental
decision in which it went a step further: the court concluded that the
eligibility requirements for shock probation in former R.C. 2951.02 did not apply to
offenders who, like Powell, remained incarcerated after July 14, 2014, for offenses
committed before July 1, 1996. In other words, the trial court held that Powell was eligible
for shock probation despite having been convicted of rape.
{¶ 9} The state appeals.
II. Analysis
{¶ 10} The sole assignment of error alleges:
The trial court erred by granting Donald Powell shock probation
under R.C. 2929.201 because the statute, by its very terms, provides that
Powell is not eligible for such relief.
{¶ 11} The state argues that, because of his rape conviction, Powell was not
eligible for shock probation. We agree. Being sentenced to prison for rape makes an
offender ineligible for probation under former R.C. 2951.02, which renders the offender
ineligible for shock probation under former R.C. 2947.061 and therefore ineligible under
R.C. 2929.201.
{¶ 12} First, the probation criteria in former R.C. 2951.02 do apply to a R.C.
2929.201 application for shock probation. That is, to be eligible for shock probation under
R.C. 2929.201, an offender must satisfy the eligibility criteria for probation under former
R.C. 2951.02.
{¶ 13} According to the trial court, the “subject to” phrase in former R.C.
2947.061(B) refers to probation statutes that apply only to pre-S.B. 2 sentences. The
-6-
court concluded that the legislature did not intend for courts to apply the provisions in
former R.C. 2951.02(F) after July 14, 2014, pointing out that R.C. 2929.201 does not refer
to former R.C. 2951.02 as a basis for eligibility. An offender did not have to be qualified
for probation at the time of sentencing to apply for shock probation under R.C. 2929.201,
said the court, and requiring otherwise was contrary to the intent of the new statute. In
the court’s view, the intent of the new statute was to give old offenders serving long
indeterminate sentences imposed under pre-S.B. 2 law a way to be released despite the
fact that they may not have qualified for probation at the time of sentencing.
{¶ 14} Contrary to the trial court, we think that the legislative purpose of R.C.
2929.201 was simply to give certain old offenders another opportunity to apply for shock
probation. Old offenders can still apply for shock probation under former R.C. 2947.061,
but they can do so only once. If an offender, like Powell, applied early and was denied,
he had no second chance—ever. R.C. 2929.201 gave such offenders a second chance.
But the offender still had to satisfy the eligibility criteria under the former law. R.C.
2929.201 incorporated former R.C. 2947.061 and all its eligibility criteria, including R.C.
2951.02. The Ohio Supreme Court has held that “R.C. 2947.061’s language that its
operation is ‘[s]ubject to sections 2951.02 to 2951.09 of the Revised Code’ plainly means
that eligibility for probation under R.C. 2951.02 is a prerequisite to eligibility for shock
probation under R.C. 2947.061.” State v. Bistarkey, 75 Ohio St.3d 7, 661 N.E.2d 167(1996), syllabus; see also State v. Simon, 87 Ohio St.3d 531, 534, 721 N.E.2d 1041(2000) (holding that under R.C. 2947.061 “an offender’s eligibility for shock probation is
dependent on the offender’s eligibility for probation”). Furthermore, R.C. 2929.201 itself
assumes that R.C. 2951.02 to 2951.09 apply. R.C. 2929.201 states that “[a] presentence
-7-
investigation [PSI] report is not required for shock probation to be granted by reason of
this section.” Former R.C. 2947.061 says nothing about requiring a PSI report. Rather, it
is former R.C. 2951.03, to which former R.C. 2947.061 is subject, that requires a PSI
report. See State v. Harris, 66 Ohio St.3d 89, 609 N.E.2d 162 (1993), syllabus (“A trial
court is without jurisdiction to rule on a motion for shock probation brought pursuant to
R.C. 2947.061, unless and until a written investigation report has been considered by the
court pursuant to the mandate of former R.C. 2951.03.”). Lastly, we note that the
legislature made it clear that all the provisions of the Revised Code as they existed before
July 1, 1996, apply to an offender sentenced before that date. See S.B. 2, Section 5. For
these reasons, we conclude that to be eligible for shock probation under R.C. 2929.201,
an offender must be eligible for probation under former R.C. 2951.02.
{¶ 15} Under former R.C. 2951.02, an offender serving a sentence for rape was
never eligible for probation. Former R.C. 2951.02(F)(4) prohibited a court from placing an
offender on probation and suspending the offender’s misdemeanor prison sentence under
R.C. 2929.51(D)(2) or (4) if “the offense involved” was rape. This provision indicated that
the legislature wanted to make offenders who committed certain serious crimes—like
rape—serve their entire aggregate prison sentence before being released. This is
supported by the provision’s prohibition on suspending misdemeanor sentences. By
stating that an offender who committed these serious crimes was also ineligible to have
misdemeanor prison sentences suspended, the statute showed that it was concerned
with an offender’s entire aggregate sentence, not just with the term imposed for the
disqualifying crime. An offender whose prison sentence included a term for rape was
never eligible for probation under former R.C. 2951.02.
-8-
{¶ 16} The Third District read these statutes the same way in Tijerina, 3d Dist.
Defiance No. 4-02-01, 2002-Ohio-2979. The offender in that case was convicted of one
count of rape, nine counts of sexual battery, and nine counts of corruption of a minor. He
was sentenced to an indeterminate term of eight to twenty-five years in prison. The
appellate court concluded that “R.C. 2951.02(F)(4) expressly prohibited placing on
probation an offender who violates R.C. 2907.02 (Rape) or R.C. 2907.12 (Felonious
Sexual Penetration).” Id. at ¶ 8. “Therefore, due to the nature of his convictions, [the
offender] is not eligible for ‘shock probation’ under the former R.C. 2947.061.” Id.
{¶ 17} One might argue that Powell’s eligibility should be like that of an offender
who becomes eligible for release under the judicial-release statute after serving the
mandatory part of his sentence and the requisite non-mandatory part. The judicial-release
statute enacted on July 1, 1996, defined “eligible offender” to include a person “sentenced
to a mandatory prison term and another prison term * * * and who has served the
mandatory prison term.” Former R.C. 2929.20(A)(2).3 The argument for Powell’s eligibility
might be convincing if Powell’s concurrent rape sentences were deemed to have been
served first and if one were to conclude that, because he had completed the rape
sentences, he was an eligible offender. But we distinguish offenders who become eligible
for release after serving mandatory time under the judicial-release statute from those who
are sentenced on wholly ineligible offenses. Judicial-release eligibility is statutory. There
is no similar statutory authority from which to conclude that an offender sentenced for
rape becomes an eligible offender after completing the rape sentence.
3 The eligibility time frame “after expiration of all mandatory prison terms” is now codified
in R.C. 2929.20(C).
-9-
III. Conclusion
{¶ 18} Powell’s prison sentence included a term for rape. Whether he had
completed that term was immaterial to his eligibility for shock probation. He was ineligible
for shock probation, and the trial court therefore erred by granting his motion for shock
probation. The state’s sole assignment of error is sustained.
{¶ 19} The trial court’s judgment is reversed, and this matter is remanded for
further proceedings.
.............
WELBAUM, P.J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck
Andrew T. French
Jon Paul Rion
Kevin Darnell
Hon. Richard Skelton