State v. Barron , 2012 Ohio 5787 ( 2012 )

[Cite as State v. Barron, 2012-Ohio-5787.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NOS. 25059 and 25074
v. : T.C. NO. 11CR4097/1
08CR3222
EDROYCE BARRON :
(Criminal appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 7th day of December , 2012.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTONY A. ABBOUD, Atty. Reg. No. 0078151, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Edroyce Barron appeals from two judgments of the Montgomery
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County Court of Common Pleas, which (1) sentenced him for committing robbery and
tampering with evidence and (2) imposed a sentence for violating his post-release control by
committing those felonies. We have consolidated these cases for purposes of appeal.
I.
{¶ 2} In November 2008, Barron pled guilty to burglary, a second degree felony,
in Montgomery C.P. No. 2008 CR 3222/2. The court sentenced him to five years of
community control and informed him that he faced two years in prison if he violated his
community control sanctions. Barron’s community control was revoked in January 2010,
and he was sentenced to two years in prison, to be served concurrently with a nine-month
sentence imposed on the same day in another case. At his revocation and sentencing
hearing, Barron was told that he would be subject to a mandatory three years of post-release
control upon his release from prison; this requirement was reflected in the court’s judgment
entry. Barron did not appeal from the revocation of his community control.
{¶ 3} Barron was released from prison on July 26, 2011, and he was placed on
post-release control.
{¶ 4} In February 2012, Barron pled guilty in Montgomery C.P. No. 2011 CR
4097/1 to robbery (physical harm), a second degree felony, and tampering with evidence, a
third degree felony. The trial court sentenced him to six years for the robbery and 36
months for tampering with evidence, to be served concurrently with each other. The trial
court told Barron that, since he would be serving a prison term for a first- or second-degree
felony, he was “not eligible for shock incarceration or intensive prison program.” During
the same hearing, the trial court sentenced Barron for violating the conditions of his
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post-release control in Montgomery C.P. No. 2008 CR 3222/2 by committing these two
felonies. The trial court imposed a term of 30 months in prison for the violation, to be
served consecutively to the six-year sentence for robbery and tampering with evidence.
{¶ 5} Barron appeals from his sentence for the robbery and tampering with
evidence charges, as well as his sentence for the violation of his post-release control. He
raises two assignments of error.
II.
{¶ 6} Barron’s first assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO MAKE A FINDING
SETTING FORTH ITS REASONS FOR DISAPPROVING SHOCK
INCARCERATION AND INTENSIVE PRISON PROGRAM.
{¶ 7} In his first assignment of error, Barron claims that the trial court erred in
failing to set forth its reasons for disapproving placement in a program of shock
incarceration and an intensive prison program.
{¶ 8} Barron relies on our recent opinion in State v. Allender, 2d Dist.
Montgomery No. 24864, 2012-Ohio-2963, in which we found that the trial court erred when
it failed to articulate its reasons for its disapproval. We held that R.C. 2929.19(D) “requires
that the trial court provide its reasons for disapproving shock incarceration or the intensive
program prison [sic], not merely that the record supports reasons for disapproval that the
trial court might have had, but did not express.” Allender at ¶ 26. It was significant that
the defendant in Allender was eligible for shock incarceration or the intensive prison
program, yet the trial court failed to articulate its reasons for disapproving those programs;
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he pled guilty to several third degree felonies.
{¶ 9} Not all offenders are eligible for shock incarceration or an intensive prison
program. R.C. 5120.032(B)(2), which sets forth the eligibility criteria for an intensive
prison program, excludes individuals who are serving a prison term for “aggravated murder,
murder, or a felony of the first- or second-degree * * *.” Id. R.C. 5120.031, the shock
incarceration statute, defines an “eligible offender” as a person who has pled guilty to or
been convicted of a felony, except those individuals who are ineligible to participate in an
intensive prison program.
{¶ 10} Barron was sentenced for robbery, a second degree felony, which rendered
him ineligible for both shock incarceration and an intensive prison program. The trial court
expressly told him at sentencing that he was ineligible for shock incarceration or an intensive
prison program because he was “serving a prison term for a first- or second-degree felony.”
The judgment entry accurately reflects his lack of eligibility. We find no fault with the trial
court’s statements regarding Barron’s ineligibility for shock incarceration and intensive
prison programs.
{¶ 11} The first assignment of error is overruled.
III.
{¶ 12} Barron’s second assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO MAKE A FINDING
SETTING FORTH ITS REASONS FOR SENTENCING THE
DEFENDANT-APPELLANT TO A THIRTY-MONTH CONSECUTIVE
SENTENCE.
[Cite as State v. Barron, 2012-Ohio-5787.]
{¶ 13} In his second assignment of error, Barron claims that the trial court
committed reversible error by failing to set forth its reasons for making his 30-month
sentence for violating his post-release control consecutive to the sentence imposed for
robbery and tampering with evidence.
{¶ 14} R.C. 2929.141 addresses the commission of an offense by a person under
post-release control. It provides:
(A) Upon the conviction of or plea of guilty to a felony by a person on
post-release control at the time of the commission of the felony, the court
may terminate the term of post-release control, and the court may do either of
the following regardless of whether the sentencing court or another court of
this state imposed the original prison term for which the person is on
post-release control:
(1) In addition to any prison term for the new felony, impose a prison
term for the post-release control violation. The maximum prison term for
the violation shall be the greater of twelve months or the period of
post-release control for the earlier felony minus any time the person has spent
under post-release control for the earlier felony. In all cases, any prison term
imposed for the violation shall be reduced by any prison term that is
administratively imposed by the parole board as a post-release control
sanction. A prison term imposed for the violation shall be served
consecutively to any prison term imposed for the new felony. The imposition
of a prison term for the post-release control violation shall terminate the
period of post-release control for the earlier felony.
[Cite as State v. Barron, 2012-Ohio-5787.]
(2) Impose a sanction under sections 2929.15 to 2929.18 of the
Revised Code for the violation that shall be served concurrently or
consecutively, as specified by the court, with any community control
sanctions for the new felony.
(Emphasis added.) R.C. 2929.141(A).
{¶ 15} Barron asserts that, “if the trial court is going to use its discretionary powers
to impose a maximum consecutive sentence, then it shall have to make a finding setting
forth reasons why the imposition of an additional sentence is necessary.” He emphasizes
that the trial court was not required to terminate post-release control and impose a prison
sentence.
{¶ 16} In Barron’s case, the trial court elected to terminate Barron’s post-release
control and sentence him to 30 months in prison, i.e., the amount of time remaining on his
post-release control. It told Barron that “by statute that [sentence] has to run consecutive to
Count 1 [robbery] and Count 2 [tampering with evidence] of the Court’s sentence.” Under
R.C. 2929.141(A)(1), the trial court was authorized to terminate Barron’s post-release
control and impose a sentence representing the time remaining on his term of post-release
control. Moreover, the court was correct that R.C. 2929.141(A)(1) specifically required the
prison term imposed for the post-release control violation to be served consecutively to the
prison term imposed for the new felonies, namely robbery and tampering with evidence.
The statute does not require the trial court to make any findings before terminating
post-release control and imposing a specific prison sentence for the violation.
{¶ 17} Barron’s second assignment of error is overruled.
IV.
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{¶ 18} The trial court’s judgment will be affirmed.
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FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Michele D. Phipps
Antony A. Abboud
Hon. Dennis J. Adkins