State v. Jenkins ( 2011 )

[Cite as State v. Jenkins, 2011-Ohio-6924.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 10CA3389
:
v. :
: DECISION AND
ANTHONY JENKINS, : JUDGMENT ENTRY
:
Defendant-Appellant. : Filed December 22, 2011
APPEARANCES:
Daphne J. Frost-Krieger, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Matthew A. Wisecup, Scioto County
Assistant Prosecutor, Portsmouth, Ohio, for Appellee.
Kline, J.:
{¶1} Anthony Jenkins (hereinafter “Jenkins”) appeals the judgment of the
Scioto County Court of Common Pleas, which revoked his judicial release and
sentenced him to three years in prison. On appeal, Jenkins contends that R.C.
2929.15(A)(1) and R.C. 2929.20(K) should be read together. Specifically, Jenkins
argues that the combined period of community control under R.C. 2929.15(A)(1) and
R.C. 2929.20(K) should not exceed a total of five years. Based on this argument,
Jenkins claims that he was not legally on community control when his judicial release
was revoked. We disagree. Because R.C. 2929.15(A)(1) and R.C. 2929.20(K) are
independent statutes that serve different purposes, community control imposed under
R.C. 2929.15(A)(1) is separate and distinct from community control imposed under R.C.
Scioto App. No. 10CA3389 2
2929.20(K). Therefore, we find no merit in Jenkins’ statutory argument, and we affirm
the judgment of the trial court.
I.
{¶2} The facts of this case are not in dispute. On July 22, 2003, Jenkins was
convicted of one count of burglary and two counts of theft. For these crimes, Jenkins
was sentenced to five years of community control.
{¶3} On July 10, 2007, the trial court revoked Jenkins’ community control and
sentenced him to three years in prison.
{¶4} On February 19, 2008, the trial court granted Jenkins’ motion for judicial
release. Under R.C. 2929.20(K), the trial court placed Jenkins on five years of
community control.
{¶5} On December 22, 2009, the trial court issued a warrant for Jenkins’ arrest.
The warrant states that “ANTHONY JENKINS has violated the terms and conditions of
community control by: FAILING TO REPORT TO THE PROBATION DEPT THAT HE
HAD BEEN ARRESTED FOR THEFT IN THE STATE OF KENTUCKY.”
{¶6} Finally, on August 24, 2010, the trial court revoked Jenkins’ judicial
release and sentenced him to three years in prison with credit for 278 days.
{¶7} Jenkins appeals and asserts the following assignment of error: I. “The
Court of Common Pleas violated the Appellant’s right to a trial by Jury by sentencing
Appellant to a term of incarceration which exceeded the MAXIMUM mandated by the
Sixth and Fourteenth Amendments, when the trial [court] sentenced the Appellant when
he had already served the entire sentence allowed on community control.” (Emphasis
sic.)
Scioto App. No. 10CA3389 3
II.
{¶8} In his sole assignment of error, Jenkins contends that the trial court erred
when it revoked his judicial release. Although Jenkins makes some constitutional
claims on appeal, he actually bases his argument on statutory interpretation. Based on
his interpretation of R.C. 2929.15(A)(1) and R.C. 2929.20(K), Jenkins claims that he
was not legally on community control when the December 22, 2009 arrest warrant was
issued. Essentially, Jenkins contends that R.C. 2929.15(A)(1) and R.C. 2929.20(K)
“should be read together and not independently of each other.” Brief of Appellant at 7.
More specifically, Jenkins argues that, when combined, the period of community control
under R.C. 2929.15(A)(1) and the period of community control under R.C. 2929.20(K)
should not exceed a total of five years. Jenkins claims that he spent 1,261 days on
community control under R.C. 2929.15(A)(1) and 672 days on community control under
R.C. 2929.20(K). Therefore, as of December 22, 2009, Jenkins claims to have served
“a TOTAL of 1933 days or five years, four months and fifteen days * * * on community
control.” Brief of Appellant at 8 (emphasis sic). Based on this claim, Jenkins argues the
following: (1) his time on community control exceeded the statutory maximum of five
years; (2) therefore, he was not legally on community control at the time of the of the
December 22, 2009 arrest warrant; and (3) because he was not legally on community
control, the trial court erred when it revoked his judicial release and sentenced him to
three years in prison.
{¶9} “A trial court’s decision finding a violation of judicial release will not be
disturbed on appeal absent an abuse of discretion.” State v. Westrick, Putnam App. No.
12-10-12, 2011-Ohio-1169, at ¶22. An “‘abuse of discretion’ connotes more than an
Scioto App. No. 10CA3389 4
error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The present
case, however, requires us to interpret and apply R.C. 2929.15(A)(1) and R.C.
2929.20(K). To the extent that we must interpret and apply these statutes, our review is
de novo. See State v. Sufronko (1995), 105 Ohio App.3d 504, 506 (“When interpreting
statutes and their application, an appellate court conducts a de novo review, without
deference to the trial court’s determination.”).
{¶10} R.C. 2929.15(A)(1) provides, in part, the following: “If in sentencing an
offender for a felony the court is not required to impose a prison term, a mandatory
prison term, or a term of life imprisonment upon the offender, the court may directly
impose a sentence that consists of one or more community control sanctions[.] * * * The
duration of all community control sanctions imposed upon an offender under this
division shall not exceed five years.” (Emphasis added.)
{¶11} Under R.C. 2929.20(K), “If the court grants a motion for judicial release
under this section, the court shall order the release of the eligible offender, shall place
the eligible offender under an appropriate community control sanction, under
appropriate conditions, and under the supervision of the department of probation
serving the court and shall reserve the right to reimpose the sentence that it reduced if
the offender violates the sanction. * * * The period of community control shall be no
longer than five years.” (Emphasis added.)
{¶12} Jenkins contends that the five-year maximum in R.C. 2929.15(A)(1) and
the five-year maximum in R.C. 2929.20(K) should be read together. That is, Jenkins
argues that a defendant who (1) is sentenced to community control, (2) is then
Scioto App. No. 10CA3389 5
incarcerated for a community-control violation, and (3) is later granted judicial release
should serve no more than five total combined years on community control under R.C.
2929.15(A)(1) and R.C. 2929.20(K). We disagree.
{¶13} Here, courts have consistently found that R.C. 2929.15(A)(1) and R.C.
2929.20(K) are independent statutes that serve different purposes. For example, the
Third Appellate District stated that “the rules dealing with a violation of an original
sentence of community control (R.C. 2929.15) should not be confused with the sections
of the Revised Code regarding early judicial release (R.C. 2929.20) even though the
language of R.C. 2929.20([K]) contains the term ‘community control’ in reference to the
status of an offender when granted early judicial release. * * * Under R.C. 2929.15, a
defendant’s original sentence is community control and he will not receive a term of
incarceration unless he violates the terms of his community control[;] whereas, when a
defendant is granted judicial release under R.C. 2929.20, he has already served a
period of incarceration, and the remainder of that prison sentence is suspended pending
either the successful completion of a period of community control or the defendant’s
violation of a community control sanction.” State v. Jones, Mercer App. Nos. 10-07-26
& 10-07-27, 2008-Ohio-2117, at ¶12 (citations omitted). See, also, State v. Franklin,
Stark App. No. 2011-CA-00055, 2011-Ohio-4078, at ¶12.
{¶14} We agree that R.C. 2929.15(A)(1) and R.C. 2929.20(K) are separate
statutes that serve different purposes. Therefore, we find that community control
imposed under R.C. 2929.15(A)(1) is separate and distinct from community control
imposed under R.C. 2929.20(K). Furthermore, “we are forbidden to add a nonexistent
provision to the plain language of [a statute].” State ex rel. Steffen v. Court of Appeals,
Scioto App. No. 10CA3389 6
First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, at ¶26, citing State ex rel.
Lorain v. Stewart, 119 Ohio St.3d 222, 2008-Ohio-4062, at ¶36; State v. Hughes, 86
Ohio St.3d 424, 427, 1999-Ohio-118. And here, other than the use of a common term --
“community control” -- there is no statutory language to suggest that the five-year
maximums under R.C. 2929.15(A)(1) and R.C. 2929.20(K) should be combined.
{¶15} Finally, Jenkins’ argument cannot overcome the plain language of R.C.
2929.15(A)(1) and R.C. 2929.20(K). “The primary goal of statutory construction is to
ascertain and give effect to the legislature’s intent in enacting the statute. * * * The court
must first look to the plain language of the statute itself to determine the legislative
intent. * * * We apply a statute as it is written when its meaning is unambiguous and
definite. * * * An unambiguous statute must be applied in a manner consistent with the
plain meaning of the statutory language.” State v. Lowe, 112 Ohio St.3d 507, 2007-
Ohio-606, at ¶9 (citations omitted).
{¶16} Here, the plain language demonstrates that R.C. 2929.15(A)(1) and R.C.
2929.20(K) should be read separately, not together. R.C. 2929.15(A)(1) provides that
“[t]he duration of all community control sanctions imposed upon an offender under this
division shall not exceed five years.” (Emphasis added.) The language “under this
division” clearly limits R.C. 2929.15(A)(1)’s five-year maximum to community control
imposed under R.C. 2929.15(A)(1). Furthermore, R.C. 2929.20(K) begins with the
following language: “If the court grants a motion for judicial release under this section * *
*.” (Emphasis added.) Therefore, in our view, all references to community control in
R.C. 2929.20(K) relate only to community control imposed under R.C. 2929.20 --
including the five-year maximum term. Finally, R.C. 2929.20(K) provides that a “court,
Scioto App. No. 10CA3389 7
in its discretion, may reduce the period of community control by the amount of time the
eligible offender spent in jail or prison for the offense and in prison.” Significantly,
having served community control under R.C. 2929.15 is not listed as something that
may reduce community-control time under R.C. 2929.20(K). For these reasons,
Jenkins’ argument cannot overcome the plain statutory language.
{¶17} Simply put, Jenkins bases his entire argument on both R.C. 2929.15(A)(1)
and R.C. 2929.20(K) using the term “community control.” But we repeat, “the rules
dealing with a violation of an original sentence of community control (R.C. 2929.15)
should not be confused with the sections of the Revised Code regarding early judicial
release (R.C. 2929.20) even though the language of R.C. 2929.20([K]) contains the
term ‘community control’ in reference to the status of an offender when granted early
judicial release.” Jones at ¶12 (internal quotation omitted). Furthermore, Jenkins has
cited no legal authorities that support his interpretation of R.C. 2929.15(A)(1) and R.C.
2929.20(K).
{¶18} In conclusion, we agree with the trial court’s interpretation of R.C.
2929.15(A)(1) and R.C. 2929.20(K). Therefore, we find (1) that Jenkins’ was legally on
community control on December 22, 2009, and (2) that the trial court did not abuse its
discretion by revoking Jenkins’ judicial release. Accordingly, we overrule Jenkins’
assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 10CA3389 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.