State v. Vlad , 153 Ohio App. 3d 74 ( 2003 )

{¶ 20} I must respectfully dissent from the majority because the issue appealed by Vlad, whether the maximum sentence was properly imposed, is not ripe for this court's review. Accordingly, I would dismiss this appeal.

{¶ 21} The State argues Vlad was only sentenced to five years community control sanctions, not to a prison term of twelve months as Vlad suggests. Thus, the State contends this appeal is not ripe for our review. I find the State's position to be consistent with the well-established principle that a claim is not ripe for appellate review unless the trial court has arrived at a definitive position on the issue. Bentleyville v. Pisani (1995), 100 Ohio App.3d 515, 518-519. The duty of a reviewing court is to decide actual controversies and render judgments that are capable of enforcement. Knutty v. Wallace (1995),100 Ohio App.3d 555, 558-559. This court is not required to address issues that are not ripe for review or those that would be purely academic in nature. Bentleyville; James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791. To address an issue prematurely would have the effect of rendering an advisory opinion on potential issues.State v. Bistricky (1990), 66 Ohio App.3d 395, 397.

{¶ 22} I conclude ruling on the trial court's decision to impose a maximum would be premature at this time because the sentence has not yet been imposed. More precisely, if Vlad were to violate his community control sanctions, R.C. 2925.15 would require a second sentencing hearing. See State v. Marvin (1999), 134 Ohio App.3d 63, 67-69; State v.Brown (2000), 136 Ohio App.3d 816, 821. Accordingly, Vlad should appeal that sentencing order if, and when, he is actually sentenced to a term of incarceration for violation of community control sanctions.

{¶ 23} Other courts have addressed this issue and reached the same conclusion. For example, in State v. Gardner (Dec. 1, 1999), 3d Dist. No. 14-99-24, the Third District held the issue regarding unlawful "suspended sentences" becomes ripe when the community control sanction had been violated and the sentence is actually imposed. Despite the fact that the original judgment entry of sentencing stated defendant was to serve a "suspended" 18 month prison term, the court explained "there is no provision in the sentencing statute which permits a court to suspend a prison term or make community control a condition of a suspended prison term." Id. citing State v. Riley (Nov. 12, 1998), 3d Dist. No. 14-98-38, at 3. Thus, merely because the trial court made reference to an 18 month prison term in its original entry, the Gardner court concluded the sentence was not valid under Ohio law at that time. Instead of vacating the sentence, the court explained, "we must view the 18 month sentence referred to by the trial court in its May 22, 1998 entry to have been a reservation of the more severe sanction that the court could impose for a violation of the community control sanctions pursuant to R.C. 2929.15(B)." Id. at 2.

{¶ 24} This same rationale was adopted by other courts in State v.Ogle (Mar. 1, 2002), 6th Dist. No. WD-01-040; State v. Greer (Dec. 1, 1999), 3d Dist. No. 14-99-26; State v. McPherson (Apr. 18, 2001), 4th Dist. No. 00CA29; State v. Curtis (Feb. 9, 2001), 1st Dist. No. C-000383; and, the Eighth District in State v. Lamis, (2000)139 Ohio App.3d 617, 744 N.E.2d 1260. Although these cases demonstrate a general trend in the law, this court has previously and erroneously held otherwise.

{¶ 25} This court recently held in State v. Baker, 7th Dist. No. 02 AP 0771, 2002-Ohio-7295, that it was a sentencing error to even designate the sentence as being "suspended." Thus, that error had to be appealed at the time it was made. I disagree.

{¶ 26} I am persuaded by the reasoning of the districts inGardner and the other cases cited above at ¶ 5 6, and would find it a better practice for a defendant to appeal the sentence when the issue became ripe.

{¶ 27} The majority contends we must follow our decisions in Statev. Pitts (Mar. 14, 2001), 7th Dist. No. 99 BA 67, and Baker, which relied on Pitts. In Pitts, the trial court sentenced the defendant to five years of community control sanctions, including four months of incarceration in the Belmont County Jail and six months at the Eastern Ohio Corrections Center. The sentencing entry stated that the penalty for violating the community control sanctions was twenty-four months of imprisonment, consisting of two consecutive twelve-month sentences for the two crimes. After the defendant violated four conditions of his community control order, the trial court revoked his community control sanctions and reimposed the two consecutive twelve month terms of imprisonment in the original sentencing order. The defendant then appealed that decision.

{¶ 28} This court, however, determined the defendant waived any challenge to the sentence because he did not file a direct appeal of the judgment which originally imposed a suspended twenty-four month prison term. "In essence, Appellant now attempts to belatedly appeal that decision by filing the instant appeal. Although it is questionable whether the trial court, in its March 8, 1999, entry, had the authority to impose and then suspend a felony prison sentence, Appellant should have raised this issue by means of a direct appeal of the original sentencing order. See R.C. § 2929.51." Id. at 2.

{¶ 29} This court further reasoned, "``Unless the judgment is challenged, however, its validity does not become an issue. Thus, when a party has a possibly meritorious assignment of error, but does not appeal the lower court's decision in the case so that a determination of the assigned error can be made, that judgment remains valid * * *.' Eisenbergv. Peyton (1978), 56 Ohio App.2d 144, 151. Appellant failed to question the propriety of the original twenty-four month sentence in a direct appeal. Thus, he should not now be permitted to challenge that sentence in a subsequent community control revocation proceeding." Id. at 2.

{¶ 30} However, the rationale in Pitts, for several reasons, is erroneous. First, the judgment entry that originally imposed the "suspended" twenty-four month prison term did not in fact impose a prison term. Rather, the entry gave notice to the defendant what the potential sentence would be if he were to violate the community control sanctions making the sentence conditioned upon whether or not the defendant actually violated the sanctions. Thus, it would be impossible to anticipate at the time of the original sentencing what the trial court might possibly decide in the future if, and when, the defendant actually violates the sanctions.

{¶ 31} Second, this court's prior decision also fails to recognize that a trial court in its original sentence need only inform the defendant of the maximum sentence he could possibly receive if he were to violate the community control sanctions. R.C. 2929.15(A). This does not bind the trial court to impose that maximum sentence in the future. SeeCurtis. It merely creates a ceiling. After a defendant violates the sanctions, the trial court is then required to impose a sentence withinthe boundaries set by the notice required at the original sentencing hearing. R.C. 2929.15. Because a claim is not ripe for appellate review unless the trial court has arrived at a definitive position on the issue, it would be inappropriate to review such a decision.Bentleyville.

{¶ 32} Finally, this court improperly categorized the issue raised by the defendant on appeal because the defendant was clearly not challenging the trial court's authority to impose and then suspend a felony prison sentence. Instead, the defendant argued the trial court was required to consider the sentencing factors found in R.C. 2929.12 et seq. before sentencing him to the maximum consecutive sentences. Because it is the sentence imposed in this second sentencing hearing which must comply with felony sentencing laws, this distinction is crucial. SeeMarvin; Brown; Riley.

{¶ 33} The majority's position is that we must be guided by the principle of stare decisis and, thus, we must follow Pitts. Admittedly, this writer concurred in the Pitts decision. However, as Justice Clifford F. Brown stated in his concurring opinion in Baker v. McKnight (1983),4 Ohio St.3d 125, 4 OBR 371, 447 N.E.2d 104, if a case is bad law when it is decided, then it must be overruled. Id. at 130, 4 OBR 371,447 N.E.2d 104 (C. Brown, J., concurring). "It takes more courage to admit a mistake than to stick our heads in the sand of stare decisis and adhere to a holding which perpetuates a recognized injustice." Id.

{¶ 34} We should not perpetuate this conflict with the other districts. Thus, I would find Vlad's assignment of error is not ripe for this court's review because the trial court has yet to impose sentence. I would therefore dismiss this appeal. However, as a conflict has been created, I would certify it to the Supreme Court for resolution.