Cleveland v. Oke

[Cite as Cleveland v. Oke , 2018-Ohio-2846.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106365
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
JOSHUA OKE
DEFENDANT-APPELLANT
JUDGMENT:
SENTENCE VACATED,
DEFENDANT DISCHARGED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2016 CRD 021235
BEFORE: Blackmon, J., Kilbane, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: July 19, 2018
-i-
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
By: Cullen Sweeney
Assistant Cuyahoga County Public Defender
310 Lakeside, Suite 200
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Barbara A. Langhenry
Director of Law
City of Cleveland - Law Department
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:
{¶1} Defendant-appellant Joshua Oke (“Oke”), appeals from the second of two
sentences imposed for drug possession, following his termination from the Cleveland Municipal
Court’s drug court program. Oke assigns the following error for our review:
The trial court violated [Oke’s] constitutional protection against being placed in
double jeopardy when it imposed multiple punishments for the same offense.
{¶2} Having reviewed the record and pertinent law, we vacate the second sentence and
order Oke discharged, in light of his completion of the court’s original sentence. The apposite
facts follow.
{¶3} In 2016, Oke was charged with first-degree misdemeanor drug abuse in East
Cleveland, and the matter was referred to the Cleveland Municipal Court’s drug court on
November 9, 2016.1 At the time of his acceptance into the program, he was at the Northcoast
Behavioral Healthcare Center, awaiting residential placement. The court provided Oke with the
rules for participating in the program, including that Oke would be subjected to drug testing and
monitoring for at least a year, and that he could be terminated from the program for
noncompliance or withdraw voluntarily.
{¶4} Oke participated in the drug court program for eight months. In June 2017, Oke
informed the court that he had smoked crack and the court ordered him to spend two days in jail.
Oke tested positive for marijuana on August 28, 2017, and September 7, 2017. On September
1
The documents from East Cleveland have not been included within the trial court’s record. However, we
note that in order to participate in the drug court program:
Defendants are required to enter a plea of “guilty” to a first-degree misdemeanor. The sentence is
held in abeyance pending successful completion of the program. Upon successful completion of
Drug Court and payment of a supervision fee, a participant’s guilty plea is vacated, the charge(s)
dismissed and the case sealed or expunged.
https://clevelandmunicipalcourt.org/judicial-services/court-programs/drug-court (accessed April
2018).
13, 2017, the court terminated Oke from the drug court program, and sentenced him to ten days
in jail. The court noted that “ten days is a gift because I could be giving you six months * * *
ten days then you can go on about your business.” The court’s journal entry indicates that
incarceration would end on September 23, 2017, and the matter was returned to the East
Cleveland Municipal Court.
{¶5} One week later, the court held an additional hearing. Oke’s counsel questioned
whether jurisdiction had vested in the East Cleveland Municipal Court in light of Oke’s
termination from drug court, and the court replied:
you can go to East Cleveland where they don’t have heat, air or water sometimes,
electricity or you can stay here. * * * So it’s a technicality, but if you want to
ride on that technicality, you can ride it all the way to East Cleveland jail.
{¶6} The court then imposed a second sentence of 150 days of incarceration. Oke
filed a motion for bond, but the trial court sua sponte converted it to a motion to “mitigate
sentence,” and denied it, then ordered an additional hearing one week later to “revisit” the issue
of mitigation of sentence. This court granted an appellate bond on October 23, 2017, or
approximately three weeks after the expiration of the ten-day sentence originally imposed.
Double Jeopardy
{¶7} Oke asserts that the trial court violated the prohibition against double jeopardy
when it sentenced him to ten days of incarceration on September 7, 2017, then imposed a second
sentence of 150 days on September 13, 2017.
{¶8} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution protects against the imposition of multiple criminal punishments for the same
offense. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 16, citing
Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), and State v.
Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 24. The double jeopardy
protection applies to Ohio citizens through the Fourteenth Amendment to the United States
Constitution and is also guaranteed by Article I, Section 10 of the Ohio Constitution. State v.
Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10.
{¶9} We recognize that courts have held that there is no double jeopardy violation where
a trial court imposes sentence for a “deferred judgment violation” such as a positive drug test,
and later imposes a sentence on the underlying offense. See People v. Lopez, 97 P.3d 223(Colo.App.Div.A 2004); Doyle v. State, 2009 Ark.App. 94, 302 S.W.3d 607 (Div.2).
{¶10} The record in this matter indicates that on September13, 2017, the trial court
imposed a ten-day sentence, and stated that this is “a gift because I could be giving you six
months * * * ten days then you can go on about your business.” This sentence was clearly a
sentence for the underlying offense and not simply a deferred judgment violation. However, one
week later, the court imposed a second sentence of 150 days. Plainly, the court was imposing an
additional, harsher sentence for the same first-degree misdemeanor, despite having already
imposed a ten-day sentence for the offense of drug abuse. In any event, after the court issued the
September 13, 2017 sentence, it returned the matter to East Cleveland, so it is unclear how
jurisdiction was again vested in the drug court for the subsequent sentencing. See State ex rel.
Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 29. Finally, we note
that Oke has completed the ten-day sentence originally imposed by the court.
{¶11} For all of the foregoing reasons, the assigned error is well taken. The second
sentence was imposed in violation of the prohibition against double jeopardy, and is vacated; the
first sentence is deemed completed and Oke is discharged.
{¶12} Sentence vacated and defendant discharged.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cleveland Municipal 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.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH
ATTACHED CONCURRING OPINION
SEAN C. GALLAGHER, J., CONCURRING:
{¶13} I concur with the majority decision to vacate the imposed sentence, but respectfully
write separately to address concerns about a jurisdictional question that Oke failed to raise on
appeal. Oke focused his challenge solely on double jeopardy grounds. Because the factual
record regarding the transfer process is sparse and we do not have the East Cleveland case on
appeal, I will not sua sponte raise the jeopardy issue to take issue with the lead opinion’s
analysis. State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.2d 888, ¶
21.
{¶14} Municipal courts in this jurisdiction should nevertheless be vigilant about
jurisdiction. This case originated in East Cleveland. The East Cleveland criminal case is not
before us, and it is not part of this record. Oke appealed the sentence imposed by the Cleveland
drug court, after he was terminated from the program.
{¶15} Cleveland Municipal Court Loc.R. 4.24 limits those that can participate in the
Cleveland drug court’s program. In this case, Oke entered the program through a referral made
by the probation department of the East Cleveland court as a condition of his community control
supervision imposed in the underlying criminal case. Cleveland M.C. Loc.R. 4.24(C). That
division provides that “persons eligible for the Greater Cleveland Drug Court may enter the
program through three different tracks.” Id. The only track relevant to this case specifically
provides that an eligible person, within criminal cases initiated outside Cleveland Municipal
Court’s territorial jurisdiction, may enter Cleveland’s drug court program through “a referral
from an identified Suburban Court [(in this case East Cleveland)] as a condition of community
control supervision by the probation department of the referring court.” Cleveland M.C. Loc.R.
4.24(C)(3). Thus, it is the probation department that makes the referral to the Cleveland drug
court under that probation department’s obligation to implement the conditions of community
control imposed by the East Cleveland court in the underlying criminal case.
{¶16} Although we do not have all the facts and circumstances of these events available
to us, and this issue was not directly raised on appeal, it is possible that the East Cleveland court
never relinquished jurisdiction over Oke’s case. The drug court program was initiated as a
condition of the community control sanction imposed by the East Cleveland court. Nothing in
Cleveland’s local rule of court provides the drug court with jurisdiction over the defendant’s
entire case. See, e.g., Cuyahoga C.P. Loc.R. 30.2 (F) (“when a case is transferred to a Drug
Court Docket, the assigned Drug Court Judge shall acquire full jurisdiction over that transferred
case.”) When the drug court terminated Oke from the program, the matter was to be referred
back to the originating court, in this case East Cleveland. Jurisdiction may well have been at
issue, but since it was not raised, I agree with the majority that the sentence imposed by the drug
court must be vacated.