State v. Briggs

[Cite as State v. Briggs, 2014-Ohio-705.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99980
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LOVELL BRIGGS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-476291
BEFORE: Blackmon, P.J., McCormack, J., and Stewart, J.
RELEASED AND JOURNALIZED: February 27, 2014
ATTORNEYS FOR APPELLANT
Eben McNair
McNair Legal Services, L.L.C.
8309 Wyatt Road
Broadview Heights, Ohio 44147
Christopher G. Thomarios
75 Public Square
Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Gittel L. Chaiko
Assistant County Prosecutor
9th Floor Justice Center
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶1} Appellant Lovell Briggs (“Briggs”) appeals the trial court’s imposition of
five years community control sanctions after he obtained judicial release on a six-month
probation violation sentence. He assigns the following error for our review:
The trial court erred as a matter of law by extending appellant’s aggregate
community control sanction beyond five years.
{¶2} Having reviewed the record and pertinent law, we affirm Briggs’s sentence.
The apposite facts follow.
{¶3} On January 20, 2006, the Cuyahoga County Grand Jury indicted Briggs for
one count of failure to pay child support. Briggs pleaded guilty to the indictment and
was sentenced to five years of community control sanctions. The conditions for
community control sanctions were: 1) abide by the rules and regulations of the probation
department, 2) random drug testing, and 3) pay child support in the amount of $153 per
month. He was advised that the violation of any of the conditions “may result in more
restrictive sanctions, or a prison term of six months as approved by law.”
{¶4} On November 21, 2008, Briggs was found to be in violation of his
community control sanctions. The court, nonetheless, continued Briggs’s community
control sanctions. In May 2009, the trial court issued a capias for Briggs because he
failed to appear for his probation violation hearing after he again violated the terms of his
community control sanctions. Briggs turned himself in to the court on February 25,
2010.
{¶5} After a hearing was conducted on March 12, 2010, the trial court concluded
that Briggs had violated his community control sanctions and sentenced him to six
months in prison.
{¶6} On April 20, 2010, Briggs filed a motion for judicial release. After
conducting a hearing, the trial court granted Briggs’s motion on April 30, 2010. The
conditions of his judicial release were, 1) he was placed on five years of community
control sanctions, 2) had to submit to random drug testing, and 3) has to maintain
employment. Briggs did not appeal from this order.
{¶7} On July 27, 2012, a warrant was issued for Briggs for failing to abide by the
terms and conditions of community control sanctions. On August 18, 2012, Briggs was
brought into custody and on August 27, 2012, the trial court found that Briggs had
violated the terms of his community control sanctions. The court, however, continued
his community control sanction with the prior conditions.
{¶8} On December 13, 2012, the trial court issued another capias for Briggs for his
failure to comply with the conditions of his probation. Briggs was brought into custody
on May 10, 2013, and at a hearing conducted on May 15, 2003, the trial court found
Briggs violated the conditions of his community control sanctions. The trial court again
continued his community control sanctions.
{¶9} At the hearing, Briggs’s counsel argued the court could not place him on
community control sanctions because his original community control sanctions were
imposed on January 20, 2006 and, even including the capiases, more than five years, had
elapsed. The trial court stated on the record that it believed the original community
control sanction was irrelevant because the current community control sanction was
associated with his judicial release on April 30, 2010.
Community Control Sanctions
{¶10} In his sole assigned error, Briggs argues the trial court erred by continuing
his community control sanction because the court was without jurisdiction to continue the
community control sanction after five years had elapsed from his 2006 conviction.
{¶11} Briggs relies on R.C. 2929.15(A)(1) for his contention that the trial court’s
continuation of his community control sanction was invalid because it exceeded the
five-year time limitation. R.C. 2929.15(A)(1) states in pertinent part:
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.
{¶12} Thus, the above section deals with the trial court’s initial sentencing of the
defendant. However, in the instant case, the trial court continued the community control
sanction that was imposed as a condition of his judicial release, not his original
conviction. R.C. 2929.20(K) states:
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.
{¶13} Thus, each provision has the five-year limitation, but as it pertains to the
subject matter of each of the statutory sections. R.C. 2929.15 deals with imposing
community control sanctions as part of the original sentence, while R.C. 2929.20 deals
with imposing community control sanctions as a condition of judicial release.
{¶14} Courts have consistently found that R.C. 2929.15 and R.C. 2929.20 are
independent statutes and serve different purposes. See State v. Mann, 3d Dist.
Crawford No. 3-03-42, 2004-Ohio-4703, at ¶ 6; State v. Durant, 5th Dist. Stark No.
2005CA00314, 2006-Ohio-4067, at ¶ 12. The court in State v. Jenkins, 4th Dist. Scioto
No. 10CA3389, 2011-Ohio-6924, ¶ 13, distinguished the statutes, stating:
[T]he 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,
3rd Dist. Nos. 10-07-26 & 10-07-27, 2008-Ohio-2117, at ¶12 [**8]
(citations omitted). See also State v. Franklin, 5th Dist. No.
2011-CA-00055, 2011-Ohio-4078, at ¶ 12.
{¶15} In the instant case, at the time the trial court continued Briggs’s community
control sanction imposed as part of his judicial release, Briggs had served less than three
years of the community control sanction imposed as part of his judicial release. Therefore,
the community control was not invalid for exceeding the five-year limitation set forth in
R.C. 2929.20(K). The cases that Briggs cites are distinguishable because none of them
concern community control that was imposed as a condition of judicial release. They
concern the imposition of community control sanction as part of the original sentence.
State v. Redmond, 2d Dist. Montgomery No. 21500, 2007-Ohio-441; State v. Wright, 2d
Dist. Darke No. 05-CA-1678, 2006-Ohio-6067; State v. Craig, 8th Dist. Cuyahoga No.
84861, 2005-Ohio-1184. Accordingly, Briggs’s sole assigned error is overruled.
{¶16} Judgment is affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas 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, PRESIDING JUDGE
TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR