State v. Nash

[Cite as State v. Nash, 2012-Ohio-1188.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96575
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
ANTWAN NASH
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-545811
BEFORE: Jones, J., Stewart, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: March 22, 2012
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: James M. Rice
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s judgment
sentencing defendant-appellee, Antwan Nash, to a three-day jail term with credit for three
days served and imposing a $100 fine. We affirm.
I.
{¶2} Nash pleaded guilty to one count of drug possession. The trial court
sentenced him to a three-day jail term with credit for three days served and imposed a
$100 fine. The state raises the following assignment of error for our review:
The sentence imposed by the trial court is contrary to law as the trial court
failed to sentence appellee to a valid sentence of imprisonment or
community control sanctions, failed to place appellee under supervision,
and failed to inform appellee of the consequences of appellee’s failure to
pay the fine or costs.
II.
{¶3} The issue raised by the state was visited by this court in State v. Eppinger,
8th Dist. No. 92441, 2009-Ohio-5233.1 There, the trial court sentenced the defendant to
a 25-day jail term, with credit for 25 days served. This court found the sentence
1
Accord State v. Ashby, 8th Dist. No. 96119, 2011-Ohio-5160; State v. Murphy, 8th Dist. No.
93093, 2010-Ohio-1422; and State v. Lee, 8th Dist. No. 92327, 2009-Ohio-5820, following Eppinger’s
holding.
contrary to law under the first prong of State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124. Kalish guides our review of felony sentences and
sets forth a two-prong test. Under the first prong, we review whether the trial court
complied with all applicable rules and statutes to determine if the sentence is clearly and
convincingly contrary to law. If the first prong is satisfied, then we review the trial
court’s decision under an abuse-of-discretion standard. Id. at ¶ 4.
{¶4} In Eppinger, this court found that in sentencing a felony offender, a trial
court has the option of a sentence of imprisonment or a sentence of community control
sanctions. Id. at ¶ 9, quoting 1 Griffin & Katz, Ohio Felony Sentencing Law, Section
2929.13 at 109 (2006 Ed.). If a trial court sentences an offender to community control
sanctions, it can impose a sanction authorized under R.C. 2929.16, 2929.17, or 2929.18.
Eppinger at id., citing R.C. 2929.15. These sections govern residential sanctions,
nonresidential sanctions, and financial sanctions, respectively. Id.
{¶5} Here, the trial court pronounced sentence against Nash as follows: “Well,
this is a 2009 case, and it didn’t happen yesterday. You’re sentenced to three days in
County Jail, with credit for three days served, and you have to pay a $100 fine.”
{¶6} The state contends that the trial court did not sentence Nash to either
imprisonment or community control sanctions. Nash, on the other hand, contends that
the trial court imposed a proper community control sanction. We agree with Nash.
{¶7} Jail is a community residential sanction under R.C. 2929.16 and a fine is a
financial sanction under R.C. 2929.18. The state contends that because the trial court
did not place Nash under the control of the probation department, it did not sentence him
to a community control sanction. The state’s argument, however, ignores the purpose of
placing a defendant under the supervision of the probation department. In particular,
R.C. 2929.15(A)(2)(a) provides that in sentencing a defendant to community control
sanctions, the sentencing court:
shall place the offender under the general control and supervision of a
department of probation in the county that serves the court for the purposes
of reporting to the court a violation of any condition of the sanctions, any
condition of release under a community control sanction imposed by the
court, a violation of law, or the departure of the offender from this state
without the permission of the court or the offender’s probation officer.
(Emphasis added.)
{¶8} The language “shall place the offender under the general control and
supervision of the department of probation” has to be read in conjunction with the
purpose of supervising a defendant on community control: to report a “violation of any
condition of the sanctions, any condition of release under a community control sanction
imposed by the court, a violation of law, or the departure of the offender from this state
without the permission of the court or the offender’s probation officer.” Id. Thus,
supervision is only necessary where there is a condition that must be overseen or a term
during which a defendant’s conduct must be supervised. If there are no conditions,
there is nothing to supervise. Further, when a court imposes a fine, it becomes a
judgment against the defendant, enforceable by execution under R.C. 2929.18, and there
would be no need to monitor payment of the fine. There would also be no need for
notification to the defendant under R.C. 2929.19 because there would be no conditions to
his community control sanctions.
{¶9} In light of the above, we believe that the trial court properly sentenced Nash
to community control sanctions. But even if the sentence were not deemed to be a
proper community control sanction, we still believe it was a proper sentence. This
court’s reliance in Eppinger on “sentence of imprisonment” comes from the treatise Ohio
Felony Sentencing Law, Section 2929.13 at 109 (2006 Ed.), not the sentencing statutes.
In Eppinger, this court interpreted “sentence of imprisonment” as only being a prison
sentence. The word “imprisonment” is not defined in R.C. Chapter 2929, but is defined
in R.C. 1.05 as follows:
As used in the Revised Code, unless the context otherwise requires,
“imprisoned” or “imprisonment” means being imprisoned under a sentence
imposed for an offense or serving a term of imprisonment, prison term, jail
term, term of local incarceration, or other term under a sentence imposed
for an offense in an institution under the control of * * * a county * * * [or]
municipal[ity].
{¶10} Thus, a jail sentence is a “sentence of imprisonment.” And under R.C.
2967.191, Nash was entitled to credit for time served.
{¶11} Additionally, we find this court’s reliance in Eppinger on a portion of a
comment from the Ohio Felony Sentencing Law treatise should be considered in the
context of its accompanying text. Specifically, Eppinger cited the comment, “‘The
sentencing court has discretion to impose either a sentence of imprisonment or
community control sanctions.’” Id. at ¶ 9, quoting Ohio Felony Sentencing Law at 109.
The full text, which was not cited in Eppinger, provides as follows:
The sentencing court has discretion to impose either a sentence of
imprisonment or community control sanctions (1) in accordance with the
overriding purposes of sentencing — protection of the public and
punishment of the offender — and (2) after determining the relative
seriousness of the defendant’s conduct and the likelihood that the defendant
will commit additional offenses, (3) provided that the sentence does not
impose an unnecessary burden on governmental resources. (Emphasis
added; footnotes omitted.) Ohio Felony Sentencing Law at id.
{¶12} We believe this comment suggests that a trial court has fairly broad
discretion in fashioning sentences. We find support for this belief in the Revised Code.
R.C. 2929.12(A), governing the factors to be considered in felony sentencing, provides
that “[u]nless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a
court that imposes a sentence under this chapter upon an offender for a felony has
discretion to determine the most effective way to comply with the purposes and principles
of sentencing set forth in section 2929.11 of the Revised Code.” (Emphasis added.)
Thus, under this section, unless the sentencing court must impose a mandatory sentence,
it has discretion, within the mandates of R.C. 2929.11, 2929.13, and 2929.14, in
sentencing a felony offender.
R.C. 2929.11(A) provides that:
[a] court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the
offender and others and to punish the offender and others and to punish the
offender using the minimum sanctions that the court determines accomplish
those purposes without imposing an unnecessary burden on state or local
government resources.
{¶13} In light of the above, it may be that, in its discretion, the sentencing court
finds that time served was sufficient “to protect the public from future crime by the
offender and others and to punish the offender,” there is no need for the defendant to be
supervised and monitored, and monitoring payment of a $100 fine would “impose an
unnecessary burden on the state or local government resources.” Removing that
discretion from a sentencing court could result in the inefficient result of a defendant
having to meet with a probation officer for no reason. Further, the costs associated with
involving the probation department for the collection of a $100 fine would likely exceed
the cost of the fine.
{¶14} The Second and Ninth Appellate Districts have also considered this felony
sentencing issue and come to the same conclusion. In State v. Allen, 9th Dist. Nos.
10CA 009910 and 10CA009911, 2011-Ohio-3621, the Ninth Appellate District found
that:
[i]n some cases the facts do not support a finding under Section
2929.13(B)(1) [for imposing a prison term], but the sentencing court also
determines that a community control sanction is inconsistent with the
purposes and principles of sentencing, thus taking the case outside the
scope of both 2929.13(B)(2)(a) and (b). In such cases, the court is “not
compelled * * * to impose a prison sentence or * * * to impose a
community control sanction. Rather, it [is] within the trial court’s
judgment to determine, after considering the factors set forth in R.C.
2929.12, what type of sentence would best serve the overriding purposes
and principles of sentencing contained in R.C. 2929.11.” Id. at ¶ 10,
quoting State v. Sutherland, 2d Dist. No. 97CA24.
{¶15} In light of the above, Nash’s sentence was not contrary to law, the first
prong under Kalish.
{¶16} We also do not find that the trial court abused its discretion in sentencing
Nash. An abuse of discretion is more than an error of judgment; it means that the trial
court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Nash pleaded guilty to a
fifth degree felony count of drug possession. The charge resulted from Nash having
Oxycodone in his pocket, which was not prescribed for him. Prior to this case, and at
the time of sentencing, Nash was working full time and paying child support. Nash’s
mother had recently passed away and he was “getting [his] life together.” He was also
supporting his two younger brothers. On this record, the trial court’s sentence was not
an abuse of discretion, the second prong under Kalish.
{¶17} Finally, the state’s assignment of error implies that costs were assessed to
Nash and the trial court failed to advise him of the consequences of not paying costs.
But costs were waived here. The state also contends that the trial court “failed to notify
Nash of the consequences of his failure to pay his fine as required by R.C.
2929.19(B)(5).” But as already stated, the fine becomes a judgment against Nash,
enforceable by execution under R.C. 2929.18.
{¶18} In light of the above, the state’s assignment of error is overruled.
III.
{¶19} Because we believe our decision here conflicts with Eppinger and its
progeny, under App.R. 26 and Loc.App.R. 26, we ask the administrative judge to submit
this matter to the court for sua sponte2 en banc consideration of the following questions:
(1) whether a sentence to a jail term and fine without conditions and supervision of a
probation department constitutes a community control sanction? (2) If such a sentence
does not constitute a community control sanction, does a trial court nonetheless have
discretion to impose such a sentence on a felony offender?
{¶20} Judgment affirmed.
It is ordered that appellee recover of appellant 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MELODY J. STEWART, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
2
DiGiorgio v. Cleveland, 8th Dist. No. 95945, 2011-Ohio-5824, ¶ 1.