State v. Salter

[Cite as State v. Salter, 2014-Ohio-5524.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 14AP-211
v. : (C.P.C. No. 09CR02-882)
Tracy J. Salter, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on December 16, 2014
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
for appellant.
Yeura R. Venters, Public Defender, and Emily L. Huddleston,
for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the
Franklin County Court of Common Pleas revoking defendant-appellee, Tracy J. Salter's
judicial release and returning him to prison for a term of three years. Because the trial
court erred by imposing that prison term, we reverse and remand the matter for
resentencing.
I. Factual and Procedural Background
{¶ 2} On May 11, 2010, after Salter entered a guilty plea to one count of failure to
comply with an officer's signal or order, a felony of the third degree, the trial court
sentenced him to a prison term of four years.
No. 14AP-211 2
{¶ 3} On September 15, 2011, the trial court granted Salter judicial release
pursuant to R.C. 2929.20. In so doing, the trial court placed Salter on community control
for a period of four years and advised him that his judicial release would be revoked and
he would be returned to prison if he violated any of the community control conditions.
{¶ 4} On November 8, 2013, Salter's probation officer filed a "Request for
Revocation of Probation and Statement of Violation(s)." The probation officer alleged
that Salter had committed multiple violations of the conditions of his community control.
As a result of Salter's violations, the trial court revoked his judicial release and ordered
him back to prison. Instead of reimposing Salter's original four-year prison term, the trial
court noted that a law passed after Salter's sentencing reduced the maximum sentence for
a felony of the third degree to three years. The trial court felt constrained to apply that
new law to Salter's matter and, accordingly, reduced his prison term to three years.
II. The Appeal
{¶ 5} The state appeals and assigns the following error:
The Trial Court erred in reducing Defendant's already-
imposed Prison Term upon Revocation of Judicial Release.
A. The Reimposition of a Prison Term upon the Revocation of
Judicial Release
{¶ 6} In its lone assignment of error, the state contends that the trial court erred
when, following the revocation of judicial release, it imposed a sentence less than Salter's
original sentence. We agree.
{¶ 7} The judicial release statute, R.C. 2929.20, states in relevant part:
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. If the court reimposes the reduced sentence, it
may do so either concurrently with, or consecutive to, any new
sentence imposed upon the eligible offender as a result of the
violation that is a new offense.
No. 14AP-211 3
{¶ 8} As this court has previously concluded, a "court can reimpose the original
sentence that it suspended when it granted judicial release in the event the offender
violates the community control sanction. The statute does not authorize the trial court to
increase or reduce the original sentence." State v. Terry, 10th Dist. No. 11AP-127, 2011-
Ohio-6666, ¶ 12. As we noted in Terry, appellate courts have almost uniformly found
error when a trial court, after revoking judicial release, imposed a sentence greater or
lesser than the original sentence. Id. at ¶ 13 (error in reducing original sentence), citing
State v. James, 5th Dist. No. 2007-CA-0009, 2008-Ohio-103, ¶ 25 (error in reducing
original sentence); State v. Mitchell, 5th Dist. No. 2007-CA-00046, 2007-Ohio-6343, ¶ 18
(error in reducing original sentence); State v. Darthard, 10th Dist. No. 01AP-1291, 2002-
Ohio-4292, ¶ 13 (error in increasing original sentence); State v. Hardy, 8th Dist. No.
83572, 2004-Ohio-2696, ¶ 6 (error in increasing original sentence); State v. Jones, 3d
Dist. No. 10-07-26, 2008-Ohio-2117, ¶ 15 (same); State v. Wiley, 148 Ohio App.3d 82,
2002-Ohio-460, ¶ 10 (9th Dist.) (error in increasing original sentence).
{¶ 9} Here, the trial court originally imposed a four-year prison sentence.
Therefore, upon revocation of his judicial release, the trial court was required to reimpose
that sentence. It did not. Instead, the trial court reduced Salter's sentence because the
legislature, after Salter's sentencing, changed the sentencing laws to reduce the maximum
sentence for felonies of the third degree to three years. Those laws do not apply to Salter's
already imposed four-year sentence. R.C. 1.58(B); State v. Brown, 2d Dist. No. 2013-CA-
13, 2014-Ohio-2301, ¶ 21-24. A trial court is not authorized to modify its original sentence
upon revocation of judicial release.
{¶ 10} Upon the revocation of Salter's judicial release, the trial court erred by
imposing a sentence different from the four-year sentence it previously imposed.
Accordingly, we sustain the state's assignment of error.
III. Conclusion
{¶ 11} Having sustained the state's assignment of error, we reverse the judgment
of the Franklin County Court of Common Pleas and remand the matter for resentencing.
Judgment reversed; cause remanded for resentencing.
BROWN and LUPER SCHUSTER, JJ., concur.