Olmsted Twp. v. Ritchie

[Cite as Olmsted Twp. v. Ritchie, 2022-Ohio-124.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF OLMSTED TOWNSHIP, :
Plaintiff-Appellee, :
Nos. 110107 and 110108
v. :
CHAD B. RITCHIE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: MODIFIED; REMANDED
RELEASED AND JOURNALIZED: January 20, 2022
Criminal Appeal from the Berea Municipal Court
Case Nos. 17-CRB-02066-1, 17-CRB-02066-4, 17-TRC-066722, and
17-TRC-066723
Appearances:
Baker, Dublikar, Beck, Wiley & Mathews, James F.
Mathews, and Brittany A. Bowland, for appellee.
Patituce & Associates, LLC, Joseph C. Patituce, Megan M.
Patituce, and Catherine Meehan, for appellant.
SEAN C. GALLAGHER, A.J.:
Appellant Chad B. Ritchie (“Ritchie”) appeals the trial court’s order
modifying his misdemeanor jail sentence. Because Ritchie has served the maximum
jail term imposed for each misdemeanor count, we find the language in the trial
court’s ruling that states “leaving 150 days of jail available to sentence on each count”
is erroneous as a matter of law. The trial court’s ruling is modified to delete this
language, and we remand the cases to the trial court for issuance of a corrected entry
that reflects no jail time remains.
Background
On September 13, 2018, the trial court sentenced Ritchie on each of
four first-degree misdemeanor counts to 30 days in jail, to run consecutive to each
other, and put Ritchie on five years of basic probation. At that time, Ritchie was
serving a three-year prison sentence in another case. The court stated its intent to
“keep the 120 days” and indicated it “would entertain a motion to reconsider [the]
120 days” at the completion of the prison term Ritchie was then serving. The trial
court advised Ritchie at the hearing that “failure to comply with all the conditions of
probation will result in the imposition of the maximum jail” and that the “maximum
jail” was 180 days in jail for each of the charges and a $1,000 fine.
Despite the advisement that was given, the court never sentenced
Ritchie to those full 180 days. The sentencing entries are clear. The maximum jail
term imposed on each count was 30 days, and Ritchie was placed on five years of
basic probation.
In August 2020, after the conclusion of his three-year prison term,
Ritchie filed a motion to modify sentence requesting the court “for an order granting
him credit for time served” during the prison term toward the sentences that were
imposed on the four misdemeanor counts. That same month, two community-
control violation complaints were filed. A hearing was held on Ritchie’s motion,
along with a hearing on the alleged community-control violations. Thereafter,
another hearing was held on additional community-control violation complaints
that were filed. During the hearing held on September 24, 2020, the court reminded
Ritchie of “the 150-day jail sentence [he] still has over his head” and that it could
“give [Ritchie] a 540-day jail sentence max” for a violation of the terms of the
conditions of probation. Ritchie expressed his belief that “the 30-day jail sentence
was gone” and that all that was left were the fines that could be imposed. The court
offered Ritchie a “chance to only do the 150 and be off of probation” and, otherwise
“I will impose 540 [days] if you mess up.” No jail time resulted from these
proceedings.
On October 6, 2020, the magistrate issued a decision that “credits the
Defendant 30 days of jail sentenced concurrent to his prison sentence * * *, leaving
150 days of jail available to sentence on each count.” (Emphasis added.) The
magistrate denied Ritchie’s request to “delete 150 days of jail remaining” on each
count. Ritchie objected to the language included in the magistrate’s decision,
arguing in part that “no days remained for the court to suspend.”
On October 19, 2020, the trial court overruled Ritchie’s objection and
adopted the magistrate’s decision. The trial court granted Ritchie’s motion to
modify sentence for “a total credit of 120 days of jail” and determined that the
magistrate had “acted within the purview of the law in denying [Ritchie’s] request”
to delete the challenged language.
Ritchie’s Argument
Under his sole assignment of error, Ritchie argues that the trial court
erred by imposing an aggregate sentence that exceeds the maximum statutory limit
of 18 months, in violation of R.C. 2929.41(B)(1).
Understandably, Ritchie believes that his sentence includes an
additional 150 days of jail suspended on each count. Although he was credited with
30 days of jail time on each count, the magistrate’s decision states “leaving 150 days
of jail available to sentence on each count.” Also, at the probation-violation hearing,
the trial court expressed a willingness to impose 540 days in jail for a future
violation. As a result, Ritchie claims the aggregate sentence that was imposed is
invalid and asks that any remaining time to which he is exposed be vacated.1
In support of his argument, Ritchie cites to this court’s decision in
State v. Jones, 2020-Ohio-1273, 153 N.E.3d 689 (8th Dist.), wherein it was
determined that a trial court erred in reimposing a previously suspended 24-month
aggregate consecutive jail sentence after Jones violated the terms of his community-
control sanctions because it exceeded the 18-month aggregate consecutive sentence
permitted under R.C. 2929.41(B)(1). Id. at ¶ 21-23. As later discussed, Ritchie was
not sentenced under the same R.C. 2929.25 provision as the defendant in Jones.
This distinction is important.
1 The original sentence can no longer be set aside. Any sentence based on an error
in the court’s imposition of the original sentence is voidable. See State v. Henderson, 161
Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 37, 43. However, we recognize that
this appeal is from a subsequent decision modifying Ritchie’s sentence.
In this matter, the sentencing entries and transcript reflect that the
court did not suspend the additional 150 days that could have been imposed when
it sentenced Ritchie on each of the misdemeanor counts. The magistrate’s decision
correctly found that Ritchie was “given a 30-day jail sentence [on each count] to run
consecutively for 120 days total. The Court did not impose the 150 days of jail left in
each case.”2 Nonetheless, upon crediting Ritchie with the total jail time imposed,
the trial court erroneously found “150 days of jail available to sentence on each
count.” The relevant misdemeanor sentencing statutes must be considered.
Misdemeanor Sentencing Statutes
R.C. 2929.24(A) authorizes, with certain exception, a sentencing
court to impose a definite jail term upon an offender for a misdemeanor and
provides in relevant part:
if the sentencing court imposing a sentence upon an offender for a
misdemeanor elects or is required to impose a jail term on the offender
pursuant to this chapter, the court shall impose a definite jail term that
shall be one of the following:
(1) For a misdemeanor of the first degree, not more than one
hundred eighty days;
Pursuant to R.C. 2929.41(B)(1), which applies to multiple sentences,
[w]hen consecutive sentences are imposed for misdemeanors under
this division, the term to be served is the aggregate of the consecutive
terms imposed, except that the aggregate term to be served shall not
exceed eighteen months.
2 We recognize that no jail time has actually been imposed for a violation of
community-control sanctions, which presents a ripeness concern. See State v. Daniel,
11th Dist. Trumbull No. 2014-T-0044, 2015-Ohio-3826, ¶ 9; State v. Ogle, 6th Dist. Wood
No. WD-01-040, 2002 Ohio App. LEXIS 870, 11-12 (Mar. 1, 2002). Nonetheless, we find
any error in the modification of Ritchie’s sentence is ripe for review.
The Committee Comment following R.C. 2929.41 explains “[c]onsecutive terms for
misdemeanor[s] are totalled to determine the term to be served, but the total may
not exceed 18 months.” 1974 Committee Comment to H 511, R.C. 2929.41(B)(1).
R.C. 2929.25(A)(1) authorizes, with certain exception, the sentencing
court to sentence an offender for a misdemeanor to community-control sanctions,
which are not to exceed five years pursuant to R.C. 2929.25(A)(2). R.C.
2929.25(A)(1) provides:
Except as provided in sections 2929.22 and 2929.23 of the Revised
Code or when a jail term is required by law, in sentencing an offender
for a misdemeanor, other than a minor misdemeanor, the sentencing
court may do either of the following:
(a) Directly impose a sentence that consists of one or more community
control sanctions authorized by section 2929.26, 2929.27, or 2929.28
of the Revised Code. The court may impose any other conditions of
release under a community control sanction that the court considers
appropriate. If the court imposes a jail term upon the offender, the
court may impose any community control sanction or combination of
community control sanctions in addition to the jail term.
(b) Impose a jail term under section 2929.24 of the Revised Code from
the range of jail terms authorized under that section for the offense,
suspend all or a portion of the jail term imposed, and place the offender
under a community control sanction or combination of community
control sanctions authorized under section 2929.26, 2929.27, or
2929.28 of the Revised Code.
R.C. 2929.25(A)(3) sets forth a notification requirement and states in
relevant part:
At sentencing, if a court directly imposes a community control sanction
or combination of community control sanctions pursuant to division
(A)(1)(a) or (B) of this section, the court shall state the duration of the
community control sanctions imposed and shall notify the offender
that if any of the conditions of the community control sanctions are
violated the court may do any of the following:
***
(c) Impose a definite jail term from the range of jail terms authorized
for the offense under section 2929.24 of the Revised Code.
R.C. 2929.25(D) applies if an offender violates the terms of
community-control sanctions that were imposed. R.C. 2929.25(D)(2) sets forth the
penalties that may be imposed “[i]f an offender violates any condition of a
community control sanction” and permits the court to impose one or more of the
stated penalties, including, under R.C. 2929.25(D)(2)(c), “[a] combination of
community control sanctions, including a jail term.” However, pursuant to R.C.
2929.25(D)(4):
If the court imposes a jail term upon a violator * * * the total time spent
in jail for the misdemeanor offense and the violation of a condition of
the community control sanction shall not exceed the maximum jail
term available for the offense for which the sanction that was violated
was imposed. * * *.
(Emphasis added.)
Analysis
Generally, an appellate court applies an abuse of discretion standard
when reviewing a trial court’s adoption of a magistrate’s decision; however,
questions of law are reviewed de novo. 4030 W. Broad, Inc. v. Neal, 10th Dist.
Franklin No. 20AP-31, 2021-Ohio-3685, ¶ 22, citing Mtge. Bank Corp. v. WWIO,
Ltd., 10th Dist. Franklin No. 16AP-44, 2016-Ohio-7069, ¶ 12.
Despite having credited Ritchie with the total 120 days of jail imposed
for the misdemeanor offenses, the trial court’s entry finds 150 days of jail remains
available to sentence on each count for a violation of the terms of community
control. Because Ritchie has served the maximum jail term on the sentence that was
imposed, Ritchie is not subject to any further jail time for the offenses involved. We
conclude that the finding in the magistrate’s decision, which was adopted by the trial
court, “leaving 150 days of jail available to sentence on each count” is erroneous as
a matter of law.
Under R.C. 2929.25(A)(1), a court has two options for sentencing an
offender to community-control sanctions, either (a) directly impose a sentence
consisting of one or more community-control sanctions, which may be imposed “in
addition” to a jail term that is imposed, or (b) impose a jail term under R.C. 2929.24
from the range of jail terms authorized for the offense, suspend all or a portion of
the jail term imposed, and place the offender under a community- control sanction
or a combination of community-control sanctions. Unlike in felony sentencing
where a trial judge generally cannot impose a prison term and a community-control
sanction together on the same count, R.C. 2929.25(A)(1) expressly authorizes that
very scenario.
In this case, the sentencing entries reflect that the trial court
sentenced Ritchie under subsection (a) when it imposed a jail term of 30 days for
each misdemeanor count in combination with the direct imposition of five years of
community control. In the Jones case, the sentencing court chose option (b) and
sentenced Jones to a jail term, suspended the jail term imposed, and placed Jones
under community-control sanction; thereafter, when Jones violated those
conditions, the trial court reimposed his previously suspended sentence. Jones,
2020-Ohio-1273, 153 N.E.3d 689, at ¶ 17. Upon granting Ritchie’s motion to modify
sentence, the trial court credited Ritchie with the total jail time, or maximum jail
term, that was imposed of 120 days. Therefore, there is no jail time remaining on
his sentence, and no additional time can be imposed.
R.C. 2929.25 is certainly a poorly drafted and confusing statute.
Because the magistrate’s ruling was issued after a probation-violation hearing, it
appears the court’s focus was on R.C. 2929.25(D). But that section cannot be read
at the expense of the language in R.C. 2929.25(A)(1)(a) and (b). The “maximum jail
term available for the offense” language in R.C. 2929.25(D)(4) is conditioned on the
requirement that it “was imposed.” We recognize that there is authority suggesting
otherwise and that felony statutes are not implicated. See, e.g., State v. Coffer, 7th
Dist. Mahoning No. 18 MA 0077, 2020-Ohio-994, ¶ 7; State v. McDonald, 4th Dist.
Ross No. 04CA2806, 2005-Ohio-3503, ¶ 2, 10. However, R.C. 2929.25 cannot be
read to permit the trial court to modify Ritchie’s sentence beyond the maximum jail
term initially imposed.
As the Supreme Court has recognized, “judges are duty-bound to
apply sentencing laws as they are written.” State v. Anderson, 143 Ohio St.3d 173,
2015-Ohio-2089, 35 N.E.3d 512, ¶ 10, citing State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, ¶ 22. Consequently, the only sentence a trial
court has the power to impose, “‘is that provided for by statute.’” Id. at ¶ 12, quoting
State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), quoting Colegrove v.
Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964). The Supreme Court of Ohio
should consider reviewing R.C. 2929.25 in more detail.
Conclusion
The trial court imposed a 30-day jail sentence on each of the four first-
degree misdemeanor counts and credited Ritchie with the total 120 days. At this
point, the maximum jail term for these offenses has been served. Ritchie is still
under community-control sanctions, but under R.C. 2929.25, there is no jail time
hanging over him and no additional time remains available for sentencing for any
potential violations. For these reasons, the trial court’s ruling is modified to delete
the statement “leaving 150 days of jail available to sentence on each count,” which
we find is erroneous as a matter of law. We remand for correction of the trial court’s
entry to reflect no jail time remains.
Judgment modified; case remanded.
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 issue out of this court directing the
municipal court to carry this judgment into execution. Case remanded for the trial
court to issue a journal entry consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
LISA B. FORBES, J., DISSENTS WITH SEPARATE OPINION
LISA B. FORBES, J., DISSENTING:
I respectfully dissent from the majority opinion. I would affirm the
trial court’s decision because I find no error in the trial court’s October 19, 2020
journal entry modifying Ritchie’s 120-day jail sentence to run concurrent to his
prison sentence in another case. Furthermore, I disagree with the majority because,
in my view, the trial court has the authority to sentence Ritchie to a jail term if he
violates the terms of his community-control sanctions.
The only way to give meaning to all of the provisions of R.C. 2929.25
is to affirm the trial court’s decision. Under R.C. 2929.25(A)(1)(a), the trial court
had the authority to sentence Ritchie to a jail term and, in addition, to impose
community-control sanctions. That is what the trial court did. Ritchie was
sentenced to 30 days in jail on each of his four first-degree misdemeanor
convictions, and the trial court imposed five years of community-control sanctions,
as recognized by the majority.
Under R.C. 2929.25(A)(3), the trial court was required to advise
Ritchie of the penalties he faces if he violates his community-control sanctions. The
advisement requirement applies precisely because the trial court imposed jail time
and directly imposed community-control sanctions under R.C. 2929.25(A)(1)(a).
One possible penalty is the imposition of “a definite jail term from the range of jail
terms authorized for the offense[.]” R.C. 2929.25(A)(3)(c); see also
R.C. 2929.25(D)(2)(c). Pursuant to R.C. 2929.25(D)(4), if an offender violates the
terms of his or her community-control sanctions, and the court sentences the
offender to a jail term for that violation under R.C. 2929.25(D)(2)(c), “the total time
spent in jail for the misdemeanor offense and the violation of a condition of the
community-control sanction shall not exceed the maximum jail term available for
the offense for which the sanction that was violated was imposed.” (Emphasis
added.)
While imprecise and inartful, I would not find that the trial court’s
journal entry imposes a suspended sentence or reserves additional jail time on the
underlying first-degree misdemeanor charges of which Ritchie was convicted.
Rather, the trial court’s journal entry “emphasized the court[’]s sentencing of the
offender of a combined jail sanction and community control sanction * * *.” As
required by R.C. 2929.25(A)(3), the court advised Ritchie of the possible sanction of
jail time he may face if he violates his community-control sanctions. The trial court
correctly noted, in its journal entry, that Ritchie had served 30 days in jail on each
first-degree misdemeanor and that the maximum jail term available for each of the
first-degree misdemeanors Ritchie was convicted of was 180 days. This outcome
would be consistent with decisions reached in Coffer, 7th Dist. Mahoning No. 18 MA
0077, 2020-Ohio-994, at ¶ 7, and McDonald, 4th Dist. Ross No. 04CA2806, 2005-
Ohio-3503, at ¶ 10, 15.
Finally, responding directly to Ritchie’s assignment of error regarding
whether the trial court sentenced Ritchie in error by ordering his misdemeanor
sentences to run consecutively to his prison sentence, I would find that aspect of his
argument is moot. Upon release from prison, Ritchie moved the trial court to modify
his misdemeanor sentences to run concurrently, rather than consecutively, to the
prison sentence he had just served. On October 19, 2020, the trial court granted
Ritchie’s motion and his sentence was modified. Any possible error in the trial
court’s order that Ritchie’s misdemeanor sentences were to run consecutively to his
prison sentence has been made moot by the modification to the misdemeanor
sentences entered October 19, 2020.
Accordingly, I would affirm the decision of the trial court.