In State v. Draper (1991), 60 Ohio St.3d 81, 573 N.E.2d 602, the Supreme Court determined that shock probation granted pursuant to R.C. 2929.51(B) and 2947.061 is qualitatively different from probation granted in lieu of execution of sentence pursuant to R.C. 2929.51(A) and 2951.02. In reaching that determination, the court noted that "one who has been granted [shock] probation pursuant to R.C. 2929.51(B) and 2947.061 not only has an expectation of finality in the original sentence, but has already undertaken to serve it." Id. at 83, 573 N.E.2d at 604. The Supreme Court concluded that "[u]nder such circumstances, the imposition of a new and more severe sentence would constitute multiple punishments for the same offense." Id. Accordingly, the Supreme Court held that "[w]hile R.C. 2951.09 authorizes a trial court to revoke shock probation granted an offender pursuant to R.C. 2929.51(B) and 2947.061 for violation of the terms thereof, the court may not impose a term of incarceration in excess of the original sentence." Id., paragraph two of the syllabus. As I believe the decision of the majority in the case before us is contrary to the holding of the Supreme Court in Draper, supra, I respectfully dissent. *Page 8
R.C. 2929.01(C), defines "actual incarceration" and provides, in relevant part:
"`Actual incarceration' means that an offender is required to be imprisoned for the stated period of time to which he is sentenced that is specified as a term of actual incarceration. If a person is sentenced to a term of actual incarceration, the court shall not suspend his term of actual incarceration, and shall not grant him probation or shock probation, pursuant to section 2929.51, 2947.061, 2951.02, or 2951.04 of the Revised Code, and the department of rehabilitation and correction or the adult parole authority shall not, pursuant to Chapter 2967. of the Revised Code or its rules adopted pursuant to Chapter 2967., 5120., 5143., or 5149. of the Revised Code, grant him a furlough for being a trustworthy prisoner other than a furlough pursuant to division (A)(1) or (2) of section 2967.27 of the Revised Code, parole, emergency parole, or shock parole until after the expiration of his term of actual incarceration, diminished as provided in sections 2967.19, 2967.193, 5145.11, and 5145.12 of the Revised Code."
That the imposition of actual incarceration renders a sentence more severe would seem to be self-evident. Reference to actual incarceration in the criminal code is, in every instance, directly associated with a more severe sentence or enhanced penalty. See, for example, R.C. 2925.02, 2925.03, 2929.11,2929.41, 2929.71, 2929.72, 2941.141, 2941.142 and 2941.144.
Nevertheless, the majority takes the position that because the allowance or withdrawal of the various conditions of incarceration set forth in R.C. 2929.01(C) is discretionary with the court or correctional facility, the defendant is, at best, merely eligible for these circumstances and, accordingly, has no legitimate expectation in the finality of his status with regard to these conditions. Apparently, the majority would thus maintain that because a prisoner has no absolute right to parole, a sentence of life with parole eligibility after thirty years could not be construed as more severe than a sentence of life with parole eligibility after twenty years under R.C.2929.03(C)(2). However, I suspect it would be difficult to convince anyone involved in the criminal justice system that this is so.
Clearly, the trial court's conclusive removal of the defendant's eligibility for the various considerations of R.C.2929.01(C) on resentencing constitutes an enhancement of the original sentence, wherein the defendant's eligibility for these considerations would have turned upon his own behavior in conjunction with what we must presume are objective correctional guidelines. The defendant's "legitimate expectation" under theDraper decision is simply that his eligibility status was initially considered and determined by the trial court, pursuant to objective sentencing criteria, all of which became constitutionally "finalized" upon the commencement of his original incarceration.
With the trial court having chosen not to impose actual incarceration in the first instance, and the defendant having commenced execution of his original *Page 9 sentence, the trial court's imposition of actual incarceration upon resentencing is in conflict with the principles and holding of State v. Draper, supra.
For the foregoing reasons, I would sustain the assignments of error, reverse the judgment of the trial court and remand the case to the court for resentencing.