I have reservations about the majority's application of R.C.2951.02(F)(3) to the case at bar and must accordingly dissent.
R.C. 2951.02(F)(3) provides that an offender may not be placed on probation or otherwise have his sentence of imprisonment suspended if the offense was committed while the offender was "armed" with a firearm or dangerous ordnance. The July 1, 1983 amendment to R.C. 2951.02 provided an exception to this general prohibition for those offenders convicted of carrying a concealed weapon in violation of R.C. 2923.12. In order to sustain a charge of carrying a concealed weapon, the state must show, among other things, that the instrument is possessed, carried or used as a weapon. See State v. Maloney (1984), 14 Ohio App.3d 109, 14 OBR 124, 470 N.E.2d 210, syllabus; and State v. Anderson (1981),2 Ohio App.3d 71, 72, 2 OBR 79, 80, 440 N.E.2d 814, 815. The purpose behind the amendment is obvious; probation is not prohibited where the accused possesses a weapon and conceals it from ordinary view.
The inherent problem of R.C. 2951.02 is that under the statute an accused is not denied probation if the criminal conduct consists of the possession and concealment of a deadly weapon or dangerous ordnance. On the other hand, a defendant who similarly possesses a weapon and is charged with an offense in which the possession of the weapon is merely incidental to the charged offense is precluded from receiving probation.
The Supreme Court has stated that an accused is "armed" within the meaning of R.C. 2951.02(F)(3) when he is furnished, fortified or equipped with a weapon. State v. Carter (1983), 3 Ohio St.3d 15,16, 3 OBR 362, 364, 444 N.E.2d 1334, 1336. "Thus, as in this statute [R.C. 2951.02(F)(3)], it can only mean someone who is `inpossession of a firearm.'" (Emphasis added.) Id. In light of several post-Carter decisions, however, I believe that the majority has misconstrued the true legislative purpose of R.C.2951.02(F)(3).
There can be no doubt that R.C. 2951.02(F)(3) prohibits probation "[o]nce a defendant is convicted of an offense involving the use of a firearm * * *." State v. Moore (1986),31 Ohio App.3d 225, 227, 31 OBR 508, 509, 510 N.E.2d 825, 826. InMoore, the defendant was convicted of involuntary manslaughter for causing the death of another while committing a misdemeanor,i.e., the discharge of a firearm. It is readily apparent that the *Page 255 defendant was denied probation for committing a crime which not only involved the possession of a firearm but its use as well. Under such facts, the Cuyahoga County Court of Appeals was convinced that "R.C. 2951.02(F) (3) is both unambiguous and mandatory and that a trial court cannot grant probation for any crime committed with a firearm or dangerous ordnance. * * *" Id. at 226, 31 OBR at 509, 510 N.E.2d at 826.
Likewise, in State v. Fisher (1985), 26 Ohio App.3d 197, 26 OBR 418, 499 N.E.2d 344, the defendant pleaded guilty to robbery and admitted to having a firearm in his possession during the robbery and using that firearm in the commission of the charged offense. The court held that under these facts, the trial court had absolutely no discretion to consider probation because of the prohibition of R.C. 2951.02(F) (3). Probation was denied, not because the accused possessed a firearm during the commission of a crime, but because he both possessed and used the weapon to accomplish the robbery.
In State v. Roberts (1986), 33 Ohio App.3d 201,515 N.E.2d 619,2 the defendant was convicted of the unlawful possession of dangerous ordinance (an unloaded, sawed-off-shotgun) contrary to R.C. 2923.17. The weapon was found under a mattress following a search of a mobile home occupied by the defendant and several other individuals. The state appealed after the trial court granted the defendant's request to suspend his one-year sentence and placed him on probation.
The state argued that since the defendant was not convicted of carrying a concealed weapon, his conviction for the unlawful possession of a weapon under R.C. 2923.17 was nonprobational under R.C. 2951.02(F) (3). The court construed the state's argument as meaning that mere ownership of a weapon, i.e., "constructive possession," was equivalent to being "armed" with the weapon pursuant to R.C. 2951.02(F)(3). In rejecting this argument, the court stated the following: "Clearly, mere ownership of a dangerous ordnance does not mean a person is necessarily armed with it under the meaning of the statute." Id. at 204, 515 N.E.2d at 622.
Even before the 1983 amendment to the statute, the Franklin County Court of Appeals recognized the true legislative purpose behind R.C. 2951.02(F)(3) in Columbus v. Bee (1979), 67 Ohio App.2d 65,74, 21 O.O. 3d 371, 377, 425 N.E.2d 409, 416, wherein it observed that:
"* * * The obvious intent of the legislature in enacting * * * [R.C. 2951.02(F)(3)] was to deter the use of deadly weapons in the commission of offenses and to impose a greater penalty when weapons are used * * *." See, also, State v. Moore, supra, at 227, 31 OBR at 509-510, 510 N.E.2d at 826-827.
In the case at bar, it is obvious that appellant did not use the handgun in order to perpetrate the crimes to which he pleaded guilty. It is equally apparent that appellant's possession of the handgun played absolutely no role in his cultivation of marijuana plants or his public indecency. Appellant was denied probation simply because he was in possession of the handgun when *Page 256 arrested and charged. The language of the Bee and Moore decisions demonstrates that the true purpose of R.C. 2951.02(F)(3) is to focus on the use of firearms or deadly weapons and to deny probation to those individuals who use a firearm or dangerous ordnance to facilitate the commission and perpetration of other crimes. Since such was not the case in the matter sub judice, I would sustain the assignment of error and find that R.C. 2951.02 (F)(3) does not render appellant ineligible for probation with respect to the multiple offenses to which he pleaded guilty.
2 It should be noted that on January 14, 1988, State v.Butler (Dec. 3, 1987), Cuyahoga App. No. 53785, unreported, cited by the majority, was certified to the Ohio Supreme Court as being in conflict with State v. Roberts, supra.
Reporter's Note: The appellate decision in State v. Butler was subsequently affirmed at 42 Ohio St.3d 174, 538 N.E.2d 98, with the result that State v. Roberts was, in effect, overruled.