[Cite as State v. Jones, 2017-Ohio-943.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NOS. 15 MA 0086
) 15 MA 0087
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
WILLIE JONES )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeals from the Youngstown
Municipal Court of Mahoning County,
Ohio
Case Nos. 10CRB02474;
10TRD03709
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Dana Lantz
Youngstown City Prosecutor
Atty. Kathleen Thompson
Assistant Prosecuting Attorney
26 S. Phelps Street
Youngstown, Ohio 44503
No Brief Filed
For Defendant-Appellant: Atty. John A. Ams
134 Westchester Drive
Youngstown, Ohio 44515
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: March 15, 2017
[Cite as State v. Jones, 2017-Ohio-943.]
WAITE, J.
{¶1} Appellant Willie Jones was originally convicted in two separate matters
in late 2010 and was sentenced solely to a period of probation for both by means of a
joint hearing in early 2011. Between 2011 and 2015, Appellant committed several
more criminal acts resulting in additional convictions and several probation violations.
Appellant now appeals two judgment entries from the Youngstown Municipal Court,
both filed May 8, 2015. In both, Appellant was separately sentenced to 180 days in
jail to be served consecutively to any other case. Both of these sentences were the
result of three separate criminal acts which also caused a third probation violation
conviction. Appellant argues that because the trial court did not state that his original
2011 sentence on the underlying convictions was to be served consecutively to any
other case, the court’s imposition of consecutive sentences for his later probation
violation is erroneous. For the reasons provided, Appellant’s arguments are without
merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} The record does not provide many details regarding either case before
us on appeal and Appellant’s history is convoluted. We can glean that on December
10, 2010 in case number 10TRD03709, Appellant was charged with: speeding,
driving with a suspended license, and failure to comply. As the result of a Crim.R. 11
plea agreement, Appellant pleaded guilty to failure to comply and the remaining
charges were dismissed.
{¶3} In case number 10CRB02474, on December 13, 2010, Appellant was
charged with: one count of possession of drug paraphernalia, a misdemeanor of the
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first degree in violation of Y.C.O. 513.12(c)(1); one count of possession of drug
instruments, a misdemeanor of the first degree in violation of Y.C.O. 513.04(a); and
one count of possession of marijuana, a misdemeanor of the first degree in violation
of Y.C.O. 513.03. As the result of a Crim.R. 11 plea agreement, Appellant pleaded
guilty to possession of marijuana and a reduced possession of drug paraphernalia
charge. The remaining charge was dismissed. On February 3, 2011, Appellant was
sentenced to five years of probation in both matters and his driver’s license was
suspended for three years. It appears that Appellant received a combined
sentencing hearing dealing with both cases and a combined sentence, but was
issued separate judgment entries in each case.
{¶4} On January 3, 2012, notification of a possible probation violation was
filed. The violations included: failure to report to probation on two occasions, failure
to complete community service, failure to comply with drug and alcohol treatment,
failure to pay financial sanctions, and an arrest for assault on November 25, 2011. It
appears that Appellant was placed on house arrest in connection with these charges.
Before the trial court’s scheduled hearing, a second notification of possible probation
violation was filed because Appellant failed to comply with house arrest.
{¶5} Appellant was found guilty of the criminal charge. On March 20, 2013,
Appellant was sentenced to a thirty-day jail term for the first violation. Notably, this
sentence was ordered to run consecutively to any other sentence. Appellant served
his 30-day jail sentence and no appeal was taken of this matter.
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{¶6} Appellant was also found guilty of his second probation violation, and
on May 20, 2013 Appellant was sentenced to a 180 day term of incarceration which
was then suspended. We note that this sentence was also ordered to run
consecutively to any other sentence.
{¶7} On November 7, 2014, a third notice of possible probation violation was
filed, alleging the following: failure to report to probation on two occasions, failure to
complete community service, failure to comply with alcohol and drug treatment,
failure to pay financial sanctions, and an active “FTA capias” out of Liberty Twp.
Appellant stipulated to all violations. On May 8, 2015, the trial court sentenced
Appellant to 180 days in jail for his original charges of possession of marijuana/drug
abuse and 30 days in jail for drug paraphernalia. The court ordered these sentences
to run concurrently, but consecutively to any other sentence. Appellant was
sentenced to an additional 180 days for failure to comply. This sentence was also
ordered to be served consecutively with any other sentence. It is from these
judgment entries that Appellant timely appeals.
{¶8} It is noted that Appellant filed a motion for sentence modification and a
motion seeking stay pending appeal. The trial court denied the former motion and
granted the latter. It is further noted that the state declined to file a response brief in
this matter.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING
CONSECUTIVE SENTENCES AFTER REVOKING PROBATION
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BECAUSE THE SENTENCES WERE NOT ORIGINALLY IMPOSED
CONSECUTIVELY.
{¶9} Pursuant to R.C. 2929.41(B)(1):
A jail term or sentence of imprisonment for a misdemeanor shall be
served consecutively to any other prison term, jail term, or sentence of
imprisonment when the trial court specifies that it is to be served
consecutively or when it is imposed for a misdemeanor violation of
section 2907.322, 2921.34, or 2923.131 of the Revised Code.
When consecutive sentences are imposed for misdemeanor 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.
{¶10} Appellant asserts that the trial court’s February 3, 2011 sentence for the
underlying charges in case number 10TRD03709, which imposed probation, did not
order that his sentence run consecutively to any other sentence. Likewise the trial
court’s February 3, 2011 sentence of probation for his charges in case number
10CRB02474 was not ordered as a consecutive sentence. As such, Appellant
argues that the trial court’s May 8, 2015 imposition of consecutive sentences
modified the original combined sentence. Because the original orders were final,
Appellant argues that the trial court had no jurisdiction to modify them by now
ordering a consecutive sentence.
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{¶11} Because Appellant was not originally given a definite jail term, but was,
instead, sentenced to probation, we must first determine whether sentencing was
appropriate, here. Pursuant to R.C. 2929.25(A)(3):
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:
(a) Impose a longer time under the same community control sanction if
the total time under all of the offender's community control sanctions
does not exceed the five-year limit specified in division (A)(2) of this
section;
(b) Impose a more restrictive community control sanction under section
2929.26, 2929.27, or 2929.28 of the Revised Code, but the court is not
required to impose any particular sanction or sanctions;
(c) Impose a definite jail term from the range of jail terms authorized for
the offense under section 2929.24 of the Revised Code.
{¶12} Here, following his third probation violation, the trial court chose to
impose sentence on Appellant for the underlying convictions pursuant to R.C.
2929.25(A)(3)(c). As such, the court was required to impose a definite jail term from
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the range of jail terms authorized for the offenses. As noted by the trial court’s
sentencing entries, the offenses relevant to this appeal include drug abuse and drug
paraphernalia (case number 10CRB02474) and failure to comply (case number
10TRD03709). Pursuant to R.C. 2929.24(A)(1), the statutory range for possession of
drug paraphernalia and failure to comply, both misdemeanors of the first degree, is
180 days or less. According to R.C. 2929.24(A)(4), the statutory range for drug
abuse, a misdemeanor of the fourth degree, is 30 days or less.
{¶13} In the trial court’s May 8, 2015 judgment entry for case number
2010TRD03709, Appellant was sentenced to a 180-day jail term for the probation
violation arising from his failure to comply conviction. The trial court’s other May 8,
2015 judgment entry addressed Appellant’s sentence for the probation violation
arising from case number 10CRB02474. In that case, because he violated his
probation Appellant was sentenced to a 180-day jail term on the underlying drug
abuse conviction and a 30-day jail term on the underlying drug paraphernalia
conviction. The trial court ordered the sentences arising from the drug abuse and
drug paraphernalia convictions to run concurrently, but consecutive to the failure to
comply sentence. Each sentence was entered as the result of a probation violation
and is within the appropriate statutory sentence range. We note that the transcripts
of the original sentencing hearing were not provided to this Court, so the record does
not clearly reflect whether Appellant received notice that a jail term would be imposed
if he violated his probation. However, “[w]hen a defendant fails to provide a complete
and proper transcript, a reviewing court will presume regularity of the proceedings in
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the trial court[.]” State v. Dumas, 7th Dist. No. 06 MA 36, 2008-Ohio-872, ¶ 14, citing
State v. Johnson, 9th Dist. No. 02CA008193, 2003-Ohio-6814, ¶ 9. This record
reflects then, that the trial court complied with R.C. 2929.25. The question remains
whether the trial court properly ordered the sentences to run consecutively.
{¶14} In support of his argument, Appellant relies on State v. Fankle, 2d Dist.
Nos. 26350, 26351, 26352, 2015-Ohio-1581. In Fankle, the appellant received a
180-day suspended jail sentence and was placed on community control. Id. at ¶ 3.
Two months later, Fankle was charged with two additional crimes and received two
180-day jail terms, to run concurrently, with 120 days suspended. He was again
placed on community control. Id. at ¶ 4.
{¶15} One month later, Fankle was charged with violating a protection order.
The trial court imposed the following sentence: 180-day jail sentence, revocation of
community control in the prior cases, and reinstatement of the prior 180-day
suspended sentences. Id. at ¶ 5. In other words, Fankle was sentenced to a total of
three 180-day jail sentences, which the trial court ordered were to run consecutively.
Fankle did not contest the trial court’s ability to order his sentence from the third case
to run consecutive to the sentences arising from his first and second. He argued that
the trial court lacked authority to run the sentences stemming from the first two cases
consecutive to one another, because the trial court had not included language
regarding consecutive sentences in these judgment entries. Id. at ¶ 6.
{¶16} On appeal, the Fifth District agreed. While acknowledging that the trial
court could not have included consecutive sentencing language in the first judgment
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entry, as it was the sole sentence at the time, the Court focused on the fact that the
second sentencing entry did not include consecutive sentencing language despite
the existence of the first conviction. As the trial court had the ability to include such
language but failed to expressly do so, the Court held that the first two sentences
involved concurrent jail terms. Further, the trial court’s attempt to order that the
previously suspended sentences were to be consecutive only by means of the
revocation of community control amounted to a modification of Fankle’s sentence, for
which the trial court lacked jurisdiction. Id. at ¶ 8. The heart of the Fankle decision is
that the two 180 day suspended terms imposed on Fankle at his first probation
violation sentencing were specifically ordered to be served concurrently. There was
no consecutive language at all in his first probation violation order. When Fankle
again violated probation, the trial court reimposed the 180 day sentences from his
original sentencing and his first probation violation, but for the first time ordered that
they run consecutively and not concurrently, as the court had originally ordered.
Hence, it appears that the court attempted to change his 180 day concurrent
sentences from his original sentencing and his first probation violation to consecutive
sentences. For this reason, the Second District held that the sentence for Fankle’s
second probation violation amounted to an improper modification of earlier final court
orders.
{¶17} Appellant’s case is readily distinguishable from Fankle. Here, the trial
court imposed five years of basic probation in the original cases – 10CRB02474 and
10TRD03709. Although the existence of two convictions may have authorized the
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trial court to order consecutive sentences, the court did not do so and sentenced
instead to a combined period of five years of probation for all convictions. The
validity of the original sentences are not at issue on appeal. The issue, here, is
whether the trial court properly ordered Appellant’s May 8, 2015 sentences on the
underlying convictions which arose due to his third probation violation to run
consecutively. Again, we note that Appellant was charged and sentenced three
separate times for three separate instances of probation violations. For the first, it is
clear that Appellant served his thirty-day sentence for the crime on which the violation
was based. This charge was specifically ordered consecutive, but at the time,
Appellant was under no other order requiring jail time. The sentence in his first
probation violation is also not at issue in this appeal. Appellant’s second violation
resulted in a 180 day suspended sentence that was specifically ordered to run
consecutively.
{¶18} The trial court’s May 20, 2013 judgment entry for Appellant’s second
probation violation stated: “180 days jail – stayed until further order by court.
Consecutive to any other sentence.” (5/20/13 J.E.)
{¶19} Similarly, the trial court’s May 8, 2015 third probation violation judgment
entry in case number 10CRB02474 states: “M1 drug abuse 180 days jail
consecutive. M4 Drug para 30 days jail concurrent with drug abuse[.] [U]pon release
from jail report to probation to do community service for fines, costs, fees –
community service hearing held – defendant Indigent – unable to pay.” (5/8/15 J.E.)
In case number 10TRD03709, the trial court’s sentencing entry states: “Fail to
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comply M1 180 days jail consecutive[.] [U]pon release from jail report to probation to
do community service for fines, costs, fees owed – community service hearing held –
defendant found indigent – unable to pay.” (5/8/15 J.E.) Unlike Fankle, the trial court
specifically included consecutive sentencing language in the judgment entries
entered in all three of Appellant’s probation violations. Unlike Fankle, the trial court
here was not reinstating earlier jail sentences that were concurrent and attempting to
change these sentences, at a later date, into consecutive sentences. The trial court
appropriately sentenced Appellant to entirely new sentences and appropriately
ordered them to run consecutively. The trial court here had the ability to impose a
definite sentence for his earlier convictions pursuant to R.C. 2929.25(A)(3)(c). The
court, for the first time, was entering a definite sentence of incarceration. The trial
court specifically ordered these definite terms to run consecutively. Because the
judge was not merely reimposing an earlier, suspended definite jail sentence, these
new sentences in no way modify the earlier probation only sentence and Fankle does
not apply. The trial court specifically ordered these sentences to run consecutively
with one another ─ 30 days concurrent with 180 days for one, 180 days on the other
─ but both 180 day terms to run consecutively. As the trial court included
consecutive sentencing language and the aggregate total of the sentences is within
the 18 month total maximum sentence, the trial court properly imposed these new
consecutive sentences. Id. at ¶ 3. Again, this matter did not involve reimposition of
an earlier final order of a definite jail term sentence. Accordingly, Appellant’s sole
assignment of error is without merit and is overruled.
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Conclusion
{¶20} Appellant contends that the trial court improperly imposed consecutive
sentences for his second and third probation violations. However, the relevant
judgment entries contain the requisite consecutive sentencing language and the
aggregate sentence is within 18 months. Accordingly, Appellant’s argument is
without merit and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.
State v. Jones
Combined Opinion