State v. Ashby , 2011 Ohio 5160 ( 2011 )

[Cite as State v. Ashby, 2011-Ohio-5160.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96119
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
SEAN ASHBY
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-536446
BEFORE: Boyle, J., Blackmon, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: October 6, 2011
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ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} Plaintiff-appellant, state of Ohio, appeals the trial court’s judgment
sentencing defendant-appellee, Sean Ashby, to eight days in jail and to pay a $100 fine.
The state claims the sentence is contrary to law. We agree, and reverse and remand.
Procedural History and Factual Background
{¶ 2} Ashby was charged with one count of theft and twelve counts of forgery.
The record reflects that the charges arose after Ashby and co-defendant, Jainie Borer,
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stole a set of checks from Borer’s grandfather and subsequently forged the grandfather’s
name on the checks.
{¶ 3} Ashby pleaded guilty to an amended count of theft with a furthermore
clause that the victim was an elderly or disabled person and that the amount stolen was
between $500 and $5,000, making it a fourth-degree felony. He also pleaded guilty to
two counts of forgery, which were fifth-degree felonies. At the plea hearing, the state
informed the trial court that the plea deal was “contingent upon the full payment of
restitution, joint and severally, with the co-defendant in the amount of $4,495.” The
remaining counts were dismissed.
{¶ 4} The trial court sentenced Ashby to eight days in jail, gave him credit for
time served, ordered that he pay $100 in fines and $100 in costs. The trial court did not
order Ashby to pay restitution because it found that another judge, assigned to the
co-defendant’s case, ordered the co-defendant to pay the restitution to the victim.
{¶ 5} The state now challenges the eight-day sentence.
Standard of Review
{¶ 6} Appellate courts must apply a two-step approach when reviewing a
defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶4. “First, they must examine the sentencing court’s compliance with all applicable
rules and statutes in imposing the sentence to determine whether the sentence is clearly
and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision
shall be reviewed under an abuse-of-discretion standard.” Id.4
Sentence
{¶ 7} Because Ashby pleaded guilty to a fourth-degree felony and two
fifth-degree felonies, the trial court had two options, i.e., sentence Ashby to community
control sanctions or send him to prison. R.C. 2929.13; State v. Eppinger, 8th Dist. No.
92441, 2009-Ohio-5233, ¶9, citing 1 Griffin & Katz, Ohio Felony Sentencing Law (2006
Ed.) 109, Section 2929.13. If the trial court, in its discretion, chose to sentence Ashby to
prison, then it had to impose a minimum of six months. R.C. 2929.14(A)(5). Here, the
trial court sentenced Ashby to eight days in jail, which was contrary to law. See
Eppinger (facts nearly identical to this case); see, also, State v. Lee, 8th Dist. No. 92327,
2009-Ohio-5820; State v. Becker, 8th Dist. No. 95901, 2011-Ohio-4100.
{¶ 8} Ashby argues that his eight-day prison sentence and $100 fine were
permissible community residential sanctions. We agree that pursuant to R.C.
2929.16(A)(2) and 2929.18, the court can impose jail time as a community residential
sanction and order financial sanctions. In this case, however, the trial court never placed
Ashby under the supervision of the probation department as required by R.C.
2929.15(A)(2)(a), which provides:
{¶ 9} “If a court sentences an offender to any community control sanction or
combination of community control sanctions *** the court shall place the offender under
the general control and supervision of a department of probation *** for purposes of
reporting to the court a violation of any condition of the sanctions, any condition of
release under a community control sanction imposed by the court, a violation of law, or
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the departure of the offender from this state without the permission of the court or the
offender’s probation officer.”
{¶ 10} Moreover, as we noted in Eppinger, the court must also advise the
defendant of the consequences for violating community control. R.C. 2929.19(B)(5)
requires that a court sentencing an offender to community control sanctions must:
{¶ 11} “*** notify the offender that, if the conditions of the sanction are violated,
the court may impose a longer time under the same sanction, may impose a more
restrictive sanction, or may impose a prison term on the offender and shall indicate the
specific prison term that may be imposed as a sanction for the violation, as selected by the
court from the range of prison terms for the offense pursuant to section 2929.14 of the
Revised Code.” The trial court failed to do so here.
{¶ 12} Accordingly, we find Ashby’s sentence to be contrary to law and sustain the
state’s sole assignment of error.
{¶ 13} Judgment reversed and sentence vacated. This case is remanded to the
lower court for further proceedings consistent with this opinion.
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 common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
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MARY J. BOYLE, JUDGE
PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR