Cleveland v. Hess , 2023 Ohio 1147 ( 2023 )

[Cite as Cleveland v. Hess, 2023-Ohio-1147.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 112126
v. :
ERIC A. HESS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 6, 2023
Criminal Appeal from the Cleveland Municipal Court
Case No. 2020-CRB-012421
Appearances:
Mark Griffin, Cleveland Director of Law; Aqueelah A.
Jordan, Chief Prosecutor; and Dallas L. Hawkins,
Assistant City Prosecutor, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant, Eric A. Hess, was sentenced to a term of
community-control sanction by both the Cleveland Municipal Court and the
Cuyahoga County Court of Common Pleas. Hess appeals the October 17, 2022
judgment of the Cleveland Municipal Court denying his motion to terminate
probation in that court.
On June 30, 2021, Hess was convicted of a misdemeanor of the first
degree. He was sentenced to a term of 180 days in jail and placed on community
control for a period of three years. While on community control, Hess pleaded guilty
to several felony offenses in the Cuyahoga County Common Pleas Court and was
sentenced to a three-year term of community control. State v. Hess, Cuyahoga C.P.
No. 661432 (Mar. 7, 2022). When sentenced, Hess was notified that upon a violation
of the terms and conditions of his community control he could receive a potential
prison term of 42 months. Id.On October 13, 2022, Hess filed a motion in the Cleveland Municipal
Court seeking to terminate his probation because he faced a longer potential term of
incarceration in his felony case in Cuyahoga County Common Pleas Court. The
Cleveland Municipal Court denied his motion on October 17, 2022. Hess raises one
assignment of error and argues that R.C. 2951.022 required the Cleveland Municipal
Court to terminate his supervision because he was under supervision and faced a
longer possible term of incarceration from the Cuyahoga County Court of Common
Pleas. The city of Cleveland does not dispute the application of R.C. 2951.022 in this
appeal.
R.C. 2951.022 provides in relevant part:
(A) As used in this section:
(1) “Concurrent supervision offender” means any offender who has
been sentenced to community control for one or more misdemeanor
violations or has been placed under a community control sanction
pursuant to section 2929.16, 2929.17, 2929.18, or 2929.20 of the
Revised Code and who is simultaneously subject to supervision by any
of the following:
(a) Two or more municipal courts or county courts in this state;
(b) Two or more courts of common pleas in this state;
(c) One or more courts of common pleas in this state and one or more
municipal courts or county courts in this state.
***
(B) (1) Except as otherwise provided in divisions (B)(2), (3), and (4) of
this section, a concurrent supervision offender shall be supervised by
the court of conviction that imposed the longest possible sentence of
incarceration and shall not be supervised by any other court.
When Hess was placed on community-control sanctions in the
Cuyahoga County Court of Common Pleas, he became a “concurrent supervision
offender.” R.C. 2951.022(A)(1)(c). Concurrent supervision offenders “shall be
supervised by the court that imposed the longest possible sentence of incarceration
and shall not be supervised by any other court.” R.C. 2951.022(B)(1).
Hess is under supervision by both the Cleveland Municipal Court and
the Cuyahoga County Court of Common Pleas and is subject to a longer possible
sentence of incarceration for his felony offenses. Pursuant to R.C. 2951.022(B)(1),
the Cleveland Municipal Court cannot concurrently supervise Hess. Upon Hess’s
motion, the Cleveland Municipal Court should have terminated its supervision of
Hess. See State v. Grant, 1st Dist. Hamilton Nos. C-150608 and C-150609, 2016-
Ohio-7857, ¶ 12-15 (Court declined to reverse community-control violation sanction
from municipal court because record did not indicate concurrent supervision
offender faced a longer possible sentence in court of common pleas for a felony
offense.).
Accordingly, the sole assignment of error is sustained, the judgment
of the Cleveland Municipal Court is reversed, and the case remanded so that the
Cleveland Municipal Court can terminate its supervision of Hess.
Judgment reversed, and 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
LISA B. FORBES, J., CONCUR