Cleveland v. Scott , 8 Ohio App. 3d 358 ( 1983 )

Respectfully, I dissent. In my view the appropriate disposition is affirmance. I would write the rationale for judgment this way —

The defendant-appellee, Walter Scott (defendant), plead no contest in Cleveland Municipal Court to violations of R.C.4301.58(B) (selling, keeping, or possessing alcohol for sale without permit), and R.C. 4399.09 (keeping a place where liquor is sold in violation of law). For each violation the court imposed a fine of $100, $50 suspended.⁵

From this judgment the city of Cleveland appeals, assigning one error:

"The trial court erred in suspending part of the mandatory fine imposed under Ohio Revised Code Sec. 4399.99, for keeping a place where intoxicating liquors are sold."

For the reasons adduced, the judgment is affirmed.⁶

I R.C. 4399.99(C) provides:

"Whoever violates section 4399.09 of the Revised Code shall be fined not less than one hundred nor more than five hundred dollars; for each subsequent offense such person shall be fined not less than two hundred nor more than five hundred dollars."

This section does not expressly disallow suspension of sentence.⁷ Therefore, R.C. 2929.51(E) applies:

"At the time of sentencing and after sentencing, when a fine is imposed, the court may:

"(1) Suspend all or any portion of the fine, upon any conditions that the court imposes in the interests of justice and the correction and rehabilitation of the offender; * * *."

Since the $50 suspension for violation of R.C. 4399.09 was within the trial court's discretion, State v. Brewer (1944),75 Ohio App. 329, 340-341, the assignment of error is without merit.

II The judgment should be affirmed.

⁵ Because of the lack of factual context, the court is unable to consider the defendant's suggestion that the statutory violations are allied offenses. Cf. Weaver v. State (1906),74 Ohio St. 53.

⁶ The city does not assign the declaration of unconstitutionality as error. Therefore, it need not be decided. This conclusion is fortified by the principle that a reviewing court should not decide a constitutional question if a decision can be reached without reference to the question.

⁷ When the legislature intends to disallow suspension of sentence, it knows how to do so. Compare R.C. 4399.99(C) with the language of the former R.C. 4301.99(E):

"Whenever a person is found guilty of violating division (A) or (B) of section 4301.58 of the Revised Code, the court, in sentencing such person, shall not remit or suspend, in whole or in part, the penalty provided by this division for such violation." (130 Ohio Laws 1002.)