explaining that “[w]hen a court imposes community control sanctions, the sanctions are directly imposed on the defendant and do not follow as a consequence of a suspended prison sentence. R.C. 2929.15(A). Since 1996, trial courts need to decide which sentence is most appropriate – prison or community control sanctions – and impose whichever option is deemed to be necessary.”
How later courts described this case
- explaining that “[w]hen a court imposes community control sanctions, the sanctions are directly imposed on the defendant and do not follow as a consequence of a suspended prison sentence. R.C. 2929.15(A). Since 1996, trial courts need to decide which sentence is most appropriate – prison or community control sanctions – and impose whichever option is deemed to be necessary.”
Written by the judges who cited it.
The opinion
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DeGenaro, Judge,
dissenting.
{¶ 20} I must respectfully dissent from the majority because the issue appealed by Vlad, whether the maximum sentence was properly imposed, is not ripe for this court’s review. Accordingly, I would dismiss this appeal.
{¶ 21} The state argues that Vlad was sentenced to only five years’ community control sanctions, not to a prison term of 12 months, as Vlad suggests. Thus, the state contends that this appeal is not ripe for our review. I find the state’s position to be consistent with the well-established principle that a claim is not ripe for appellate review unless the trial court has arrived at a definitive position on the issue.
Bentleyville v. Pisani
(1995), 100 Ohio App.3d 515, 518-519 , 654 N.E.2d 394 . The duty of a reviewing court is to decide actual controversies and render judgments that are capable of enforcement.
Knutty v. Wallace
(1995), 100 Ohio App.3d 555, 558-559 , 654 N.E.2d 420 . This court is not required to address issues that are not ripe for review or those that would be purely academic in nature.
Bentleyville; James A. Keller, Inc. v. Flaherty
(1991), 74 Ohio App.3d 788, 791 , 600 N.E.2d 736 . To address an issue prematurely would have the effect of rendering an advisory opinion on potential issues.
State v. Bistricky
(1990), 66 Ohio App.3d 395, 397 , 584 N.E.2d 75 .
{¶ 22} I conclude that ruling on the trial court’s decision to impose a maximum sentence would be premature at this time because the sentence has not yet been imposed. More precisely, if Vlad were to violate his community control sanctions, R.C. 2929.15 would require a second sentencing hearing. See
State v. Marvin
(1999), 134 Ohio App.3d 63, 67-69 , 730 N.E.2d 401 ;
State v. Brown
(2000), 136 Ohio App.3d 816, 821 , 737 N.E.2d 1057 . Accordingly, Vlad should appeal that sentencing order if and when he is actually sentenced to a term of incarceration for violation of community control sanctions.
{¶ 23} Other courts have addressed this issue and reached the same conclusion. For example, in
State v. Gardner
(Dec. 1, 1999), 3d Dist. No. 14-99-24, 1999 WL 1075424 , the Third District held that the issue regarding unlawful “suspended sentences” becomes ripe when the community control sanction had been violated and the sentence is actually imposed. Despite the fact that the original judgment entry of sentencing stated that defendant was to serve a “suspended” 18-month prison term, the court explained that “there is no provision in the sentencing statute which permits a court to suspend a prison term or make community control a condition of a suspended prison term.” Id., citing
State v. Riley
(Nov. 12, 1998), 3d Dist. No. 14-98-38, 1998 WL 812044 , at * 3. Thus, merely because the trial court made reference to an 18-month prison term in its original entry, the
Gardner
court concluded the sentence was not valid under Ohio law at that time. Instead of vacating the sentence, the court explained, “we must view the 18-month sentence referred to by the trial court in its May 22, 1998 entry to have
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been a reservation of the more severe sanction that the court could impose for a violation of the community control sanctions pursuant to R.C. 2929.15(B).” Id. at *2.
{¶ 24} This same rationale was adopted by other courts in
State v. Ogle
(Mar. 1, 2002), 6th Dist. No. WD-01-040, 2002 WL 313386 ;
State v. Greer
(Dec. 1, 1999), 3d Dist. No. 14-99-26, 1999 WL 1075442 ;
State v. McPherson
(2001), 142 Ohio App.3d 274 , 755 N.E.2d 426 ;
State v. Curtis
(2001), 143 Ohio App.3d 314 , 757 N.E.2d 1237 ; and, the Eighth District in
State v. Lamis
(2000), 139 Ohio App.3d 617 , 744 N.E.2d 1260 . Although these cases demonstrate a general trend in the law, this court has previously and erroneously held otherwise.
{¶ 25} This court recently held in
State v. Baker,
152 Ohio App.3d 138 , 2002-Ohio-7295 , 787 N.E.2d 17 , that it was a sentencing error even to designate the sentence as being “suspended.” Thus, that error had to be appealed at the time it was made. I disagree.
{¶ 26} I am persuaded by the reasoning of the districts in
Gardner
and the other cases cited above at ¶ 24 and 25 and would find it a better practice for a defendant to appeal from the sentence when the issue becomes ripe.
{¶ 27} The majority contends that we must follow our decisions in
State v. Pitts
(Mar. 14, 2001), 7th Dist. No. 99 BA 67, 2001 WL 273838 , and
Baker,
which relied on
Pitts .
In
Pitts ,
the trial court .sentenced the defendant to five years of community control sanctions, including four months of incarceration in the Belmont County Jail and six months at the Eastern Ohio Corrections Center. The sentencing entry stated that the penalty for violating the community control sanctions was 24-months of imprisonment, consisting of two consecutive 12-month sentences for the two crimes. After the defendant violated four conditions of his community control order, the trial court revoked his community control sanctions and reimposed the two consecutive 12-month terms of imprisonment in the original sentencing order. The defendant then appealed from that decision.
{¶ 28} This court, however, determined that the defendant waived any challenge to the sentence because he did not file a direct appeal of the judgment that originally imposed a suspended 24-month prison term. “In essence, Appellant now attempts to belatedly appeal that decision by filing the instant appeal. Although it is questionable whether the trial court, in its March 8, 1999 entry, had the authority to impose and then suspend a felony prison sentence, Appellant should have raised this issue by means of a direct appeal of the original sentencing order. See R.C. 2929.51.” Id. at * 2.
{¶ 29} This court further reasoned, “ ‘Unless the judgment is challenged, however, its validity does not become an issue. Thus, when a party has a possibly meritorious assignment of error, but does not appeal the lower court’s
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decision in the case so that a determination of the assigned error can be made, that judgment remains valid * *
Eisenberg v. Peyton
(1978), 56 Ohio App.2d 144, 151 [ 10 O.O.3d 158 , 381 N.E.2d 1136 ]. Appellant failed to question the propriety of the original twenty-four month sentence in a direct appeal. Thus, he should not now be permitted to challenge that sentence in a subsequent community control revocation proceeding.” Id. at * 2.
{¶ 30} However, the rationale in
Pitts ,
for several reasons, is erroneous. First, the judgment entry that originally imposed the “suspended” 24-month prison term did not in fact impose a prison term. Rather, the entry gave notice to the defendant of what the potential sentence would be if he were to violate the community control sanctions, making the sentence conditioned upon whether or not the defendant actually violated the sanctions. Thus, it would be impossible to anticipate at the time of the original sentencing what the trial court might decide in the future if and when the defendant actually violates the sanctions.
{¶ 31} Second, this court’s prior decision also fails to recognize that a trial court in its original sentence need only inform the defendant of the maximum sentence he could possibly receive if he were to violate the community control sanctions. R.C. 2929.15(A). This does not bind the trial court to impose that maximum sentence in the future. See
Curtis .
It merely creates a ceiling. After a defendant violates the sanctions, the trial court is then required to impose a sentence
within the boundaries
set by the notice required at the original sentencing hearing. R.C. 2929.15. Because a claim is not ripe for appellate review unless the trial court has arrived at a
definitive position
on the.issue, it would be inappropriate to review such a decision.
Bentleyville .
{¶ 32} Finally, this court improperly categorized the issue raised by the defendant on appeal because the defendant was clearly not challenging the trial court’s authority to impose and then suspend a felony prison sentence. Instead, the defendant argued that the trial court was required to consider the sentencing factors found in R.C. 2929.12 et seq. before sentencing him to the maximum consecutive sentences. Because it is the sentence imposed in this second sentencing hearing which must comply with felony sentencing laws, this distinction is crucial. See
Marvin; Brown; Riley.
{¶ 33} The majority’s position is that we must be guided by the principle of stare decisis and, thus, we must follow
Pitts .
Admittedly, this writer concurred in the
Pitts
decision. However, as Justice Clifford F. Brown stated in his concurring opinion in
Baker v. McKnight
(1983), 4 Ohio St.3d 125 , 4 OBR 371, 447 N.E.2d 104 , if a case is bad law when it is decided, then it must be overruled. Id. at 130 , 4 OBR 371, 447 N.E.2d 104 (C. Brown, J., concurring). “It takes more courage to admit a mistake than to stick our heads in the sand of stare decisis and adhere to a holding which perpetuates a recognized injustice.” Id.
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{¶ 34} We should not perpetuate this conflict with the other districts. Thus, I would find that Vlad’s assignment of error is not ripe for this court’s review because the trial court has yet to impose sentence. I would therefore dismiss this appeal. However, as a conflict has been created, I would certify it to the Supreme Court for resolution.