[Cite as State v. Castillo, 2011-Ohio-1821.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellant                          :     C.A. CASE NO. 24022

vs.                                                 :      T.C. CASE NO. 08CR2999

JULIO CASTILLO                                       :     (Criminal Appeal from
                                                           Common Pleas Court)
        Defendant-Appellee                           :

                                        . . . . . . . . .

                                               O P I N I O N

                     Rendered on the 15th day of April, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No.0069384, P.O. Box 972, Dayton, OH 45422
     Attorneys for Plaintiff-Appellant

Dennis Lieberman, 15 W. Fourth Street, Suite 1000, Dayton, OH 45402
     Attorney for Defendant-Appellee

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This appeal is brought by the State pursuant to R.C.

2945.67, by leave of this court, from the trial court’s order of

April       14,      2010,       terminating             Defendant’s   Julio   Castillo’s,

community control sanctions the court had imposed on August 6,

2009, and imposing new, conditional community control sanctions.
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     {¶ 2} On July 24, 2008, while a member of the Peoria Chiefs

minor league baseball team, Defendant was part of a brawl between

the Peoria Chiefs players and the Dayton Dragons players during

a game at Fifth Third Field in Dayton.   During that brawl, Defendant

threw a baseball into the stands that struck a spectator, Chris

McCarthy, in the head, causing him serious physical harm.

     {¶ 3} Defendant was indicted on two counts of felonious

assault: count one, knowingly causing physical harm by means of

a deadly weapon, R.C. 2903.11(A)(2), and count two, knowingly

causing serious physical harm, R.C. 2903.11(A)(1).        The matter

was tried to the court on July 21-23, 2009.         The court found

Defendant guilty of count two but not guilty of count one.       The

trial court sentenced Defendant to a three year period of community

control which included eight specific sanctions:

     {¶ 4} “1.   A term three years Basic Supervision with an

Interstate Compact Officer.

     {¶ 5} “2.   A requirement that the offender pay court costs

and a supervision fee of $50.

     {¶ 6} “3.   A requirement that the offender obtain and maintain

verifiable employment.

     {¶ 7} “4.    A requirement that the offender attend Anger

Management counseling.

     {¶ 8} “5.   A requirement that the offender write a letter of
                                                                  3

apology with the assistance of an interpreter and present it to

his supervision officer so that it may be forwarded to the victim

by the Division of Criminal Justice Services.

     {¶ 9} “6.    A requirement that the offender comply with the

rules and regulations of his receiving jurisdiction.

     {¶ 10} “7.   A requirement that the offender serve 30 days at

the Montgomery County Jail forthwith from final disposition with

no jail time credit.

     {¶ 11} “8.   A requirement that the offender work towards

obtaining his GED.”

     {¶ 12} The judgment of conviction imposing community control

sanctions was journalized on August 6, 2009, at 3:58 p.m.      One

hour later, on Defendant’s motion, the trial court stayed execution

of its sentence pending Defendant’s appeal.

     {¶ 13} On September 30, 2009, less than two months after being

sentenced to community control sanctions, Defendant filed a motion

to terminate his community control.     The Chicago Cubs, to which

Defendant was under contract, had released Defendant and, as a

non-U.S. citizen, Defendant wanted to return to his home country,

the Dominican Republic.    The State opposed Defendant’s motion to

terminate his community control, in part, because Defendant had

not completed any of his community control sanctions.   On December

1, 2009, the trial court overruled Defendant’s motion to terminate
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his community control, without prejudice.

     {¶ 14} Just three and one-half months after the trial court

denied his first request, Defendant, on March 17, 2010, filed a

second motion to terminate his community control sanctions.

Defendant’s reasons to terminate his community control were the

same as before.    The only difference was that Defendant had

dismissed his appeal.   The State once again objected to terminating

Defendant’s community control sanctions.

     {¶ 15} On April 14, 2010, the trial court granted Defendant’s

motion to terminate his community control sanctions, on the

following conditions:    “1) The Defendant shall leave the United

States forthwith; 2) the Defendant shall not return to the United

States for a minimum of three (3) years; and 3) the Defendant shall

pay the court costs of this action as previously ordered.”

     {¶ 16} The State’s request for an emergency stay of the trial

court’s decision was denied by the trial court.     We also denied

the State’s request to stay the decision of the trial court because

there was no appeal pending before us.

     {¶ 17} The State filed a motion seeking leave to appeal the

trial court’s order of April 14, 2010, terminating Defendant’s

community control sanctions.   We granted the State leave to appeal

on June 2, 2010.

     FIRST ASSIGNMENT OF ERROR
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     {¶ 18} “BECAUSE CASTILLO HAD NOT COMPLETED ANY OF HIS SANCTIONS,

THE TRIAL COURT LACKED THE STATUTORY AUTHORITY TO TERMINATE HIS

COMMUNITY CONTROL.”

     {¶ 19} The State argues that the trial court lacked authority

to terminate Defendant’s community control sanctions and committed

an error of law in doing so.       In support of that claim the State

points out that once a valid sentence has been executed, a trial

court no longer has the power to modify that sentence except as

provided by law.   State v. Hayes (1993), 86 Ohio App.3d 110.

     {¶ 20} The State argues that the trial court’s authority to

reduce or terminate community control sanctions is set forth in

R.C. 2929.15(C), and is there limited to where the offender, “for

a significant period of time, fulfills the conditions of a sanction

in an exemplary manner.”     According to the State, Defendant did

not fulfill even one of the community control sanctions imposed

upon him by the trial court because,        within an hour after the

sentencing hearing, the trial court stayed execution of Defendant’s

sentence pending his appeal, and that stay was never lifted.

Therefore, the trial court’s termination of      Defendant’s community

control sanctions constitutes a violation of R.C. 2929.15(C).

     {¶ 21} Defendant   responds    that   the   State’s   citation   of

authority for the proposition that a sentence can’t be modified

by the trial court once it is executed is inapposite, because
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Defendant’s sentence was never executed, but rather was stayed.

 Defendant further claims that the State’s interpretation of R.C.

2929.15(C) is not supported by case law, and that R.C. 2929.15(C)

doesn’t limit the court in modifying or terminating community

control sanctions for other reasons.    We do not agree.

     {¶ 22} “Criminal procedure in Ohio is regulated entirely by

statute.   The state has thus created its system of criminal law

covering questions of crime and penalties and has provided its

own definitions and procedures.   Municipal Ct. Of Toledo v. State,

ex rel. Platter (1933), 126 Ohio St.103, 184 N.E. 1, paragraph

one of the syllabus.    Therefore, it is necessary to apply Ohio

statutory law to the issue of modification of sentences.”     State

v. Addison (1987), 40 Ohio App.3d 7, 7.

     {¶ 23} R.C. 2929.51(A) formerly provided that, at or after the

time of sentencing for a felony up to the time the defendant is

delivered to the institution where he is to serve his sentence,

the court may suspend the sentence and place the defendant on

probation pursuant to R.C. 2951.02.   R.C. 2929.51(A) was repealed

effective January 1, 1974 (149 v. H490, §2).         Probation was

eliminated as an option and was replaced by community control

pursuant to S.B.2, effective in 1996.

     {¶ 24} While R.C. 2929.51(A) was in effect, and consistent with

its provisions, it was held that “when the full sentence of a
                                                                       7

defendant involved imprisonment, the execution of the sentence

is commenced when the defendant is delivered from the temporary

detention facility of the judicial branch to the penal facility

of the executive branch.”     State v. Addison (1987), 40 Ohio App.3d

7, 9; citing United States v. Benz (1931), 282 U.S. 304, 51 S.Ct.

113, 75 L.Ed. 354.    Therefore, until that execution commenced,

the court could suspend the sentence it imposed and impose a more

severe   sentence    “without     violating    the    multiple-sentence

protections of the Double Jeopardy Clause.           The reason is that,

before its execution, a sentence lacks the constitutional finality

of a verdict of acquittal.”     State v. Meister (1991), 76 Ohio App.3d

15, 16; citing United States v. DiFrancesco (1980), 449 U.S. 117,

101 S.Ct. 426, 66 L.Ed.2d 328.         Nevertheless, “[h]aving once

journalized the sentence, the court is limited in its discretion

to suspend execution of a criminal sentence to those instances

in which statutory authority exists.”         Id., at 16.

     {¶ 25} The trial court’s order of April 14, 2010, from which

this appeal was taken by the State, terminated the community control

sanctions the court had imposed on August 6, 2009, conditioned

on Defendant’s performance of new and less restrictive sanctions.

Having journalized its August 6, 2009 judgment of conviction, the

court was limited to the relief made available by R.C. 2929.15(C)

with respect to both termination of the community control sanctions
                                                                    8

therein imposed and imposition of any less restrictive sanction

the court might impose.

     {¶ 26} On this record, because the court had promptly stayed

execution of its August 6, 2009 judgment, Defendant Castillo could

not have satisfied the prerequisites of R.C. 2929.15(C) regarding

the termination of the sanctions the August 6, 2009 judgment

imposed: that a defendant “for a significant period of time,

fulfills the sanctions in an exemplary manner.”      Neither did the

trial court find that Castillo had satisfied those prerequisites.

 Therefore, the trial court erred when it terminated those

sanctions in its order of April 14, 2010.

     {¶ 27} The first assignment of error is sustained.

     SECOND ASSIGNMENT OF ERROR

     {¶ 28} “THE   TRIAL   COURT’S   ORDER   TERMINATING   CASTILLO’S

COMMUNITY CONTROL, WHILE AT THE SAME TIME IMPOSING ADDITIONAL

SANCTIONS UPON HIM IS UNENFORCEABLE AND VIOLATES THE LAW.”

     {¶ 29} The error assigned is rendered moot by our decision

sustaining the first assignment of error, and we therefore exercise

the discretion conferred on us by App.R. 12(A)91)(c) and decline

to decide the error assigned.

                                Conclusion

     {¶ 30} Having sustained the first assignment of error, we will

reverse and vacate the final order of April 14, 2010, from which
                                                                9

this appeal was taken.   In consequence of that relief, the prior

final order of August 6, 2009 is reinstated, as are the community

control sanctions therein imposed.



FAIN, J. And RINGLAND, J., concur.

(Hon. Robert P. Ringland, Twelfth District Court of Appeals,

sitting by assignment of the Chief Justice of the Supreme Court

of Ohio.)




Copies mailed to:

Andrew T. French, Esq.
Dennis S. Lieberman, Esq.
Hon. Connie S. Price
