[Cite as Cleveland v. Oke , 2018-Ohio-2846.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106365



                                        CITY OF CLEVELAND

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                               JOSHUA OKE

                                                         DEFENDANT-APPELLANT




                                          JUDGMENT:
                                       SENTENCE VACATED,
                                     DEFENDANT DISCHARGED



                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2016 CRD 021235

              BEFORE: Blackmon, J., Kilbane, P.J., and S. Gallagher, J.

              RELEASED AND JOURNALIZED:                   July 19, 2018

                                                   -i-
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender

By: Cullen Sweeney
Assistant Cuyahoga County Public Defender
310 Lakeside, Suite 200
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Barbara A. Langhenry
Director of Law
City of Cleveland - Law Department
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114




PATRICIA ANN BLACKMON, J.:
        {¶1}     Defendant-appellant Joshua Oke (“Oke”), appeals                   from the second of two

sentences imposed for drug possession, following his termination from the Cleveland Municipal

Court’s drug court program. Oke assigns the following error for our review:

        The trial court violated [Oke’s] constitutional protection against being placed in
        double jeopardy when it imposed multiple punishments for the same offense.

        {¶2}      Having reviewed the record and pertinent law, we vacate the second sentence and

order Oke discharged, in light of his completion of the court’s original sentence. The apposite

facts follow.

        {¶3}     In 2016, Oke was charged with first-degree misdemeanor drug abuse in East

Cleveland, and the matter was referred to the Cleveland Municipal Court’s drug court on

November 9, 2016.1 At the time of his acceptance into the program, he was at the Northcoast

Behavioral Healthcare Center, awaiting residential placement. The court provided Oke with the

rules for participating in the program, including that Oke would be subjected to drug testing and

monitoring for at least a year, and that he could be terminated from the program for

noncompliance or withdraw voluntarily.

        {¶4} Oke participated in the drug court program for eight months. In June 2017, Oke

informed the court that he had smoked crack and the court ordered him to spend two days in jail.

Oke tested positive for marijuana on August 28, 2017, and September 7, 2017. On September


          1
           The documents from East Cleveland have not been included within the trial court’s record. However, we
note that in order to participate in the drug court program:

        Defendants are required to enter a plea of “guilty” to a first-degree misdemeanor. The sentence is
        held in abeyance pending successful completion of the program. Upon successful completion of
        Drug Court and payment of a supervision fee, a participant’s guilty plea is vacated, the charge(s)
        dismissed          and           the           case             sealed        or        expunged.
        https://clevelandmunicipalcourt.org/judicial-services/court-programs/drug-court (accessed April
        2018).
13, 2017, the court terminated Oke from the drug court program, and sentenced him to ten days

in jail. The court noted that “ten days is a gift because I could be giving you six months * * *

ten days then you can go on about your business.” The court’s journal entry indicates that

incarceration would end on September 23, 2017, and the matter was returned to the East

Cleveland Municipal Court.

       {¶5}    One week later, the court held an additional hearing. Oke’s counsel questioned

whether jurisdiction had vested in the East Cleveland Municipal Court in light of Oke’s

termination from drug court, and the court replied:

       you can go to East Cleveland where they don’t have heat, air or water sometimes,
       electricity or you can stay here. * * * So it’s a technicality, but if you want to
       ride on that technicality, you can ride it all the way to East Cleveland jail.

       {¶6}    The court then imposed a second sentence of 150 days of incarceration. Oke

filed a motion for bond, but the trial court sua sponte converted it to a motion to “mitigate

sentence,” and denied it, then ordered an additional hearing one week later to “revisit” the issue

of mitigation of sentence.    This court granted an appellate bond on October 23, 2017, or

approximately three weeks after the expiration of the ten-day sentence originally imposed.

                                        Double Jeopardy

       {¶7}    Oke asserts that the trial court violated the prohibition against double jeopardy

when it sentenced him to ten days of incarceration on September 7, 2017, then imposed a second

sentence of 150 days on September 13, 2017.

       {¶8}    The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution protects against the imposition of multiple criminal punishments for the same

offense. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 16, citing

Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), and State v.
Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 24. The double jeopardy

protection applies to Ohio citizens through the Fourteenth Amendment to the United States

Constitution and is also guaranteed by Article I, Section 10 of the Ohio Constitution. State v.

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10.

       {¶9} We recognize that courts have held that there is no double jeopardy violation where

a trial court imposes sentence for a “deferred judgment violation” such as a positive drug test,

and later imposes a sentence on the underlying offense. See People v. Lopez, 97 P.3d 223

(Colo.App.Div.A 2004); Doyle v. State, 2009 Ark.App. 94, 302 S.W.3d 607 (Div.2).

       {¶10} The record in this matter indicates that on September13, 2017, the trial court

imposed a ten-day sentence, and stated that this is “a gift because I could be giving you six

months * * * ten days then you can go on about your business.” This sentence was clearly a

sentence for the underlying offense and not simply a deferred judgment violation. However, one

week later, the court imposed a second sentence of 150 days. Plainly, the court was imposing an

additional, harsher sentence for the same first-degree misdemeanor, despite having already

imposed a ten-day sentence for the offense of drug abuse. In any event, after the court issued the

September 13, 2017 sentence, it returned the matter to East Cleveland, so it is unclear how

jurisdiction was again vested in the drug court for the subsequent sentencing. See State ex rel.

Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 29. Finally, we note

that Oke has completed the ten-day sentence originally imposed by the court.

       {¶11} For all of the foregoing reasons, the assigned error is well taken. The second

sentence was imposed in violation of the prohibition against double jeopardy, and is vacated; the

first sentence is deemed completed and Oke is discharged.

       {¶12} Sentence vacated and defendant discharged.
       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 be sent to the Cleveland 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.




PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH
ATTACHED CONCURRING OPINION


SEAN C. GALLAGHER, J., CONCURRING:

       {¶13} I concur with the majority decision to vacate the imposed sentence, but respectfully

write separately to address concerns about a jurisdictional question that Oke failed to raise on

appeal. Oke focused his challenge solely on double jeopardy grounds. Because the factual

record regarding the transfer process is sparse and we do not have the East Cleveland case on

appeal, I will not sua sponte raise the jeopardy issue to take issue with the lead opinion’s

analysis.   State v. Tate,   140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.2d 888, ¶

21.

       {¶14} Municipal courts in this jurisdiction should nevertheless be vigilant about

jurisdiction. This case originated in East Cleveland. The East Cleveland criminal case is not

before us, and it is not part of this record. Oke appealed the sentence imposed by the Cleveland

drug court, after he was terminated from the program.
       {¶15} Cleveland Municipal Court Loc.R. 4.24 limits those that can participate in the

Cleveland drug court’s program. In this case, Oke entered the program through a referral made

by the probation department of the East Cleveland court as a condition of his community control

supervision imposed in the underlying criminal case. Cleveland M.C. Loc.R. 4.24(C). That

division provides that “persons eligible for the Greater Cleveland Drug Court may enter the

program through three different tracks.” Id. The only track relevant to this case specifically

provides that an eligible person, within criminal cases initiated outside Cleveland Municipal

Court’s territorial jurisdiction, may enter Cleveland’s drug court program through “a referral

from an identified Suburban Court [(in this case East Cleveland)] as a condition of community

control supervision by the probation department of the referring court.” Cleveland M.C. Loc.R.

4.24(C)(3). Thus, it is the probation department that makes the referral to the Cleveland drug

court under that probation department’s obligation to implement the conditions of community

control imposed by the East Cleveland court in the underlying criminal case.

       {¶16} Although we do not have all the facts and circumstances of these events available

to us, and this issue was not directly raised on appeal, it is possible that the East Cleveland court

never relinquished jurisdiction over Oke’s case. The drug court program was initiated as a

condition of the community control sanction imposed by the East Cleveland court. Nothing in

Cleveland’s local rule of court provides the drug court with jurisdiction over the defendant’s

entire case. See, e.g., Cuyahoga C.P. Loc.R. 30.2 (F) (“when a case is transferred to a Drug

Court Docket, the assigned Drug Court Judge shall acquire full jurisdiction over that transferred

case.”) When the drug court terminated Oke from the program, the matter was to be referred

back to the originating court, in this case East Cleveland. Jurisdiction may well have been at
issue, but since it was not raised, I agree with the majority that the sentence imposed by the drug

court must be vacated.
