[Cite as State v. Nash, 2012-Ohio-1188.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96575



                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLANT
                                                 vs.

                                       ANTWAN NASH

                                                             DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-545811

        BEFORE:          Jones, J., Stewart, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                      March 22, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: James M. Rice
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender

BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s judgment

sentencing defendant-appellee, Antwan Nash, to a three-day jail term with credit for three

days served and imposing a $100 fine.       We affirm.

                                                I.

       {¶2} Nash pleaded guilty to one count of drug possession.                 The trial court

sentenced him to a three-day jail term with credit for three days served and imposed a

$100 fine. The state raises the following assignment of error for our review:

       The sentence imposed by the trial court is contrary to law as the trial court

       failed to sentence appellee to a valid sentence of imprisonment or

       community control sanctions, failed to place appellee under supervision,

       and failed to inform appellee of the consequences of appellee’s failure to

       pay the fine or costs.

                                                II.

       {¶3} The issue raised by the state was visited by this court in State v. Eppinger,

8th Dist. No. 92441, 2009-Ohio-5233.1         There, the trial court sentenced the defendant to

a 25-day jail term, with credit for 25 days served.            This court found the sentence

       1
         Accord State v. Ashby, 8th Dist. No. 96119, 2011-Ohio-5160; State v. Murphy, 8th Dist. No.
93093, 2010-Ohio-1422; and State v. Lee, 8th Dist. No. 92327, 2009-Ohio-5820, following Eppinger’s
holding.
contrary to law under the first prong of State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124. Kalish guides our review of felony sentences and

sets forth a two-prong test.    Under the first prong, we review whether the trial court

complied with all applicable rules and statutes to determine if the sentence is clearly and

convincingly contrary to law.     If the first prong is satisfied, then we review the trial

court’s decision under an abuse-of-discretion standard.   Id. at ¶ 4.

       {¶4} In Eppinger, this court found that in sentencing a felony offender, a trial

court has the option of a sentence of imprisonment or a sentence of community control

sanctions.   Id. at ¶ 9, quoting 1 Griffin & Katz, Ohio Felony Sentencing Law, Section

2929.13 at 109 (2006 Ed.).     If a trial court sentences an offender to community control

sanctions, it can impose a sanction authorized under R.C. 2929.16, 2929.17, or 2929.18.

Eppinger at id., citing R.C. 2929.15.      These sections govern residential sanctions,

nonresidential sanctions, and financial sanctions, respectively. Id.

       {¶5} Here, the trial court pronounced sentence against Nash as follows:      “Well,

this is a 2009 case, and it didn’t happen yesterday. You’re sentenced to three days in

County Jail, with credit for three days served, and you have to pay a $100 fine.”

       {¶6} The state contends that the trial court did not sentence Nash to either

imprisonment or community control sanctions. Nash, on the other hand, contends that

the trial court imposed a proper community control sanction.    We agree with Nash.

       {¶7} Jail is a community residential sanction under R.C. 2929.16 and a fine is a

financial sanction under R.C. 2929.18.     The state contends that because the trial court
did not place Nash under the control of the probation department, it did not sentence him

to a community control sanction.    The state’s argument, however, ignores the purpose of

placing a defendant under the supervision of the probation department. In particular,

R.C. 2929.15(A)(2)(a) provides that in sentencing a defendant to community control

sanctions, the sentencing court:

       shall place the offender under the general control and supervision of a
       department of probation in the county that serves the court for the purposes
       of reporting to the court a violation of any condition of the sanctions, any
       condition of release under a community control sanction imposed by the
       court, a violation of law, or the departure of the offender from this state
       without the permission of the court or the offender’s probation officer.
       (Emphasis added.)

       {¶8} The language “shall place the offender under the general control and

supervision of the department of probation” has to be read in conjunction with the

purpose of supervising a defendant on community control: to report a “violation of any

condition of the sanctions, any condition of release under a community control sanction

imposed by the court, a violation of law, or the departure of the offender from this state

without the permission of the court or the offender’s probation officer.” Id. Thus,

supervision is only necessary where there is a condition that must be overseen or a term

during which a defendant’s conduct must be supervised.        If there are no conditions,

there is nothing to supervise.     Further, when a court imposes a fine, it becomes a

judgment against the defendant, enforceable by execution under R.C. 2929.18, and there

would be no need to monitor payment of the fine. There would also be no need for

notification to the defendant under R.C. 2929.19 because there would be no conditions to
his community control sanctions.

       {¶9} In light of the above, we believe that the trial court properly sentenced Nash

to   community control sanctions.     But even if the sentence were not deemed to be a

proper community control sanction, we still believe it was a proper sentence. This

court’s reliance in Eppinger on “sentence of imprisonment” comes from the treatise Ohio

Felony Sentencing Law, Section 2929.13 at 109 (2006 Ed.), not the sentencing statutes.

In Eppinger, this court interpreted “sentence of imprisonment” as only being a prison

sentence.   The word “imprisonment” is not defined in R.C. Chapter 2929, but is defined

in R.C. 1.05 as follows:

       As used in the Revised Code, unless the context otherwise requires,
       “imprisoned” or “imprisonment” means being imprisoned under a sentence
       imposed for an offense or serving a term of imprisonment, prison term, jail
       term, term of local incarceration, or other term under a sentence imposed
       for an offense in an institution under the control of * * * a county * * * [or]
       municipal[ity].

       {¶10} Thus, a jail sentence is a “sentence of imprisonment.”        And under R.C.

2967.191, Nash was entitled to credit for time served.

       {¶11} Additionally, we find this court’s reliance in Eppinger on a portion of a

comment from the Ohio Felony Sentencing Law treatise should be considered in the

context of its accompanying text.      Specifically, Eppinger cited the comment, “‘The

sentencing court has discretion to impose either a sentence of imprisonment or

community control sanctions.’” Id. at ¶ 9, quoting Ohio Felony Sentencing Law at 109.

The full text, which was not cited in Eppinger, provides as follows:
      The sentencing court has discretion to impose either a sentence of
      imprisonment or community control sanctions (1) in accordance with the
      overriding purposes of sentencing — protection of the public and
      punishment of the offender — and (2) after determining the relative
      seriousness of the defendant’s conduct and the likelihood that the defendant
      will commit additional offenses, (3) provided that the sentence does not
      impose an unnecessary burden on governmental resources. (Emphasis
      added; footnotes omitted.) Ohio Felony Sentencing Law at id.

      {¶12} We believe this comment suggests that a trial court has fairly broad

discretion in fashioning sentences.   We find support for this belief in the Revised Code.

R.C. 2929.12(A), governing the factors to be considered in felony sentencing, provides

that “[u]nless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a

court that imposes a sentence under this chapter upon an offender for a felony has

discretion to determine the most effective way to comply with the purposes and principles

of sentencing set forth in section 2929.11 of the Revised Code.”       (Emphasis added.)

Thus, under this section, unless the sentencing court must impose a mandatory sentence,

it has discretion, within the mandates of R.C. 2929.11, 2929.13, and 2929.14, in

sentencing a felony offender.

      R.C. 2929.11(A) provides that:

      [a] court that sentences an offender for a felony shall be guided by the
      overriding purposes of felony sentencing. The overriding purposes of
      felony sentencing are to protect the public from future crime by the
      offender and others and to punish the offender and others and to punish the
      offender using the minimum sanctions that the court determines accomplish
      those purposes without imposing an unnecessary burden on state or local
      government resources.

      {¶13} In light of the above, it may be that, in its discretion, the sentencing court
finds that time served was sufficient “to protect the public from future crime by the

offender and others and to punish the offender,” there is no need for the defendant to be

supervised and monitored, and monitoring payment of a $100 fine would “impose an

unnecessary burden on the state or local government resources.”            Removing that

discretion from a sentencing court could result in the inefficient result of a defendant

having to meet with a probation officer for no reason.   Further, the costs associated with

involving the probation department for the collection of a $100 fine would likely exceed

the cost of the fine.

        {¶14} The Second and Ninth Appellate Districts have also considered this felony

sentencing issue and come to the same conclusion. In State v. Allen, 9th Dist. Nos.

10CA 009910 and 10CA009911, 2011-Ohio-3621, the Ninth Appellate District found

that:

        [i]n some cases the facts do not support a finding under Section
        2929.13(B)(1) [for imposing a prison term], but the sentencing court also
        determines that a community control sanction is inconsistent with the
        purposes and principles of sentencing, thus taking the case outside the
        scope of both 2929.13(B)(2)(a) and (b). In such cases, the court is “not
        compelled * * * to impose a prison sentence or * * * to impose a
        community control sanction. Rather, it [is] within the trial court’s
        judgment to determine, after considering the factors set forth in R.C.
        2929.12, what type of sentence would best serve the overriding purposes
        and principles of sentencing contained in R.C. 2929.11.” Id. at ¶ 10,
        quoting State v. Sutherland, 2d Dist. No. 97CA24.

        {¶15} In light of the above, Nash’s sentence was not contrary to law, the first

prong under Kalish.

        {¶16} We also do not find that the trial court abused its discretion in sentencing
Nash.    An abuse of discretion is more than an error of judgment; it means that the trial

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Nash pleaded guilty to a

fifth degree felony count of drug possession.       The charge resulted from Nash having

Oxycodone in his pocket, which was not prescribed for him.          Prior to this case, and at

the time of sentencing, Nash was working full time and paying child support.          Nash’s

mother had recently passed away and he was “getting [his] life together.”        He was also

supporting his two younger brothers. On this record, the trial court’s sentence was not

an abuse of discretion, the second prong under Kalish.

        {¶17} Finally, the state’s assignment of error implies that costs were assessed to

Nash and the trial court failed to advise him of the consequences of not paying costs.

But costs were waived here. The state also contends that the trial court “failed to notify

Nash of the consequences of his failure to pay his fine as required by R.C.

2929.19(B)(5).”     But as already stated, the fine becomes a judgment against Nash,

enforceable by execution under R.C. 2929.18.

        {¶18} In light of the above, the state’s assignment of error is overruled.

                                             III.

        {¶19} Because we believe our decision here conflicts with Eppinger and its

progeny, under App.R. 26 and Loc.App.R. 26, we ask the administrative judge to submit
this matter to the court for sua sponte2 en banc consideration of the following questions:

(1) whether a sentence to a jail term and fine without conditions and supervision of a

probation department constitutes a community control sanction?            (2) If such a sentence

does not constitute a community control sanction, does a trial court nonetheless have

discretion to impose such a sentence on a felony offender?

      {¶20} Judgment affirmed.

      It is ordered that appellee recover of appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MELODY J. STEWART, P.J., and
EILEEN A. GALLAGHER, J., CONCUR


      2
          DiGiorgio v. Cleveland, 8th Dist. No. 95945, 2011-Ohio-5824, ¶ 1.
