[Cite as State v. Jones, 2014-Ohio-5705.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellant,           :
                                                        CASE NO. 2014-A-0017
        - vs -                                  :

EDDIE D. JONES,                                 :

                 Defendant-Appellee.            :


Criminal Appeal from the Ashtabula County Court, Eastern District, Case No. 2012
TRC 2026 E.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellant).

Eddie D. Jones, Pro se, 6060 North Ridge West, Ashtabula, OH 44004 (Defendant-
Appellee).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals from the judgment of the

Ashtabula County Court, Eastern District, granting defendant-appellee, Eddie D. Jones’,

Motion for Sentence Modification. The issue to be decided in this case is whether a trial

court errs in ordering a defendant to serve house arrest in lieu of a five day jail sentence

when he reported to jail at least three times and was turned away due to overcrowding.

For the following reasons, we affirm the decision of the lower court.
        {¶2}    On August 7, 2012, a Complaint was filed against Jones, charging him

with Operating a Vehicle While Under the Influence (OVI), a misdemeanor of the first

degree, in violation of R.C. 4511.19(A)(1)(a). In a separate Complaint, filed November

5, 2012, he was charged with OVI, a misdemeanor of the first degree, in violation of

R.C. 4511.19(A)(1)(i). Both arose from an incident occurring on August 4, 2012.

        {¶3}    On December 3, 2012, Jones entered a plea of guilty to one count of OVI,

in violation of R.C. 4511.19(A)(1)(a), and the remaining charge was dismissed. The

parties agreed at the change of plea hearing that this was his second OVI offense in six

years. He was sentenced to a term of 180 days in jail, with 160 days suspended, and

one year of probation. He was also ordered to pay a $600 fine and his driver’s license

was suspended for one year.

        {¶4}    On December 19, 2012, Jones filed a Motion for House Arrest in Lieu of

Incarceration. In a January 2, 2013 Judgment Entry, the court modified its sentence

and ordered Jones to serve 45 days house arrest and five days in jail in lieu of his 20

day sentence.1

        {¶5}    On February 10, 2014, a letter was filed by Jones, stating that he had

been turned away when reporting to jail to serve his sentence and asking to have his jail

time converted to house arrest. Shortly thereafter, a Motion for Sentence Modification

was filed by Jones’ probation officer on his behalf, which noted that Jones had reported

on three dates in 2013 and had not yet served his jail sentence, and requested the

above modification.

        {¶6}    A hearing was held on the Motion on March 25, 2014. At the hearing,

Jones explained that he had completed the ordered house arrest and has reported to

1. The State did not appeal from this modification and does not challenge it in this appeal.


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the jail at least three times for his remaining five day jail sentence, but was turned away

due to overcrowding at the jail.               He explained that this was interfering with his

employment since he had to make special arrangements each time. The court stated

that it would grant the motion and granted the State’s request to stay execution of the

newly imposed house arrest in order to appeal its ruling. Regarding the completion of

the house arrest, the court informed Jones that he would “have to wait” until the ruling

upon appeal.

        {¶7}     On the same date, the trial court filed a Journal Entry, granting the Motion

for Sentence Modification and ordering the following: “Defendant shall do 15 days of

[house arrest] in lieu of 5 days jail to commence within 30 days. Stay granted to April

22, 2014.” The record does not indicate that this sentence has been served.

        {¶8}     The State sought leave to appeal the decision pursuant to Ohio App.R.

5(C).2 This court granted that motion and the appeal was allowed to proceed.

        {¶9}     On appeal, the State raises the following assignment of error:3

        {¶10} “The trial court erred in granting appellee’s sentence modification.”

        {¶11} The State argues that the trial court improperly altered Jones’ sentence to

allow him to serve house arrest instead of a five day jail sentence, since that sentence

was mandatory.

        {¶12} Generally, “[m]isdemeanor sentencing is within the discretion of the trial

court and a sentence will not be disturbed absent an abuse of discretion.” (Citation

2. Pursuant to App.R. 5(C),“[w]hen leave is sought by the prosecution from the court of appeals to appeal
a judgment or order of the trial court, a motion for leave to appeal shall be filed with the court of appeals
within thirty days from the entry of the judgment and order sought to be appealed and shall set forth the
errors that the movant claims occurred in the proceedings of the trial court.” See R.C. 2945.67(A)
(allowing a prosecutor to appeal a decision, other than the “final verdict” of a trial court in a criminal case
“by leave of the court to which the appeal is taken”).
3. Jones did not file an appellee’s brief.



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omitted.) State v. Corbissero, 11th Dist. Ashtabula No. 2011-A-0028, 2012-Ohio-1449,

¶ 53. Misdemeanor sentences cannot be contrary to law or impose penalties that are

outside the statutory authority. See State v. Pope, 9th Dist. Medina No. 13CA0031-M,

2014-Ohio-2864, ¶ 7 (“[u]nless a sentence is contrary to law, we review challenges to

misdemeanor sentencing for an abuse of discretion”) (citation omitted); State v. Ehlert,

11th Dist. Portage No. 2007-P-0032, 2008-Ohio-529, ¶ 13-14.                 See also R.C.

2929.22(A) (“[u]nless a mandatory jail term is required to be imposed * * * a court that

imposes a sentence under this chapter upon an offender for a misdemeanor or minor

misdemeanor has discretion to determine the most effective way to achieve the

purposes and principles of sentencing”).

       {¶13} Several statutes dictate the specific mandatory punishment required for

the OVI conviction in the present case.           Pursuant to R.C. 4511.19(G)(1)(b)(i), an

offender who has been convicted of an OVI within six years of the present offense, and

who is found guilty under division (A)(1)(a), shall be sentenced to “a mandatory jail term

of ten consecutive days.” This is the case unless, “subject to division (G)(3) of this

section, [the trial court] instead imposes a sentence under that division consisting of

both a jail term and a term of house arrest * * *.”

       {¶14} R.C. 4511.19(G)(3) provides that when an offender is sentenced under the

foregoing section and the court finds that, “due to the unavailability of space at the jail

where the offender is required to serve the term, the offender will not be able to begin

serving that term within the sixty-day period following the date of sentencing, the court

may impose an alternative sentence under this division that includes a term of house

arrest * * *.” “As an alternative to a mandatory jail term of ten consecutive days * * *, the




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court, under this division, may sentence the offender to five consecutive days in jail and

not less than eighteen consecutive days of house arrest * * *.” Id.

         {¶15} While the statute mandates that at least five days of consecutive jail time

are required as punishment for the offense committed in this case, the analysis does not

end here. This court must also consider whether the repeated failure for the sentence

to be carried out warrants a reduction or a modification of Jones’ sentence and would

overcome the foregoing statutory mandate.

         {¶16} The trial court expressed its unease with the fact that Jones had reported

to the jail at least three times, had been turned away, and considered how this affected

Jones.     In State v. Zucal, 82 Ohio St.3d 215, 694 N.E.2d 1341 (1998), the Ohio

Supreme Court also expressed concerns regarding the impact jail overcrowding had on

the commencement of offenders’ sentences, noting that the “growing societal problem,

jail overcrowding, * * * has become increasingly difficult to remedy.” Id. at 218. It

further held that an “equitable remedy * * * that balances the criminal offender’s liberty

interests against the state’s interest in the proper administration of justice” was

necessary to prevent “unreasonable, burdensome, and unlawful restriction of

appellant’s freedom” and violations of due process.        Id. at 219.   Based on these

concerns, the court allowed an offender’s sentence to be vacated when there was a

significant delay in execution due to jail overcrowding.       Under Zucal, vacating or

modifying even a mandatory sentence is permissible in the appropriate circumstances.

Id. at 221.

         {¶17} While the Zucal Court held that a sentence not completed within five years

from the time it was imposed is unlawful and must be vacated, it has been held that it “is




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still possible for a delay of less than five years to constitute a violation of due process,

though it depends heavily on the facts specific to a case.” State v. Vince, 7th Dist.

Mahoning No. 08 MA 214, 2009-Ohio-4635, ¶ 18. This is especially true, given that,

while Zucal ruled on the timeframe under which a sentence must be vacated, it did not

specifically state that additional circumstances, such as excessive trips to the jail, could

not also support vacating or modifying an offender’s sentence.

       {¶18} In the present case, although the timeframe during which Jones’ sentence

was ordered and the time it was modified was approximately a year and three months, it

must also be emphasized that he was turned away from the jail at least three times

during that period. This repeatedly interrupted his ability to work, and created “problems

with [his] job,” requiring him to use vacation time and request favors regarding his work

schedule. This delay and constant disruption of Jones’ life is especially concerning

when taking into consideration the fact that his jail sentence was only five days but has

caused many more days worth of inconvenience for him.                  Given the specific

circumstances in this case, we find that the delay impacted Jones’ right to have his

sentence carried out. State v. James, 179 Ohio App.3d 633, 2008-Ohio-6139, 903

N.E.2d 340, ¶ 12 (8th Dist.) (“a delay in execution of sentence may result in a violation

of due process”).

       {¶19} The circumstances of this case also raise concerns related to the Eighth

Amendment to the United States Constitution, which provides that no “cruel and

unusual punishments [may be] inflicted.”         Also Section 9, Article I of the Ohio

Constitution. The jail overcrowding situation which prevented Jones from serving his

sentence and resulted in him being turned away three times is certainly unusual, if not




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cruel, as described above. It has been noted that concerns related to cruel and unusual

punishment resulting from a delay in the execution of the sentence can include

“inconvenience, frustration, inability to plan, and uncertainty, all of which conscript a

defendant’s real freedom during the extended period between pronouncement

and execution of sentence.” (Citation omitted.) State v. Hennessy, 9th Dist. Wayne No.

2813, 1994 Ohio App. LEXIS 504, 3-4 (Feb. 9, 1994).

      {¶20} The State cites State v. Mathia, 11th Dist. Portage No. 92-P-0035, 1992

Ohio App. LEXIS 6217 (Dec. 11, 1992), in support of the proposition that this court has

upheld a trial court’s denial of a motion to vacate a sentence where execution of the

sentence was delayed for three years due to jail overcrowding. In Mathia, this court

affirmed the lower court’s denial of the motion solely based on the failure of the

appellant to provide a record that would support a conclusion to the contrary, rather

than a holding on the merits of the argument that the sentence should be vacated due

to overcrowding, and, therefore, the case does not support the State’s position. Id. at 3-

4. In fact, this court, like the Supreme Court in Zucal, expressed concerns regarding the

impact of a delayed sentence on an offender, noting that “the state’s right to have one

serve declared sentences” must be balanced against “the significantly negative results

that obtain when justice delayed is justice denied because society no longer has the

same level of interest in its execution.” Id. at 6. This court also emphasized that “at

some point in time, the delay can and does become violative of constitutional dictates.”

Id. at 7.   Thus, contrary to the State’s contention, the decision in Mathia actually

supports a conclusion that a delay in enforcing a sentence due to overcrowding can

justify vacating or modifying the sentence, as is the case here.




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       {¶21} Given the foregoing, we cannot find that the trial court erred in modifying

Jones’ jail sentence to house arrest in the interest of protecting his due process and

Eighth Amendment rights.

       {¶22} The sole assignment of error is without merit.

       {¶23} For the foregoing reasons, the judgment of the Ashtabula County Court,

Eastern District, granting Jones’ Motion for Sentence Modification, is affirmed. Costs to

be taxed against the appellant.



COLLEEN MARY O’TOOLE, J., concurs,

CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion



                    _______________________________________




CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.

       {¶24} The majority acknowledges that appellant was statutorily required to serve

five days of consecutive jail time as punishment for his plea to the underlying OVI

charge, pursuant to R.C. 4511.19(G)(3). The majority maintains, however, that the

delay in executing the sentence, due to jail overcrowding, overcomes the statutory

mandate in this case. I respectfully disagree with the majority’s position.

       {¶25} R.C. 4511.19(G)(3) provides, in pertinent part:

              As an alternative to a mandatory jail term of ten consecutive days

              required by division (G)(1)(b)(i) of this section, the court, under this

              division, may sentence the offender to five consecutive days in jail



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             and not less than eighteen consecutive days of house arrest with

             electronic monitoring, with continuous alcohol monitoring, or with

             both electronic monitoring and continuous alcohol monitoring. The

             cumulative total of the five consecutive days in jail and the period of

             house arrest with electronic monitoring, continuous alcohol

             monitoring, or both types of monitoring shall not exceed six months.

             The five consecutive days in jail do not have to be served prior to or

             consecutively to the period of house arrest.

      {¶26} Appellant was sentenced to R.C. 4511.19(G)(1)(b)(i) and the court,

pursuant to appellant’s original motion to modify sentence, modified appellant’s

sentence to 45 days house arrest and five days in jail. Nothing in R.C. 4511.19(G)(3)

indicates the court possesses the discretion, however, to further modify a sentence in

such a way that would completely eliminate the five days of jail time imposed as an

alternative to the original mandatory 10-day term. The trial court’s modification in this

matter was therefore contrary to law.

      {¶27} The majority, however, cites to State v. Zucal, 82 Ohio St.3d 215 (1998),

as a foundation for its position that a court can further modify such a sentence to

eliminate the mandatory, statutory term. In Zucal, the Ohio Supreme Court held that

“[i]n convictions involving misdemeanor offenses, a delay in execution of sentence

resulting from jail overcrowding that exceeds five years from the date that sentence was

imposed is unlawful.” Id. at paragraph one of the syllabus. The court observed that,

although it was not prepared to conclude a delay of more than five years amounts to

cruel and unusual punishment, it maintained such a delay is “an unreasonable,




                                            9
burdensome, and unlawful restriction on [a defendant’s] freedom * * *.” Id. at 219.

Under such circumstances, the Court determined a defendant’s sentence should be

vacated.

      {¶28} The majority points out that Zucal held that a delay of more than five years

is unlawful. The majority consequently notes that a delay of less than five years could

constitute a deprivation of due process justifying a modification. Although I do not take

issue with this point, the circumstances of the delay would have to be extreme. For

instance, in State v. James, 179 Ohio App.3d 633, 2008-Ohio-6139 (8th Dist.), the court

held that a 44-month delay in the execution of a defendant’s sentence was

unreasonable, mainly because the sentence was originally ordered to be served

concurrently to sentences which were in fact served. Id. at ¶13. The court in James

emphasized its ruling was premised upon the unique facts of the case and that neither

society nor the justice system would derive a benefit from enforcing the sentence. Id.

      {¶29} In this matter, appellant faced a delay of 16 months from the imposition of

sentence to the time the court granted his motion to modify his sentence. During this

time, he was turned away three times due to jail overcrowding. While this may have

caused some inconvenience to appellant, I cannot conclude it is so onerous or shocking

to the conscience that it represents “an intolerable affront to fundamental fairness.” See

Brewster v. Sexton, 73 Ohio App.3d 777, 779 (5th Dist.1992) (Fifteen-month delay due

to jail overcrowding was neither cruel and unusual nor a violation of due process); State

v. Durham, 9th Dist. Wayne No. 96CA0013, 1996 Ohio App. LEXIS 5126, *12 (Nov. 20,

1996) (delay of 52 months neither cruel and unusual, nor a violation of due process); c.f.

Zucal, supra (five-year delay violates due process); State v. Hennessy, 9th Dist. Wayne




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No. 2813, 1994 Ohio App. LEXIS 504, *4 (Feb. 9, 1994) (six-year delay violative of

constitutional right to fundamental fairness inherent in the Due Process Clause).

       {¶30} Because I would conclude the 16-month delay does not violate appellant’s

due process right to fundamental fairness, I would reverse the trial court’s decision

modifying appellant’s mandatory jail sentence and remand the matter for the trial court

to reinstate its previous order.

       {¶31} I therefore dissent.




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