[Cite as State v. Powell, 2019-Ohio-3005.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellant                       :   Appellate Case No. 28108
                                                   :
 v.                                                :   Trial Court Case No. 1985-CR-2210
                                                   :
 DONALD POWELL                                     :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellee                        :
                                                   :

                                              ...........

                                             OPINION

                              Rendered on the 26th day of July, 2019.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

JON PAUL RION, Atty. Reg. No. 0067020 and KEVIN DARNELL, Atty. Reg. No.
0095952, 130 West Second Street, Suite 2150, Dayton, Ohio 45402
     Attorney for Defendant-Appellee

                                             .............
                                                                                          -2-


HALL, J.

       {¶ 1} The State of Ohio appeals from the trial court’s order granting Donald Powell

shock probation under R.C. 2929.201. Powell was not eligible for shock probation, so we

reverse the trial court’s judgment.

                                      I. Shock Probation

       {¶ 2} Before the “sweeping changes” that Am.Sub.S.B. No. 2, 146 Ohio Laws, Part

IV, 7136 (“S.B. 2”) made to Ohio’s felony sentencing laws in 1996, R.C. 2947.061(B)

allowed a court to place a defendant convicted of a first-degree, second-degree, or third-

degree aggravated felony on probation after the offender had served six months of his

prison sentence. State v. Tijerina, 3d Dist. Defiance No. 4-02-01, 2002-Ohio-2979, ¶ 8.

“This ‘shock probation’ existed as a form of what we now refer to as early judicial release.”

Id. R.C. 2947.061(B) provided that, “[s]ubject to sections 2951.02 to 2951.09 of the

Revised Code * * *, the trial court, upon the motion of the defendant, may suspend the

further execution of the defendant’s sentence and place the defendant on probation upon

the terms that * * * the court determines * * *.” But the statute allowed a defendant to file

only one motion for shock probation: “A defendant shall not file more than one motion

pursuant to this division for each sentence imposed upon the defendant * * *.” R.C.

2947.061(B).

       {¶ 3} R.C. 2951.02, to which R.C. 2947.061(B) is subject, governs probation

generally. R.C. 2951.02(F) makes certain offenders ineligible for probation. Pertinent here

are offenders convicted of rape: “An offender shall not be placed on probation and shall

not otherwise have the offender’s sentence of imprisonment suspended pursuant to

division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following
                                                                                          -3-


applies: * * * (4) The offense involved is a violation of section 2907.02 [rape] or 2907.12

[felonious sexual penetration] of the Revised Code.”

          {¶ 4} R.C. 2947.061 was repealed on July 1, 1996, when S.B. 2 went into effect.

But “because the provisions of [S.B. 2] apply only to offenses committed after July 1,

1996, former R.C. 2947.061 is available to those who * * * committed their crimes prior to

this date.” State v. Coffman, 91 Ohio St.3d 125, 126, 742 N.E.2d 644 (2001), citing S.B.

2, Section 5.1

          {¶ 5} In 2014, the legislature enacted R.C. 2929.201. This statute appears to give

offenders who committed their offenses before S.B. 2 went into effect (“old offenders”),

the right to apply for shock probation a second time under R.C. 2947.061. The new statute

states:

          Notwithstanding the time limitation for filing a motion under former section

          2947.061 of the Revised Code, an offender whose offense was committed

          before July 1, 1996, and who otherwise satisfies the eligibility criteria for

          shock probation under that section as it existed immediately prior to July 1,

          1996, may apply to the offender’s sentencing court for shock probation

          under that section on or after September 15, 2014. Not more than one

          motion may be filed by an offender under this section. Division (C) of former

          section 2947.061 of the Revised Code does not apply to a motion filed



1 Section 5 of S.B. 2, as amended, reads: “The provisions of the Revised Code in
existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a
term of imprisonment prior to that date and, notwithstanding division (B) of section 1.58
of the Revised Code, to a person upon whom a court, on or after that date and in
accordance with the law in existence prior to that date, imposes a term of imprisonment
for an offense that was committed prior to that date.”
                                                                                          -4-


       under this section. A presentence investigation report is not required for

       shock probation to be granted by reason of this section.

       {¶ 6} The issue presented in this case is whether an old offender whose prison

sentence includes a term for rape is eligible for shock probation under R.C. 2929.201.

                            II. Facts and Procedural History

       {¶ 7} In 1986, Powell was convicted on one count of kidnapping, five counts of

rape, five counts of gross sexual imposition, and one count of attempted rape. The trial

court imposed an indeterminate prison sentence: 5 to 25 years for kidnapping, 5 to 25

years for each count of rape, 1 year for each count of gross sexual imposition, and 4 to

15 years for attempted rape. The court ordered all the rape sentences to run concurrently

with each other and all gross sexual imposition sentences to run concurrently with each

other. The trial court then ordered Powell to serve the sentences for kidnapping, rape,

gross sexual imposition, and attempted rape consecutively, for an aggregate prison term

of 15 to 65 years. Powell’s convictions were affirmed on appeal, State v. Powell, 2d Dist.

Montgomery No. 9881, 1987 WL 12638 (June 9, 1987), as was his sexual-predator

designation, State v. Powell, 2d Dist. Montgomery No. 18658, 2003-Ohio-1568.

       {¶ 8} In June 2018, Powell filed a motion for shock probation under R.C. 2929.201.

The state opposed the motion, arguing in part that his rape conviction made him ineligible

for shock probation. The trial court granted the motion.2 While the court agreed that an

offender serving a prison sentence for rape was not eligible for shock probation, the court

concluded that Powell had completed his prison term for rape and could be released on


2 In its written decision, the trial court referred to the reasoning in its written decisions
granting Powell’s co-defendant, James Eaton, shock probation. It is that reasoning to
which we refer in this opinion.
                                                                                              -5-


probation for the remainder of his sentence. The trial court later issued a supplemental

decision   in    which   it   went   a   step    further:   the   court   concluded   that   the

eligibility requirements for shock probation in former R.C. 2951.02 did not apply to

offenders who, like Powell, remained incarcerated after July 14, 2014, for offenses

committed before July 1, 1996. In other words, the trial court held that Powell was eligible

for shock probation despite having been convicted of rape.

       {¶ 9} The state appeals.

                                         II. Analysis

       {¶ 10} The sole assignment of error alleges:

                The trial court erred by granting Donald Powell shock probation

       under R.C. 2929.201 because the statute, by its very terms, provides that

       Powell is not eligible for such relief.

       {¶ 11} The state argues that, because of his rape conviction, Powell was not

eligible for shock probation. We agree. Being sentenced to prison for rape makes an

offender ineligible for probation under former R.C. 2951.02, which renders the offender

ineligible for shock probation under former R.C. 2947.061 and therefore ineligible under

R.C. 2929.201.

       {¶ 12} First, the probation criteria in former R.C. 2951.02 do apply to a R.C.

2929.201 application for shock probation. That is, to be eligible for shock probation under

R.C. 2929.201, an offender must satisfy the eligibility criteria for probation under former

R.C. 2951.02.

       {¶ 13} According to the trial court, the “subject to” phrase in former R.C.

2947.061(B) refers to probation statutes that apply only to pre-S.B. 2 sentences. The
                                                                                         -6-


court concluded that the legislature did not intend for courts to apply the provisions in

former R.C. 2951.02(F) after July 14, 2014, pointing out that R.C. 2929.201 does not refer

to former R.C. 2951.02 as a basis for eligibility. An offender did not have to be qualified

for probation at the time of sentencing to apply for shock probation under R.C. 2929.201,

said the court, and requiring otherwise was contrary to the intent of the new statute. In

the court’s view, the intent of the new statute was to give old offenders serving long

indeterminate sentences imposed under pre-S.B. 2 law a way to be released despite the

fact that they may not have qualified for probation at the time of sentencing.

       {¶ 14} Contrary to the trial court, we think that the legislative purpose of R.C.

2929.201 was simply to give certain old offenders another opportunity to apply for shock

probation. Old offenders can still apply for shock probation under former R.C. 2947.061,

but they can do so only once. If an offender, like Powell, applied early and was denied,

he had no second chance—ever. R.C. 2929.201 gave such offenders a second chance.

But the offender still had to satisfy the eligibility criteria under the former law. R.C.

2929.201 incorporated former R.C. 2947.061 and all its eligibility criteria, including R.C.

2951.02. The Ohio Supreme Court has held that “R.C. 2947.061’s language that its

operation is ‘[s]ubject to sections 2951.02 to 2951.09 of the Revised Code’ plainly means

that eligibility for probation under R.C. 2951.02 is a prerequisite to eligibility for shock

probation under R.C. 2947.061.” State v. Bistarkey, 75 Ohio St.3d 7, 661 N.E.2d 167

(1996), syllabus; see also State v. Simon, 87 Ohio St.3d 531, 534, 721 N.E.2d 1041

(2000) (holding that under R.C. 2947.061 “an offender’s eligibility for shock probation is

dependent on the offender’s eligibility for probation”). Furthermore, R.C. 2929.201 itself

assumes that R.C. 2951.02 to 2951.09 apply. R.C. 2929.201 states that “[a] presentence
                                                                                         -7-


investigation [PSI] report is not required for shock probation to be granted by reason of

this section.” Former R.C. 2947.061 says nothing about requiring a PSI report. Rather, it

is former R.C. 2951.03, to which former R.C. 2947.061 is subject, that requires a PSI

report. See State v. Harris, 66 Ohio St.3d 89, 609 N.E.2d 162 (1993), syllabus (“A trial

court is without jurisdiction to rule on a motion for shock probation brought pursuant to

R.C. 2947.061, unless and until a written investigation report has been considered by the

court pursuant to the mandate of former R.C. 2951.03.”). Lastly, we note that the

legislature made it clear that all the provisions of the Revised Code as they existed before

July 1, 1996, apply to an offender sentenced before that date. See S.B. 2, Section 5. For

these reasons, we conclude that to be eligible for shock probation under R.C. 2929.201,

an offender must be eligible for probation under former R.C. 2951.02.

       {¶ 15} Under former R.C. 2951.02, an offender serving a sentence for rape was

never eligible for probation. Former R.C. 2951.02(F)(4) prohibited a court from placing an

offender on probation and suspending the offender’s misdemeanor prison sentence under

R.C. 2929.51(D)(2) or (4) if “the offense involved” was rape. This provision indicated that

the legislature wanted to make offenders who committed certain serious crimes—like

rape—serve their entire aggregate prison sentence before being released. This is

supported by the provision’s prohibition on suspending misdemeanor sentences. By

stating that an offender who committed these serious crimes was also ineligible to have

misdemeanor prison sentences suspended, the statute showed that it was concerned

with an offender’s entire aggregate sentence, not just with the term imposed for the

disqualifying crime. An offender whose prison sentence included a term for rape was

never eligible for probation under former R.C. 2951.02.
                                                                                          -8-

       {¶ 16} The Third District read these statutes the same way in Tijerina, 3d Dist.

Defiance No. 4-02-01, 2002-Ohio-2979. The offender in that case was convicted of one

count of rape, nine counts of sexual battery, and nine counts of corruption of a minor. He

was sentenced to an indeterminate term of eight to twenty-five years in prison. The

appellate court concluded that “R.C. 2951.02(F)(4) expressly prohibited placing on

probation an offender who violates R.C. 2907.02 (Rape) or R.C. 2907.12 (Felonious

Sexual Penetration).” Id. at ¶ 8. “Therefore, due to the nature of his convictions, [the

offender] is not eligible for ‘shock probation’ under the former R.C. 2947.061.” Id.

       {¶ 17} One might argue that Powell’s eligibility should be like that of an offender

who becomes eligible for release under the judicial-release statute after serving the

mandatory part of his sentence and the requisite non-mandatory part. The judicial-release

statute enacted on July 1, 1996, defined “eligible offender” to include a person “sentenced

to a mandatory prison term and another prison term * * * and who has served the

mandatory prison term.” Former R.C. 2929.20(A)(2).3 The argument for Powell’s eligibility

might be convincing if Powell’s concurrent rape sentences were deemed to have been

served first and if one were to conclude that, because he had completed the rape

sentences, he was an eligible offender. But we distinguish offenders who become eligible

for release after serving mandatory time under the judicial-release statute from those who

are sentenced on wholly ineligible offenses. Judicial-release eligibility is statutory. There

is no similar statutory authority from which to conclude that an offender sentenced for

rape becomes an eligible offender after completing the rape sentence.



3 The eligibility time frame “after expiration of all mandatory prison terms” is now codified
in R.C. 2929.20(C).
                                                                                         -9-


                                     III. Conclusion

       {¶ 18} Powell’s prison sentence included a term for rape. Whether he had

completed that term was immaterial to his eligibility for shock probation. He was ineligible

for shock probation, and the trial court therefore erred by granting his motion for shock

probation. The state’s sole assignment of error is sustained.

       {¶ 19} The trial court’s judgment is reversed, and this matter is remanded for

further proceedings.

                                     .............



WELBAUM, P.J. and TUCKER, J., concur.


Copies sent to:

Mathias H. Heck
Andrew T. French
Jon Paul Rion
Kevin Darnell
Hon. Richard Skelton
