[Cite as State v. Nash, 2012-Ohio-3246.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       EN BANC
                                       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:          En Banc Court

        RELEASED AND JOURNALIZED:                   July 19, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: James M. Rice
        T. Allan Regas
Assistant County Prosecutors
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} Pursuant to App.R. 26 and Loc.App.R. 26, this court determined that a

conflict existed between the panel’s decision in this case and this court’s previous

decisions on the issue of whether a court sentencing a defendant to community control

sanctions must place the offender under the supervision of the adult probation

department, or whether it has the discretion to determine that supervision is not necessary.

 Accordingly, we sua sponte granted en banc consideration in this matter and convened

an en banc conference in accordance with App.R. 26(A)(2), Loc.App.R. 26(D), and

McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d

672.

       {¶2} The appellant state urges us to follow our precedent, which would require the

trial court to order probation department supervision of every defendant sentenced to a

community control sanction. State v. Eppinger, 8th Dist. No. 92441, 2009-Ohio-5233.

Upon en banc review, we overrule our decision in Eppinger and hold that R.C.

2929.15(A)(2) requires probation department supervision of a defendant placed on

community control sanctions only when there is a condition that must be overseen or a

term during which a defendant’s conduct must be supervised.        Accordingly, we affirm

the trial court’s judgment.

                                             I.

       {¶3} Nash pleaded guilty to one count of drug possession, a fifth degree felony.

The trial court sentenced him to a three-day jail term with credit for three days served and
imposed a $100 fine. The state appealed of right, raising 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.

        {¶4} Our review of trial court sentencing decisions is guided by State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.                Kalish sets forth a two-prong test

that guides our review of felony sentences.              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.

        {¶5} The issue raised by the state in this case was first visited by this court in

Eppinger.1 There, the trial court sentenced the defendant to a 25-day jail term with



        Numerous cases have been reversed and remanded by this court following Eppinger. It has
        1


troubled us to learn through this en banc proceeding that the mandate of this court was either wholly
ignored or not fully complied with in several of the cases.

         In Eppinger itself, for example, the trial court resentenced the defendant to the original 25-day
jail term with credit for 25 days served, waived costs, fines, and assigned counsel fees, but did not
impose probation department supervision. Similarly, in State v. Lee, 8th Dist. No. 92327,
2009-Ohio-5820, the trial court reimposed substantially the same sentence that we had found to be
contrary to law, again failing to place the offender under the probation department’s supervision.
In State v. Becker, 8th Dist. No. 95901, 2011-Ohio-4100, and State v. Ashby, 8th Dist. No. 96119,
credit for 25 days served and a $100 fine.           This court found the sentence contrary to law

under the first prong of Kalish.         We noted 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.

Id. (citing R.C. 2929.15). These sections govern residential sanctions, nonresidential

sanctions, and financial sanctions, respectively.           Id. We held that “[o]ne of the results

of sentencing an offender to community control is supervision of the offender.”                    Id. at ¶

10.   Because the trial court did not sentence Eppinger to “either prison or a community

control [sanction] under the supervision of the probation department,” this court held the

sentence was contrary to law.

        {¶6} The sentence in this case, like the sentence in Eppinger, included a jail term

and a fine.    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



2011-Ohio-5160, the trial court has taken no action after we reversed the sentences imposed as
contrary to law and remanded for further proceedings.

        Although not directly relevant to this case, the state has also pointed out that the trial court has
failed to comply with this court’s directives to obtain a presentence investigation report before
sentencing an offender to community control sanctions. E.g., State v. Pickett, 8th Dist. No.
91343, 2009-Ohio-2127; State v. Disanza, 8th Dist. No. 92375, 2009-Ohio-5364; State v. Peck,
8th Dist. No. 92374, 2009-Ohio-5845.

        The trial court is bound to comply with this court’s mandate; it has no discretion to disregard
our orders. State ex rel. Sharif v. McDonnell, 91 Ohio St.3d 46, 2001-Ohio-240, 741 N.E.2d 127.
Jail, with credit for three days served, and you have to pay a $100 fine.”       We now

believe the Eppinger decision fundamentally misread R.C. 2929.15(A)(2)(a) and

therefore improperly required the trial courts to impose probation department supervision

in every case in which the defendant was sentenced to community control sanctions.

       {¶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 argument that probation department

supervision is an essential element of community control sanctions 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” must 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 is usually

no need to monitor payment of the fine.

      {¶9} 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.’” Eppinger 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.

      {¶10} 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 in sentencing a felony offender.

       {¶11} R.C. 2929.13 provides that a court that imposes sentence on a felony

offender may impose any sanction or combination of sanctions provided in R.C. 2929.14

to 2929.18, but “[t]he sentence shall not impose an unnecessary burden on state or local

government resources.” With the passage of H.B. 86, this same requirement has now

been incorporated into the purposes and principles of felony sentencing under R.C.

2929.11 (although the new provision is not applicable to this offender):

       [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.

       {¶12} 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.2

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

sentencing issue and come to the same conclusion, albeit on somewhat different

reasoning.     In State v. Allen, 9th Dist. Nos. 10CA009910 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. 97CA25, 1997 WL 464788,

(Aug. 15, 1997).

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

prong under Kalish.3

       {¶15} We also find that the trial court did not abuse 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.


        Discretion implies that the trial court has the power to place the offender under probation
       2


department supervision to oversee the payment of a fine, or not, as the circumstances may warrant.
Nothing in this opinion precludes a court from imposing probation department supervision to oversee
the payment of a fine.

         We recognize this court’s recent decision in State v. Cox, 8th Dist. No. 97924,
       3


2012-Ohio-3158. This case is distinguishable from Cox, however, because it is decided under the
law prior to the effective date of H.B. 86.
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.

      {¶16} 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.

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

                                            III.

      {¶18} 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. Case remanded to 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

PATRICIA ANN BLACKMON, A.J.,
FRANK D. CELEBREZZE, JR., J.,
EILEEN A. GALLAGHER, J.,
MARY EILEEN KILBANE, J.,
KATHLEEN ANN KEOUGH, J.,
KENNETH A. ROCCO, J.,
MELODY J. STEWART, J., and
JAMES J. SWEENEY, J., CONCUR;

COLLEEN CONWAY COONEY, J., DISSENTS
WITH SEPARATE OPINION WITH
SEAN C. GALLAGHER, J., and
MARY J. BOYLE, J., CONCURRING;

SEAN C. GALLAGHER, J., DISSENTS
WITH SEPARATE OPINION WITH
COLLEEN CONWAY COONEY, J., and
MARY J. BOYLE, J., CONCURRING


COLLEEN CONWAY COONEY, J., DISSENTING:

      {¶19} I concur in the dissenting opinion of Judge Sean Gallagher and write
separately only to add one point. I would honor stare decisis and follow this court’s

precedent.   If a motion is filed, the remedy is to certify a conflict with the Ninth

District’s decision in State v. Allen, 9th Dist. Nos. 10CA009910 and 10CA009911,

2011-Ohio-3621, on which the majority relies.

       {¶20} I find it ironic that the trial court has not complied with this court’s prior

mandates, and now the en banc majority changes the law in the Eighth District, ultimately

rewarding this noncompliance.


SEAN C. GALLAGHER, J., DISSENTING:

       {¶21} The mere fact that an appellate court would have to interpret whether
supervision is required when a community control sanction is imposed is yet another
blemish on the legacy of sentencing reform brought on by S.B. 2. While I understand
the analytical gymnastics the majority was forced to hurdle to answer this question, and
admire their effort, I respectfully dissent. I would follow our precedent in Eppinger, 8th
Dist. No. 92441, 2009-Ohio-5233. Until the legislature addresses the overly confusing
language in Ohio’s sentencing statutes brought on by S.B. 2, I believe judicial
interpretations of the statute only add to the problems.

       {¶22} R.C. 2929.15 reads in part:

       (2)(a) If a court sentences an offender to any community control sanction or
       combination of community control sanctions authorized pursuant to section
       2929.16, 2929.17, or 2929.18 of the Revised Code, the court shall place the
       offender under the general control and supervision of a department of
       probation * * *. (Emphasis added.)

       {¶23} In this case, part of the sentence was a $100 fine, which even the majority

acknowledges is a community control sanction under R.C. 2929.18.

       {¶24} Thus, because a community control sanction was imposed, probation

supervision was mandatory. If the legislature wanted to exempt fines as community

control sanctions from supervision, it should have said so.
       {¶25} In an apparent effort to allow judicial discretion where probation

supervision would be deemed pointless or wasteful, the majority is forced to creatively

read R.C. 2929.15(A)(2) to include the unwritten presumption that the mandatory

provision is only necessary where there is a condition that must be overseen.            By

reaching deep into the bowels of the Ohio Felony Sentencing Law treatise, Section 109,

the majority reads subsection 3 of that treatise to find supervision, under the

circumstances in this case, to be an “unnecessary burden on governmental resources.”

The majority even references the recent amendment to R.C. 2929.11 through H.B. 86 to

not impose “an unnecessary burden on the state or local government resources,” even

though they acknowledge this provision is not applicable to Nash. Frankly, this creative

interpretation is on a par with some interpretations of the federal tax code.

       {¶26} A big part of this problem seems to center on the fact that the legislature

assumed that, when dealing with felony crimes, judges would impose either a prison term

or a community control sanction or sanctions for felony crimes. The logical assumption

is that because these are felony crimes, the nature of the community control sanctions

would naturally warrant supervision. When, as here, judges look for alternatives to this

approach, a “hole” or “gap” in the statute either exists or is created by the actions of the

trial judge.

       {¶27} Despite numerous passages in R.C. 2929.12, 2929.13, 2929.15, 2929.16,

2929.17, and 2929.18, containing unending preconditions with confusing phrases like

“unless otherwise required,” “except as provided,” and the all too familiar term “if,” there

are no clear provisions for a court to contemplate the type of sentence imposed in this
case. For this reason, I dissent.

       {¶28} If this case stands for anything, it should be a call for the legislature to

revisit the undefinable language of S.B. 2 and finally either fix it once and for all or

assign it to the ash heap of history.
