[Cite as State v. Richmond, 2012-Ohio-3946.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 97531


                                      STATE OF OHIO

                                                     PLAINTIFF-APPELLANT

                                               vs.

                            CHRISTOPHER RICHMOND
                                                     DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED
                                FOR RESENTENCING


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-554731

        BEFORE: Stewart, P.J., Boyle, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                    August 30, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Andrew Rogalski
          T. Allan Regas
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender

BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

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

30 days in county jail and a $200 fine imposed on defendant-appellee, Christopher

Richmond.     For the following reasons, we reverse.

       {¶2} After Richmond pleaded guilty to an amended indictment of harassment by

inmate, a fifth degree felony, the trial court sentenced him to the above-noted sentence with

credit for time served and ordered him to be released.

       {¶3} The state, in its sole assignment of error, argues that because Richmond

pleaded guilty to a fifth degree felony, under Ohio law the trial court is limited to a choice

between sentencing Richmond to one or more community control sanctions or a prison

sentence of 6-12 months. The state contends that Richmond was not placed under a

community control sanction because no presentence investigation report was prepared, and

that 30 days of incarceration in the county jail does not fulfill the statutory minimum term

of imprisonment.    The state complains that the sentence was therefore not authorized by

law and requests this court to reverse and remand for resentencing.

       {¶4} Sentences are reviewed by applying a two-prong test as set forth in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, we must review

whether the trial court complied with all applicable rules and statutes in imposing the

sentence to conclude whether the sentence is contrary to law. Kalish at ¶ 4. If the
sentence is in conformance with the law, we then review the trial court’s decision under an

abuse-of-discretion standard. Id.

       {¶5} We note that a prosecutor was present at Richmond’s sentencing hearing, but

did not object when the trial court sentenced Richmond without the benefit of a presentence

investigation report. Accordingly, the state has waived all but plain error.

       {¶6} In the absence of objection, this court may notice plain errors or defects that

affect substantial rights, pursuant to Crim.R. 52(B). Plain errors are obvious defects in

proceedings due to a deviation from legal rules. State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, 873 N.E.2d 306, ¶ 16.

       {¶7} We have reviewed the record and begin our analysis with determining whether

a sentence that is rendered without the benefit of a statutorily-mandated presentence

investigation report is authorized by law.

       {¶8} R.C. 2951.03(A)(1) states, in pertinent part, that “[n]o person who has been

convicted of or pleaded guilty to a felony shall be placed under a community control

sanction until a written presentence investigation report has been considered by the court.”

See also Crim.R. 32.2 (“[i]n felony cases the court shall * * * order a presentence

investigation and report before imposing community control sanctions or granting

probation”).

       {¶9} This court has previously held that a trial court must order and then review a

presentence investigation report prior to considering the imposition of community control

sanctions. State v. Mitchell, 141 Ohio App.3d 770, 753 N.E.2d 284 (8th Dist.2001),
discretionary appeal not allowed, 92 Ohio St.3d 1443, 751 N.E.2d 482; State v. Ross, 8th

Dist. No. 92461, 2009-Ohio-4720. We have also held that, in the absence of objection, a

trial court’s imposition of community control sanctions before taking into account a

presentence investigation report constitutes plain error. State v. Disanza, 8th Dist. No.

92375, 2009-Ohio-5364; State v. Walker, 8th Dist. No. 90692, 2008-Ohio-5123; State v.

Pickett, 8th Dist. No. 91343, 2009-Ohio-2127.

       {¶10} Similar to the cases cited, in this case, the trial court deviated from the

requirements mandated by law; namely, to obtain and consider a presentence investigation

report prior to ordering a community control sanction. Therefore, we must again reverse

the trial court and order it to comply with the sentencing obligations mandated by law.

       {¶11} The state also asserts that supervision is obligatory when community control

sanctions are imposed. Therefore, the state argues that Richmond’s sentence was not a

valid community control sanction.

       {¶12} When a trial court sentences a defendant to community control sanctions, R.C.

2929.15(A)(2)(a) states that the court:

       [s]hall 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.

       {¶13} Community residential sanctions are a form of community control

sanctions, and the time that Richmond spent in jail constitutes a permissible
community residential sanction under R.C. 2929.16(A)(2). See R.C. 2929.15(A)(1) (“the

court may directly impose a sentence that consists of one or more community control

sanctions authorized pursuant to sections R.C. 2929.16 [residential sanctions] * * *.”) “A

residential sanction that may be

imposed pursuant to R.C. 2929.16 includes a term of up to six months in a

community-based correctional facility or jail.”        State v. Farner, 5th Dist. No.

2011-COA-025, 2012-Ohio-317, ¶ 12.

      {¶14} Financial sanctions also fall within the domain of community control

sanctions. See State v. Bates, 8th Dist. No. 77522, 2000 WL 1643596 (Nov. 2, 2000), at

*1; R.C. 2929.18. Financial sanctions are judgments that may be enforced under R.C.

2929.18 by using a number of statutory proceedings similar to those that a judgment

creditor would employ. See State v. Lopez, 2d Dist. No. 2002CA81, 2003-Ohio-679, ¶ 11.

       {¶15} Richmond’s fine and jail sentence are therefore permissible community

control sanctions. The issue remains, however, whether probation department supervision

is required when a defendant is granted credit for time served and has an outstanding

financial sanction. The state contends that Richmond’s sentence is unquestionably at odds

with the binding language of R.C. 2929.15(A)(2)(a), and that the trial court abused its

discretion when it ignored this required community control sanction condition.

      {¶16} This court recently issued the en banc decision of State v. Nash, 8th Dist. No.

96575, 2012-Ohio-3246, where the majority of the court held that when a defendant is

placed on community control sanctions, probation department 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.” Id. at ¶ 8. In support of our decision, we

referenced the language contained in R.C. 2929.11, noting the broad sentencing discretion

of the trial court, as well as the overriding purposes of felony sentencing, “to punish the

offender using the minimum sanctions * * * without imposing an unnecessary burden on

state or local government resources.” R.C. 2929.11(A). In light of our decision in Nash,

the argument that probation supervision is required is without merit.

       {¶17} This cause is reversed and remanded for proceedings consistent with this

opinion.

       It is ordered that appellant recover of appellee its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas 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.




MELODY J. STEWART, PRESIDING JUDGE

KENNETH A. ROCCO, J., CONCURS;

MARY J. BOYLE, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE OPINION
MARY J. BOYLE, J., CONCURRING IN PART AND DISSENTING IN PART:

       {¶18} Our court recently issued the en banc decision of State v. Nash, 8th Dist. No.

96575, 2012-Ohio-3246, as referenced by the majority in this opinion. Because I joined

the Honorable Judge Sean Gallagher and the Honorable Judge Colleen Conway Cooney in

their dissents in en banc Nash, I likewise dissent in part as it relates to Richmond’s sentence

not being a valid one.

       {¶19} I agree with the majority that a written presentence investigative report is
statutorily mandated to be prepared and considered before a trial court can sentence one to
community control sanctions. Because the trial court failed to do so, as the majority
found, Richmond’s sentence is vacated, as it is not authorized by law. However, I
disagree with the majority that probation supervision is not required and would follow State
v. Eppinger, 8th Dist. No. 92441, 2009-Ohio-5233.
