Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., BY ANDREW T. FRENCH, ATTY. REG. NO.
0069384, MONTGOMERY COUNTY PROSECUTOR'S OFFICE, APPELLATE
DIVISION, MONTGOMERY COUNTY COURTS ATTORNEY FOR
DARNELL, ATTY. REG. NO. 0095952, ATTORNEY FOR
1} The State of Ohio appeals the trial court's
order granting James Eaton shock probation under R.C.
2929.201. Eaton was not eligible for shock probation, so we
reverse the trial court's judgment.
2} Before the "sweeping changes" that
Am.Sub.S.B. 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 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4} R.C. 2947.061 was repealed on July 1, 1996, when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.
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 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.
Facts and Procedural History
7} In 1986, Eaton was convicted on one count of
kidnapping, five counts of rape, five counts of gross sexual
imposition, one count of attempted rape, and one count of
robbery. 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, 4 to 15 years for attempted rape, and 3 to 15
years for robbery. 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
court also ordered the sentences for robbery and attempted
rape to run concurrently. The trial court then ordered Eaton
to serve the sentences for kidnapping, rape, gross sexual
imposition, and robbery/attempted rape consecutively, for an
aggregate prison term of 15 to 65 years. Eaton's