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State v. Powell

Court of Appeals of Ohio, Second District, Montgomery

July 26, 2019

STATE OF OHIO Plaintiff-Appellant
v.
DONALD POWELL Defendant-Appellee

          Criminal Appeal from Common Pleas Court Trial Court Case No. 1985-CR-2210

          MATHIAS H. HECK, JR., BY ANDREW T. FRENCH, ATTY. REG. NO. 0069384, MONTGOMERY COUNTY PROSECUTOR'S OFFICE, APPELLATE DIVISION, MONTGOMERY COUNTY COURTS ATTORNEY FOR PLAINTIFF-APPELLANT

          JON PAUL RION, ATTY. REG. NO. 0067020 AND KEVIN DARNELL, ATTY. REG. NO. 0095952, 130 ATTORNEY FOR DEFENDANT-APPELLEE

          OPINION

          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 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 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 ...


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