State ex rel. Corrigan v. Court of Common Pleas, 75-553

Decision Date25 February 1976
Docket NumberNo. 75-553,75-553
Citation74 O.O.2d 300,343 N.E.2d 94,45 Ohio St.2d 187
Parties, 74 O.O.2d 300 The STATE ex rel. CORRIGAN, Pros. Atty., Appellee, v. COURT OF COMMON PLEAS, Young, Judge, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

The restrictions upon the granting of probation at the time of sentencing contained in R.C. 2951.02(F) do not limit the discretion of the trial court in granting 'shock probation' pursuant to R.C. 2947.061. (R.C. 2947.061 and R.C. 2951.02(F) construed.)

In April 1974, John Onysko was indicted for allegedly violating R.C. 2903.01, aggravated murder. Onysko entered a plea of not guilty and the case was assigned to Judge Lucien B. Young, appellant herein.

On August 20, 1974, Onysko withdrew his plea of not guilty to the charge of murder and entered a plea of guilty of violating R.C. 2903.03, voluntary manslaughter. He was then sentenced to the Ohio State Penitentiary for a period of not less than four nor more than 25 years.

On October 16, 1974, Onysko filed an application requesting appellant to suspend further execution of his sentence and place him on 'shock' probation pursuant to R.C. 2947.061. In his application, Onysko admitted that he was armed with a firearm during the commission of the offense to which he pled guilty. A hearing was held on the application and, on January 30, 1975, appellant indicated that it was his intention to place Onysko on probation under the terms of R.C. 2947.061.

Consequently, appellee, the prosecuting attorney for Cuyahoga County, filed a complaint for a writ of prohibition in the Court of Appeals, seeking to prohibit appellant from granting shock probation. After overruling appellant's motion to dismiss, the Court of Appeals granted the writ and restrained appellant from placing Onysko on probation.

Appellant appeals to this court as a matter of right.

John T. Corrigan, Pros. Atty., and James J. Sweeney, Cleveland, for appellee.

Gold, Rotatori, Messerman & Hanna and Mr. Gerald A. Messerman, Cleveland, for appellant.

STERN, Justice.

The question presented is whether the proscriptions against probation within R.C. 2951.02(F) extend to the granting of 'shock' or 'delayed' probation pursuant to R.C. 2947.061. 1

R.C. 2951.02, which sets forth the present criteria and conditions for probation, states in subsection (F) that '(a)n offender shall not be placed on probation when any of the following applies:

'(1) The offense involved is aggravated murder or murder.

'(2) The offender is a repeat or dangerous offender as defined in section 2929.01 of the Revised Code.

'(3) The offense was committed while the offender was armed with a firearm or dangerous ordnance as defined in section 2923.11 of the Revised Code.'

In the case at bar, the offender committed an offense while armed with a firearm and, by virtue of R.C. 2951.02 (F)(3), clearly was not eligible for probation at the time of his initial sentencing. However, appellant urges that, by virtue of R.C. 2947.061, he became so eligible, for a limited period, 30 days after his delivery to the custody of a penal institution.

In support of that position, appellant emphasizes that the initial language of R.C. 2947.061, '(s)ubject to sections 2951.03 to 2951.09, inclusive * * *,' does not include R.C. 2951.02. He contends that such exclusion renders the prohibitions against probation within R.C. 2951.02(F) inapplicable to the granting of shock probation.

Prior to adoption of the new Ohio Criminal Code, R.C. 2951.04 specified which offenses were nonprobationary by stating:

'No person convicted of murder, arson, burglary of an inhabited dwelling house, incest, sodomy, rape without consent, assault with intent to rape, or administering poison shall be placed on probation.'

The 'shock probation' statute, R.C. 2947.061, was first enacted in 1965 (131 Ohio Laws 684), and then amended in 1969 (133 Ohio Laws 2493); it was not amended or modified by the adoption of the new Ohio Criminal Code (H.B. 511, effective January 1, 1974). R.C. 2947.061 has always provided that the authority of the trial court to grant shock probation be 'subject to sections 2951.03 to 2951.09, inclusive, of the Revised Code.' This language plainly made shock probation subject to R.C. 2951.04, and therefore shock probation could not be granted for the offenses listed therein.

R.C. 2951.04 was repealed by .h.B. 511, and, at the same time, was replaced by the enactment of subsection (F) to R.C. 2951.02, which prohibits the granting of probation to certain types of offenders. 2

The only apparent legislative purpose served by renumbering R.C. 2951.04 is that the limitations upon the granting of probation are no longer to extend to shock probation. The renumbering plainly places the provisions of R.C. 2951.02 outside the range of those statutes subject to which shock probation may be granted. The logical conclusion is that the General Assembly did intend, by replacing R.C. 2947.061, to permit leaving unchanged R.C. 2947.061, to permit the sentencing court to grant shock probation after actual incarceration of 30 days, even in cases of crimes statutorily designated as nonprobational at the time of sentencing. See Thomas R. Swisher, Report of the Ohio State Bar Foundation, Problems in the Criminal Code, I, 47 Ohio Bar 425, 431 (April 15, 1974).

The Court of Appeals granted the writ of prohibition on the grounds that to adopt the position urged by appellant 'would produce unreasonable and unintended results.' The court noted that certain offenders would be ineligible for probation at the time of sentencing pursuant to R.C. 2951.02(F) and also ineligible for 'shock parole' pursuant to R.C. 2967.31 after serving six months of their sectence, 3 but would nonetheless be eligible for shock probation after serving thirty days of their sentences.

Certainly, this system of sentence modification appears, to a degree, inconsistent. But we do not find it to be contradictory or absurd, nor that it defeats the statutory purpose. Probation generally relates to an action taken before an individual enters a penal institution under sentence; parole relates to an action taken by a legal authority after the individual is incarcerated. The shock probation statute (R.C. 2947.061) is in effect a hybrid of both probation and parole. It is not unreasonable for different standards to be applied to it. Shock probation gives discretion to the sentencing judge, who is personally acquainted with the nature and circumstances of the crime and the character and background of the defendant, to determine in his judgment whether a relatively brief experience of prison life may be sufficient as punishment and as deterrence. The granting of this authority to a trial judge and the granting of a similar but lesser authority to the parole authority is not contradictory, nor are those authorities in any way incompatible. They are wholly independent. Nor is it unreasonable for the General Assembly to provide that for certain offenses the trial judge may not consider the granting of probation until after the offender has experienced prison life. There is a lack of symmetry in these otherwise comparable legislative grants of authority to modify sentences, but not an incompatibility, and that lack of symmetry alone is not sufficient to alter the language of R.C. 2947.061.

The legislative intent might have been more clearly shown by other language, such as that in recently enacted R.C. 2925.01(D), specifically excluding shock probation for certain drug abuse offenses, or that in R.C. 2967.31 with regard to shock parole. But it is a familiar principle that the statutes of criminal law are to be construed strictly in favor of the accused, and it is clear that the letter of the law permits this prisoner to receive the benefit of shock probation. When the General Assembly wrote that shock probation was to be 'subject to sections 2951.03 to 2951.09,' and retained that language while changing the included statutes, we must presume that it intended just that, and did not intend that it also be subject to R.C. 2951.02, as the Court of Appeals held.

Because we find that the trial court did have jurisdiction to consider the granting of shock probation to the appellant, the judgment of the Court of Appeals granting a writ of prohibition must be reversed.

Judgment reversed.

C. WILLIAM O'NEILL, C. J., and J. J. P. CORRIGAN, CELEBREZZE and WILLIAM BROWN, JJ., concur.

HERBERT and PAUL BROWN, JJ., dissent.

WILLIAM B. BROWN, Justice (concurring).

I join with the majority opinion because I do not believe that the General Assembly overlooked the possible inclusion of R.C. 2951.02 within R.C. 2947.061. There are perhaps many arguments for so including it, and the dissenting opinion has noted several. However, those are legislative considerations. Contrary considerations may have convinced the General Assembly to strike a balance to avoid possibly harsh or absurd results.

The position urged by the dissenting opinion makes any offender of any criminal law ineligibel for shock probation, not only if the offender used a weapon to perpetrate the offense, but also if he 'was armed with a firearm or dangerous ordnance as defined in section 2923.11 of the Revised Code.' R.C. 2951.02(F)(3). (Emphasis added.)

The incredibly broad definitions of 'firearm' and 'dangerous ordnance,' set forth in R.C. 2923.11, give to those terms a legal significance which far exceeds their commonly recognized meanings.

In addition, the phrase 'armed with' cannot be readily or universally defined, and this court has not done so. For years it was included in the 'armed robbery' statute, R.C. 2901.13, which read: 'No person, while armed with a pistol knife, or other dangerous weapon * * *.' (Emphasis added.) The present 'armed robbery' statute, R.C. 2911.01, reads: 'No person * * * shall * * * have a deadly weapon * * * on or about his person or under his control * * *.' (Emphasis added.) If the use of new...

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15 cases
  • State v. Brandon
    • United States
    • Ohio Court of Appeals
    • March 12, 1993
    ...discretion of the trial judge in granting 'shock probation' pursuant to R.C. 2947.061(A). State ex rel. Corrigan v. Court of Common Pleas (1976), 45 Ohio St.2d 187 [74 O.O.2d 300, 343 N.E.2d 94]. "After the decision in the Corrigan case the legislature amended the 'shock probation' statute ......
  • State v. Stevens
    • United States
    • Ohio Court of Appeals
    • July 6, 1978
    ...dependent person for the reason that the trial court lacked jurisdiction. The Ohio Supreme Court in State ex rel. Corrigan v. Court of Common Pleas (1976), 45 Ohio St.2d 187, 343 N.E.2d 94, in considering "shock" probation (R.C. 2947.061) set forth the general rule regarding the timing of r......
  • State v. Reid
    • United States
    • Ohio Court of Appeals
    • November 20, 1989
    ...of six months or more will ever be able to obtain probation under R.C. 2947.061(A).7 State, ex rel. Corrigan, v. Court of Common Pleas (1976), 45 Ohio St.2d 187, 74 O.O.2d 300, 343 N.E.2d 94, is not applicable. At the time of that decision R.C. 2947.061 stated that it was subject to R.C. "2......
  • State v. Harris
    • United States
    • Ohio Supreme Court
    • April 7, 1993
    ...court. R.C. 2947.061, 1 which is generally referred to as the "shock probation" statute, see State ex rel. Corrigan v. Court of Common Pleas (1976), 45 Ohio St.2d 187, 74 O.O.2d 300, 343 N.E.2d 94, initially sets forth in subdivision (A) that it is "[s]ubject to sections 2951.02 to 2951.09 ......
  • Request a trial to view additional results
1 books & journal articles
  • The Application of Shock Probation in Judicial Practice
    • United States
    • International Journal of Offender Therapy and Comparative Criminology No. 21-1, January 1977
    • January 1, 1977
    ...Ohio Supreme Court decision relativeto eligibility for Shock Probation. (State, ex. rel. Corrigan, v. Court of Common Pleas (1976), 45 Ohio St. 2d 187.) The article raises the question of whether or not the amount of served is detrimental to the &dquo;rehabilitative spirit of the law&dquo;.......

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