State v. Neville

• Decision Date: 17 January 2019
• Docket Number: No. 106885,106885
• Citation: 2019 Ohio 151,128 N.E.3d 937
• Parties: STATE of Ohio, Plaintiff-Appellee v. Joy NEVILLE, Defendant-Appellant
• Court: Ohio Court of Appeals

128 N.E.3d 937

2019 Ohio 151

STATE of Ohio, Plaintiff-Appellee

v.Joy NEVILLE, Defendant-Appellant

No. 106885

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: January 17, 2019

Mark A. Stanton, Cuyahoga County Public Defender, BY: Cullen Sweeney, Assistant Public Defender, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.

Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Amy Venesile, Mary M. Frey, Assistant County Prosecutors, Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.

BEFORE: Boyle, P.J., Blackmon, J., and Jones, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, P.J.:

{¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1.

{¶2} Defendant-appellant, Joy Neville, appeals from a judgment sentencing her to 12 months in prison for violating the terms of her community control sanctions. She raises one assignment of error for our review:

The trial court's twelve-month prison sentence for a technical violation of community control sanctions is contrary to law because it exceeded the 90-day maximum sentence authorized by R.C. 2929.15.

{¶3} Finding no merit to her argument, we affirm.

I. Procedural History

{¶4} In December 2016, Neville and her codefendant were indicted for receiving stolen property. In January 2017, Neville was indicted for drug possession. At a plea hearing in June 2017, the trial court dismissed the charges against Neville for receiving stolen property at the state's request in exchange for Neville pleading guilty to drug possession (less than five grams of crack cocaine) in violation of R.C. 2925.11(A), a fifth-degree felony.

{¶5} The trial court sentenced Neville on July 20, 2017. Defense counsel informed the court that Neville had been struggling with sobriety for 16 years. According to Neville's presentence investigation report ("PSI"), Neville has a lengthy criminal history beginning in 1988 when she was a teenager (although the PSI does not indicate if she was found delinquent of two juvenile charges). As an adult, she has almost 20 convictions for various offenses, including many drug possession or drug abuse charges, theft, aggravated theft, soliciting, aggravated disorderly conduct, and several other minor convictions. Neville's previous convictions were not violent offenses or sex offenses.

{¶6} Defense counsel further informed the court that Neville had mental health issues as well, including "bipolar, PTSD, anxiety, and depression." Defense counsel requested the court to take into consideration the fact that Neville would like "some additional help with her drug usage." Neville also told the court that she had "a drug problem." The trial court sentenced Neville to five years of community control sanctions with the following conditions:

[1.] Defendant to abide by the rules and regulations of the probation department.

[2.] No drugs or alcohol.

[3.] Defendant may not patronize any establishment, event, family function or work anywhere where alcohol or drugs are sold or served.

[4.] Defendant to attend a 12-step meeting every other day for 90 days, defendant to attend a meeting every other day, excluding Sunday, verifiable.

[5.] Defendant to obtain a sponsor by 8-21-17 who is female and has a minimum of 10 years sobriety. Sponsor's name and phone number to be given to probation.

[6.] Defendant to obtain full time employment or 2 part-time jobs by 8-21-17. Employment verified through pay stubs showing all taxes taken out.

[7.] Defendant is not allowed to associate with anyone with a criminal record or with anyone engaging in criminal activities.

[8.] Defendant to pay monthly toward costs, fees and fine. Defendant to pay in equal monthly installments. All financials to be paid in full by 1-20-22.

{¶7} The trial court also suspended Neville's driver's license for five years and imposed a $ 1,000 fine and court costs. The trial court further notified Neville that if she violated the terms and conditions of her community control sanctions that it would sentence her to 12 months in prison.

{¶8} On August 24, 2017, the trial court issued a capias for Neville's arrest "for failure to report to probation after sentencing." Neville was arrested in early November 2017.

{¶9} On November 14, 2017, the court held a community control sanctions violation hearing. Michael Cain of the probation department told the court that Neville admitted that she violated "all of [the] conditions" of her community control sanctions because she failed to report to the probation department after she was sentenced.

{¶10} Neville told the court she was wrong for not complying. She said that when she "got released from here," her "ex was fighting for his life in ICU for 19 days." She explained that she spent a lot of time at the hospital during that time. "And then [she] just got more nervous" to report to the probation department because so much time had passed. Neville asked the court, "[g]ive me prison time, your Honor."

{¶11} The trial court found Neville to be a violator and sentenced her to 12 months in prison. It notified her that once she was released from prison, the probation department may impose up to three years of postrelease control. It also advised her of the consequences that she would face if the probation department gave her postrelease control and she violated the terms of it. It is from this judgment that Neville now appeals.

II. R.C. 2929.15(B)(1)(c)

{¶12} In her sole assignment of error, Neville maintains that the trial court erred when it sentenced her to 12 months in prison because under R.C. 2929.15(B)(1)(c)(i), which went into effect on September 29, 2017, the court could only sentence her to a maximum prison term of 90 days. See Am.Sub.H.B. No. 49. Specifically, Neville argues that failing to report to the probation department is a "technical violation," and thus, the trial court could only sentence her to 90 days in prison under R.C. 2929.15(B)(1)(c)(i). We note at the outset that this issue is one of first impression in this court.¹

{¶13} R.C. 2929.15(B) provides (with the 2017 amendments emphasized):

(1) If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender's probation officer, the sentencing court may impose upon the violator one or more of the following penalties:

(a) [A longer duration of the same community control sanctions provided the total amount does not exceed the maximum five-year limit];

(b) [A more restrictive sanction, including a residential sanction under R.C. 2929.16, community service or house arrest (or many other options) under R.C. 2929.17, or a financial sanction under R.C. 2929.18 ];

(c) A prison term on the offender pursuant to section 2929.14 of the Revised Code and division (B)(3) of this section, provided that a prison term imposed under this division is subject to the following limitations, as applicable:

(i) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fifth degree or for any violation of law committed while under a community control sanction imposed for such a felony that consists of a new criminal offense and that is not a felony, the prison term shall not exceed ninety days.

(ii) [Addresses when a prison term is imposed for a technical violation of the conditions of a community control sanctions imposed for a fourth-degree felony; limits prison to 180 days if merely a technical violation ].

(Emphasis added.)

A. Applicability of R.C. 2929.15(B)(1)(c)(i)

{¶14} The amendments to R.C. 2929.15(B)(1)(c)(i) became effective on September 29, 2017. Neville's community control violations hearing was in November 2017. The state argues that the amendments do not apply to Neville's case. The state maintains that " R.C. 2929.15(B)(1)(c)(i) would have applied when [Neville] violated the terms of her community control sanctions" if the trial court had originally sentenced Neville to just community control sanctions without notifying her that it would send her to prison for 12 months if she violated the terms of her community control, it would impose a sentence of 12 years. We disagree with the state.

{¶15} The plain language of the amended statute shows that it applies to Neville's case. The first part of the statute, R.C. 2929.15(B)(1) (which was exactly the same under the prior version), states: "If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender's probation officer, the sentencing court may impose upon the violator one or more of the following penalties[.]" Subsection (a) provides that one option a court has if an offender violates is the court could extend the duration of the "same" community control sanctions (as long as the court did not already impose the maximum of five years). The second option under subsection (b) states that the court could impose more restrictive sanctions.

{¶16} The third and final option is subsection (c), the subsection at issue in this case, which provides that the court may impose a prison term pursuant to R.C. 2929.14 (which sets forth the minimum and maximum prison sentence a court may impose for different felony levels). This is exactly what R.C. 2929.15(B)(1)(c) stated prior to the H.B. 49 amendments, that is, it ended with this sentence. But under the 2017 amendments, the General Assembly limited a trial court's discretion with respect to the amount of prison time it could impose if offenders violate their conditions of community control.

{¶17} All statutes that relate to the same general subject matter must be read in pari material. Carnes v. Kemp , 104 Ohio St.3d 629, 2004-Ohio-7107, 821 N.E.2d 180, ¶ 16. This means that in construing statutes together, a court must give them "a reasonable construction as...