State v. Smith

Decision Date19 April 1989
Docket NumberNo. 87-843,87-843
Citation537 N.E.2d 198,42 Ohio St.3d 60
PartiesThe STATE of Ohio, Appellant, v. SMITH, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

1. The courts of common pleas do not have inherent power to suspend execution of a sentence in a criminal case and may order such suspension only as authorized by statute. (Municipal Court v. State, ex rel. Platter [1933], 126 Ohio St. 103, 184 N.E. 1, paragraph three of the syllabus, approved and followed.)

2. The unequivocal prohibition contained in R.C. 2951.02(F)(5) precludes the trial court from granting probation where actual incarceration is a mandated aspect of the defendant's sentence.

Appellee, Kenneth K. Smith, was indicted for permitting drug abuse (R.C. 2925.13[A] ) (count one), trafficking in marijuana in an amount equal to or exceeding three times the bulk amount (R.C. 2925.03[A] ) (counts two and three), and one count of trafficking in marijuana in an amount less than the minimum bulk amount (R.C. 2925.03[A] ) (count four).

Smith waived his right to a trial by jury and the case was tried to the court. On September 3, 1985, Smith was found guilty on the second and fourth counts of the indictment, and not guilty on counts one and three. The court sentenced appellee to not less than two nor more than fifteen years at the Ohio State Reformatory on count two, which also carried six months of mandatory incarceration, and a one-year term of incarceration on count four to be served concurrently with the sentence on count two. Both sentences were suspended, and appellee was placed on five years' probation, on the condition that he spend the six months of actual incarceration at the Ohio State Reformatory.

The state of Ohio appealed the sentence imposed, and Smith cross-appealed the conviction itself. The court of appeals affirmed the trial court in all respects. Finding its judgment on the sentencing issue to be in conflict with the judgment of the Court of Appeals for Hamilton County in State v. Ruth (Mar. 16, 1983), Hamilton App. No. C-820355, unreported, the court certified the record of the case to this court for review and final determination.

Lee C. Falke, Pros. Atty., and Carley J. Ingram, Dayton, for appellant.

Rion, Rion & Rion Co., L.P.A., John H. Rion and Mark Stone, Dayton, for appellee.

WRIGHT, Justice.

The state of Ohio asserts that the trial court erred in suspending appellee's sentence and placing him on probation, conditioned upon service of the mandated six months in the Ohio State Reformatory. In the state's view there is no legislative grant of authority empowering the trial court to fashion a suspended sentence of this nature. We agree.

There is no doubt that historically our trial courts have exercised a wide latitude of discretion in suspending prison sentences and authorizing probation. There exists some very early authority that the power to suspend sentences was inherent with the trial courts and could only be impaired by a specific Act of the General Assembly. See Weber v. State (1898), 58 Ohio St. 616, 51 N.E. 116, syllabus. However, this court took a contrary position in Madjorous v. State (1925), 113 Ohio St. 427, 149 N.E. 393, certiorari denied (1926), 270 U.S. 662, 46 S.Ct. 471, 70 L.Ed. 787 In Madjorous, we noted that although the body of the Weber opinion referred to the court's power to suspend sentence as "inherent," that description did not appear in the syllabus law announced therein. Id. at 428, 149 N.E. at 393. Noting that the General Assembly has plenary authority to control the jurisdiction of the courts of common pleas, we endorsed the view expressed in Ex parte United States (1916), 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, which concluded that "the courts do not possess the inherent power to suspend a sentence in a criminal prosecution, * * * [except to stay execution of the sentence pending an appeal or a motion for a new trial]." Madjorous, supra, 113 Ohio St. at 433, 149 N.E. at 394-395.

Accordingly, we must reiterate that the courts of common pleas "do not have the inherent power to suspend execution of a sentence in a criminal case and may order such suspension only as authorized by statute." Municipal Court v. State, ex rel. Platter (1933), 126 Ohio St. 103, 184 N.E. 1, paragraph three of the syllabus. Accord State, ex rel. Gordon, v. Zangerle (1940), 136 Ohio St. 371, 16 O.O. 536, 26 N.E.2d 190, paragraph six of the syllabus; see, also, Lakewood v. Davies (1987), 35 Ohio App.3d 107, 519 N.E.2d 860; State, ex rel. Dallman, v. Court of Common Pleas (1972), 32 Ohio App.2d 102, 61 O.O.2d 97, 288 N.E.2d 303. Moreover, because suspension of sentence is a special statutory procedure, the statutory authority for such suspension must be specific in its terms and must also be strictly construed. State, ex rel. Dallman, v. Court of Common Pleas, supra, paragraph one of the syllabus; State v. Ellington (1987), 36 Ohio App.3d 76, 77, 521 N.E.2d 504, 505.

The state asserts that the trial court erred in imposing sentence for the violation of R.C. 2925.03(A)(7), a felony of the second degree. R.C. 2925.03(E)(3). R.C. 2929.11(A), set forth below in pertinent part, requires the court to sentence a convicted felon to a term of imprisonment:

"Whoever is convicted of or pleads guilty to a felony other than aggravated murder or murder * * * shall be imprisoned for an indefinite term and, in addition, may be fined or required to make restitution, or both. The indefinite term of imprisonment shall consist of a maximum term as provided in this section and a minimum term fixed by the court as provided in this section. * * *."

R.C. 2929.11(B)(5) more specifically provides: "For a felony of the second degree, the minimum term shall be two, three, four, or five years, and the maximum term shall be fifteen years[.]"

Thus, in this case the foregoing statutes require that defendant be sentenced to a term of imprisonment of two, three, four, or five to fifteen years. However, in cases of this nature R.C. 2925.03 additionally requires that the court impose a sentence of actual incarceration of six months:

"(E) If the drug involved is marihuana, whoever violates this section is guilty of trafficking in marihuana.

" * * *

"(3) Where the offender has violated division (A)(7) of this section, trafficking in marihuana is a felony of the second degree and the court shall impose a sentence of actual incarceration of six months and if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a sentence of actual incarceration of one year." (Emphasis added.)

"Actual incarceration" is defined in R.C. 2929.01(C):

" 'Actual incarceration' means that an offender is required to be imprisoned for the stated period of time to which he is sentenced that is specified as a term of actual incarceration. If a person is sentenced to a term of actual incarceration, the court shall not suspend his term of actual incarceration, and shall not grant him probation or shock probation, pursuant to section 2929.51, 2947.061, 2951.02, or 2951.04 of the Revised Code, and the department of rehabilitation and correction or the adult parole authority shall not, pursuant to Chapter 2967. of the Revised Code * * *, grant him * * * parole, emergency parole, or shock parole until after the expiration of his term of actual incarceration * * *." (Emphasis added.)

In compliance with the foregoing statutory provisions, the trial court below sentenced Smith to two-to-fifteen years on count two and imposed six months' actual incarceration. However, the court suspended the sentence on condition that the actual incarceration be served. R.C. 2929.51 grants to the court the general power to suspend execution of sentence and place a defendant on probation:

"(A) At any time after compliance with the procedures contained in division (C) of this section, if compliance with those procedures is required by that division, and before an offender is delivered into the custody of the institution in which he is to serve his sentence; or at any time between the time of sentencing, if compliance with the procedures contained in division (C) of this section is not required by that division, and the time at which an offender is delivered into the custody of the institution in which he is to serve his sentence, when a term of imprisonment for felony is imposed, the court may suspend the sentence and place the offender on probation pursuant to section 2951.02 of the Revised Code. As one of the conditions of probation, the court may require the offender to serve a definite term of imprisonment of not more than six months in a county jail or workhouse, which term may be served in intermittent confinement pursuant to division (D)(3) of this section.

"(B) After an offender is delivered into the custody of the institution in which he is to serve his sentence, when a term of imprisonment for felony is imposed, and during the period prescribed by section 2947.061 of the Revised Code, the court may suspend the balance of the sentence and place the offender on probation pursuant to that section."

While R.C. 2929.51(A) generally authorizes the court to suspend sentences, the state asserts that the defendant herein is specifically precluded from suspension of sentence by R.C. 2951.02(F), which states:

"An offender shall not be placed on probation or otherwise have his 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:

" * * *

"(5) The offender is not eligible for probation or shock probation pursuant to division (C) of section 2903.06 or 2903.07 of the Revised Code or is sentenced to a term of actual incarceration." (Emphasis added.)

Accordingly, the question presented is whether a convicted felon ineligible for probation may nevertheless have his sentence suspended subject only to service of the term...

To continue reading

Request your trial
134 cases
  • Norwood v. Horney
    • United States
    • Ohio Supreme Court
    • July 26, 2006
    ...455, 464, 668 N.E.2d 457, citing Landis v. N. Am. Co. (1936), 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153, and State v. Smith (1989), 42 Ohio St.3d 60, 61, 537 N.E.2d 198; Ethicon, Inc. v. Quigg (Fed. Cir.1988), 849 F.2d 1422, 1426-1427; Michael v. Ghee (N.D.Ohio 2004), 325 F.Supp.2d 829,......
  • State v. Hochhausler
    • United States
    • Ohio Supreme Court
    • July 30, 1996
    ...grant or deny stays. See Landis v. N. Am. Co. (1936), 299 U.S. 248, 254, 57 S.Ct. 163, 166, 81 L.Ed. 153, 158; State v. Smith (1989), 42 Ohio St.3d 60, 61, 537 N.E.2d 198, 200. To the extent that R.C. 4511.191(H) deprives courts of their ability to grant a stay of an administrative license ......
  • State v. Campbell
    • United States
    • Ohio Court of Appeals
    • November 15, 1996
    ...of powers by prohibiting a court from issuing stays of administrative license suspensions. Appellant cites State v. Smith (1989), 42 Ohio St.3d 60, 537 N.E.2d 198, for the proposition that the power to issue stays is an inherent judicial power. Appellant also submits that R.C. 4511.191(H)(1......
  • State v. James Phillips, 99-LW-2713
    • United States
    • Ohio Court of Appeals
    • June 28, 1999
    ... ... That specification required appellant to serve ... three (3) years of actual incarceration. See former ... R.C. 2929.71(A)(2). He was therefore ineligible for ... "shock probation." See former R.C ... 2951.02(F)(5); former R.C. 2929.01(C); also see State v ... Smith (1989), 42 Ohio St.3d 60, 537 N.E.2d 198 at ... paragraph two of the syllabus. There is no dispute between ... the parties on this point.[4] ... What ... is in dispute, however, is whether appellant believed that he ... would be eligible for such probation as ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT