[Cite as State v. Briskey,
2012-Ohio-5340.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 12 MA 63
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
RAYMOND BRISKEY, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown
Municipal Court, Case No. 11TRD3059.
JUDGMENT: Affirmed in part; Reversed in part;
Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Dana Lantz
Prosecuting Attorney
26 South Phelps Street
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney John Ams
134 Westchester Drive
Youngstown, Ohio 44515
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: November 14, 2012
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VUKOVICH, J.
{¶1} Defendant-appellant Raymond Briskey appeals from the sentences
entered in two misdemeanor cases. First, he argues that because the court is
explicitly precluded from imposing jail for an unclassified misdemeanor, the court was
not permitted to impose probation either because the main remedy for a probation
violation is jail time. However, the statutes defining the offenses specifically order the
sentencing court to apply certain sentencing statutes, which contain the option of
probation, and jail is not the only option for a future probation violation. Consequently,
the court was permitted to impose probation as part of its sentence.
{¶2} Next, appellant contends that the court erred by setting a show cause
hearing merely in order to ascertain if he was performing the court-ordered community
service. He posits that if the court erred in setting the hearing, then the court’s setting
of bond in the form of electronic monitoring house arrest (EMHA) was also erroneous.
We conclude that the setting of a status hearing to ensure compliance with the
sentence was permissible, but labeling it a show cause hearing in order to impose
EMHA bond was not.
{¶3} In accordance, the imposition of probation is affirmed. However, the
portion of the sentencing entry setting the case for a show cause hearing is reversed,
and the case is remanded for the trial court to relabel the contempt hearing as a status
hearing and to eliminate the EMHA bond as it represents security for a contempt
hearing set in the absence of any charge of contempt. On remand, the trial court may
consider whether it wishes to impose EMHA as part of appellant’s sentence pursuant
to R.C. 2929.27(A)(2).
STATEMENT OF THE CASE
{¶4} In case number 11TRD3059, appellant was charged with driving under
suspension (DUS) and impeding the flow of traffic. On March 21, 2012, appellant pled
no contest to DUS (financial responsibility) in violation of R.C. 4510.16, and the state
dismissed the other charge. The court imposed a $100 fine and $100 as
reimbursement for community control supervision. The court stated that the financial
sanctions were to be paid by community service, as had been requested by appellant
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at sentencing. Eighty hours of community service were required. The court then
imposed two years of probation, making it a reporting probation until the sanctions
were paid and appellant produced a valid driver’s license. Additionally, the court set
the matter for a May 18, 2012 show cause hearing to determine appellant’s progress
toward his community service obligation and imposed electronic monitoring house
arrest (EMHA) as bond. (Tr. 11).
{¶5} In case number 12TRD689, appellant was charged with DUS, a seatbelt
violation, and a traffic control signal violation. On March 21, 2012, appellant pled no
contest to DUS (failure to reinstate) in violation of R.C. 4510.21, and the state
dismissed the other two charges. The court imposed the same sentence in this case
as it imposed in the other DUS case.
{¶6} Appellant filed a timely notice of appeal, attaching both sentencing
entries. His sentence has been stayed pending appeal.
ASSIGNMENT OF ERROR NUMBER ONE
{¶7} Appellant sets forth two assignments of error, the first of which provides:
{¶8} “THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO
A PERIOD OF PROBATION FOR VIOLATIONS OF UNCLASSIFIED
MISDEMEANORS UNDER REVISED CODE SECTIONS 4510.16 AND 4510.21.”
{¶9} The sentencing court stated that both of appellant’s DUS offenses were
unclassified misdemeanors. See R.C. 4510.16(D)(1); 4510.21(C)(1). Both statutes
contain the following sentencing provisions:
{¶10} “When the offense is an unclassified misdemeanor, the offender shall be
sentenced pursuant to sections 2929.21 to 2929.28 of the Revised Code, except that
the offender shall not be sentenced to a jail term; the offender shall not be sentenced
to a community residential sanction pursuant to section 2929.26 of the Revised Code;
notwithstanding division (A)(2)(a) of section 2929.28 of the Revised Code, the offender
may be fined up to one thousand dollars; and, notwithstanding division (A)(3) of
section 2929.27 of the Revised Code, the offender may be ordered pursuant to
division (C) of that section to serve a term of community service of up to five hundred
hours. The failure of an offender to complete a term of community service imposed by
the court may be punished as indirect criminal contempt under division (A) of section
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2705.02 of the Revised Code that may be filed in the underlying case.” R.C. 4510.16
(D)(1); 4510.21(C)(1).
{¶11} Appellant argues that the maximum sentence for these unclassified
misdemeanors is 500 hours of community service plus a $1,000 fine. He reasons that
since jail time is not permitted, probation is necessarily not permitted because the
court would be unable to impose the final sanction of jail time in the case of probation
violations. See R.C. 2929.25(D)(2) (court options upon probation violation), (a) (longer
term of probation), (b) (more restrictive terms), or (c) (a combination of sanctions
including jail time), (D)(3) (if jail is imposed, the total time cannot exceed the maximum
available jail term for the offense). He notes that the failure to complete community
service can be remedied by indirect contempt as permitted by the aforequoted statutes
and that any failure to pay a fine can be enforced as a judgment under R.C.
2929.28(D).
{¶12} The statutes defining these offenses and characterizing them as
unclassified misdemeanors specifically provide that the court “shall” sentence the
offender pursuant to R.C. 2929.21 through 2929.28. See R.C. 4510.16(D)(1);
4510.21(C)(1). Those cited statutes explicitly contain probation as a permissible
sentencing option for all misdemeanors except minor misdemeanors. For instance,
R.C. 2929.27 lists probation as one of the nonresidential sanctions that a sentencing
court can impose. R.C. 2929.27(A)(5)-(6).
{¶13} Moreover, R.C. 2929.25, provides that in sentencing for a misdemeanor,
other than a minor misdemeanor, the court may impose community control or it may
impose a suspended jail sentence with community control. R.C. 2929.25(A)(1)(a)-(b).
Merely because the second option is eliminated by the unclassified misdemeanor
statutes pertinent to this case does not eliminate the first option.
{¶14} Similarly, upon a probation violation, the court may choose to impose a
longer probation term, make the terms more restrictive, or impose a combination of
sanctions including jail. R.C. 2929.15(A)(3)(a)-(c), (D)(2)(a)-(c). Merely because a
court is unable to exercise all of the parts of the third option upon a probation violation
would not eliminate the court’s discretion to impose probation. The court still has
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power, upon a probation violation, to impose a longer term of probation or to impose
more restrictive terms. R.C. 2929.25(D)(2)(a)-(b).
{¶15} In fact, the sentencing court is expressly provided with the discretion to
determine the most effective ways to achieve the purposes and principles of
misdemeanor sentencing by imposing any sanction provided in R.C. 2929.14 through
2929.28, unless a sanction is specifically required or specifically precluded from being
imposed by the section setting forth the offense. R.C. 2929.21(A). The statute setting
forth the offenses here provides certain exceptions to the sentencing provisions of
R.C. 2929.21 through R.C. 2929.28. R.C. 4510.16(D)(1); 4510.21(C)(1). For
example, the statutes eliminate any right to impose jail and community residential
sanctions. Id. However, they do not eliminate the right to impose probation. As other
sentencing options are specifically excluded, we cannot infer that probation is implicitly
excluded.
{¶16} In fact, the statute cited by appellant in support of his argument that the
court has options besides probation for ensuring his compliance, clearly explains that
the collection remedy for unpaid fines is a supplemental civil remedy that does not
preclude enforcement of the criminal sanctions. R.C. 2929.28(E). In any event, the
fact that there is a collection procedure or the fact that the statutes defining the
offenses provide a contempt remedy for failing to complete community service does
not correlate with the argument that probation is unavailable.
{¶17} And, contrary to appellant’s suggestion, the court did not impose two
years of probation merely to ensure that he completes his community service/pays his
fine; rather, it was made reporting until he finished his service and produced a valid
driver’s license. Moreover, the statute’s reference to 500 hours of community service
and a $1,000 fine are listed merely as exceptions to the standard statutory provisions
that typically allow these amounts only for first degree misdemeanors. See R.C.
2929.27(A)(1)(3) (500 hours for M1, 200 hours for others); R.C. 2929.28(A)(2)(a)(1)
($1,000 fine for M1). Allowing such punishment for these unclassified misdemeanors
does not set the parameters of the entire sentence but merely allows punishment
equivalent to a first degree misdemeanor in these specified categories of sanctions.
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{¶18} Finally, as aforementioned, these amounts are expressly set forth as
exceptions to the general sentencing statutes, and the sentencing court “shall” apply
the general sentencing statutes (which contain the option of probation) to these
unclassified misdemeanors. R.C. 4510.16(D)(1); R.C. 4510.21(C)(1); R.C.
2929.22(A), (C); R.C. 2929.25(A)(1)(a); R.C. 2929.27(A)(5)-(6). Accordingly, this
assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶19} Appellant’s second assignment of error provides:
{¶20} “THE TRIAL COURT ERRED WHEN IT PLACED APPELLANT ON
EMHA BOND AND SET A SHOW CAUSE HEARING WHERE APPELLANT HAD NOT
VIOLATED ANY COURT ORDER.”
{¶21} The trial court explained at the sentencing hearing that the matter was
being set for a show cause hearing to make sure appellant complies with his sentence.
Defense counsel queried, “just so I am clear, this is a show cause in case he doesn’t
complete the community service[?]” The court responded, “We are going to come
back and see if he has done what he is supposed to, if not, he is facing additional
contempt which could means 30 more days in each of the cases. Do you understand
that.” (Tr. 11).
{¶22} The reference to “additional contempt” dealt with the fact that while out
on his bond for the first offense, he violated EMHA and was held in contempt. As he
was sentenced to thirty days in jail on that contempt, the current show cause hearing
and EMHA bond is not related to that prior contempt. Rather, the sentencing entries
for the DUS offenses both contain the order that the case would be set for a show
cause hearing and that his bond pending that hearing would be EMHA.
{¶23} Appellant points out that a show cause hearing is held to ascertain the
validity of a claim that someone is in contempt. See R.C. 2705.03. Appellant argues
that the sentencing court’s setting of a show cause hearing was premature and
improper where there was no allegation that he was in contempt of the sentencing
order. See R.C. 2705.02 (listing the acts that could result in contempt, such as
disobedience of a court order). Appellant states that he is being preemptively
punished with bond in the form of EMHA merely because the court is concerned that
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he may not complete the community service that was ordered that very day. He
concludes that there was no justification for a show cause hearing and thus there was
no justification for bond after sentencing.
{¶24} Appellant’s argument has merit. Appellant is not alleged to have
disobeyed a court order. See R.C. 2705.02(A)(1). Even if he had, a charge in writing
must be filed with the clerk before he can be ordered to appear for the hearing on the
alleged contempt and bond set. See R.C. 2705.03 (charge is filed in writing); R.C.
2705.04 (court can set bond on contempt charge). Here, the court is preemptively
using the contempt framework to ascertain compliance with a sentence.
{¶25} As aforementioned, the court can use indirect criminal contempt under
R.C. 2705.02(A) to punish for failure to complete community service for these
unclassified misdemeanors. R.C. 4510.16(D)(1); R.C. 4510.21(C)(1). Thus, the court
may be permitted to set a future compliance or status hearing to ensure that the
community service sentence was completed. However, unless there is an allegation
and a charge of contempt, the court cannot call the future hearing a show cause
hearing in order to impose bond pending that hearing. This was the day of sentencing;
no contempt for failing to comply with the terms of the sentence could have yet
occurred and was not alleged in any event.
{¶26} The sentencing court could have imposed EMHA as part of his sentence.
See R.C. 2929.27(A)(2). But, it did not do so. Instead it used EMHA as bond pending
a mislabeled “show cause” hearing to ensure compliance with a sentence (without any
allegation of non-compliance).
{¶27} “Bail is security for the appearance of an accused to appear and answer
to a specific criminal or quasi-criminal charge in any court ….” (Emphasis
added). R.C. 2937.22(A). Crim.R. 46(H) provides that the same bond continues until
the verdict or guilty plea and furthers provides: “In the discretion of the court, the
same bond may also continue pending sentence or disposition of the case on review.
Any provision of a bond or similar instrument that is contrary to this rule is void.”
Crim.R. 46(H).
{¶28} This was not a continuation of bond as the prior bond had been revoked,
and appellant had been incarcerated at the time of his sentencing. (Tr. 9). Moreover,
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a final order of sentence was entered, and the bond was not continued for purposes of
disposition of the case on (appellate) review. After sentencing, there was no “specific
criminal or quasi-criminal charge” pending. See R.C. 2937.22(A). Had a contempt
citation issued for failure to complete community service, bond could have been
required to answer for that quasi-criminal charge. R.C. 2705.04; R.C. 2937.22(A).
{¶29} However, there was no allegation of contempt here. Thus, the setting of
a status hearing was permissible, but labeling it a show cause hearing was not. The
labeling error may at first appear harmless in some cases, but the scheduling of a
“show cause” hearing places a false allegation on one’s record, especially where the
court set EMHA bond pending that “show cause” hearing.
{¶30} For the foregoing reasons, the imposition of probation is affirmed.
However, the portion of the sentence setting the case for a show cause hearing is
reversed, and the case is remanded for the trial court to relabel the contempt hearing
as a status hearing and eliminate the EMHA bond as it represents security for a
contempt hearing that had been set in the absence of any charge of contempt. On
remand, the trial court may consider whether it wishes to impose EMHA as part of
appellant’s sentence pursuant to R.C. 2929.27(A)(2).
Donofrio, J., concurs.
Waite, P.J., concurs.
