[Cite as State v. Talbert,
2025-Ohio-3116.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2024-T-0081
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
ANTHONY TALBERT,
Trial Court No. 2024 CR 00052
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Decided: September 2, 2025
Judgment: Reversed and remanded
Dennis Watkins, Trumbull County Prosecutor, Ryan J. Sanders and Charles L. Morrow,
Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
Warren, OH 44481 (For Plaintiff-Appellee).
John P. Laczko, John P. Laczko, LLC, City Centre One, Suite 975, 100 East Federal
Street, Youngstown, OH 44503 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Anthony Talbert, appeals the judgment of the Trumbull County
Court of Common Pleas sentencing him to an aggregate prison term of 27 months to be
served consecutively to his sentence in a separate case.
{¶2} Appellant pleaded guilty to Illegal Conveyance of Drugs of Abuse onto
Grounds of Specified Governmental Facility, a fourth-degree felony, and Possession of
Fentanyl-Related Compound, a fifth-degree felony. As part of Appellant’s sentence, the
trial court prohibited him from participating in the Department of Rehabilitation and
Correction’s (“DRC”) transitional control program.
{¶3} Appellant raises a single assignment of error, contending that the trial court
erred by disapproving transitional control at sentencing.
{¶4} Having reviewed the record and the applicable law, we find that Appellant’s
assignment of error has merit. The trial court exceeded its legal authority by prohibiting
Appellant’s participation in the transitional control program. First, transitional control is
not a part of the criminal sentence because it is not a “sanction” that is “imposed by the
sentencing court on an offender.” Second, even if transitional control may be considered
a part of the criminal sentence, the trial court lacked statutory authority to prohibit
Appellant’s participation. Therefore, the portion of the trial court’s judgment prohibiting
Appellant’s participation in the transitional control program is clearly and convincingly
contrary to law.
{¶5} We reverse that portion of the trial court’s judgment and remand for the trial
court to correct its sentencing entry in accordance with this opinion.
Substantive and Procedural History
{¶6} On January 16, 2024, the Trumbull County Grand Jury indicted Appellant
on two felony counts: Count One, Illegal Conveyance of Drugs of Abuse onto Grounds
of Specified Governmental Facility, a third-degree felony in violation of R.C. 2921.36, and
Count Two, Possession of Fentanyl-Related Compound, a fifth-degree felony in violation
of R.C. 2925.11. On January 17, 2024, Appellant was arraigned and pleaded not guilty.
{¶7} On June 10, 2024, the parties entered into a plea agreement in which
Appellant agreed to plead guilty to an amended Count One, Illegal Conveyance of Drugs
of Abuse onto Grounds of Specified Governmental Facility, a fourth-degree felony in
violation of R.C. 2921.36, and Count Two as charged. The trial court held a plea hearing
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at which it engaged in a colloquy with Appellant pursuant to Crim.R. 11. Following the
colloquy, the trial court accepted Appellant’s pleas of guilty and found him guilty. The trial
court ordered a presentence investigation (“PSI”) and set the matter for sentencing.
{¶8} On August 21, 2024, the trial court held a sentencing hearing. The trial
court stated that it had reviewed the PSI, considered the overriding principles and
purposes of felony sentencing, and considered all relevant seriousness and recidivism
factors in R.C. 2929.11 and 2929.12. The trial court found that Appellant “has a history
of criminal convictions” and “is not amenable to any available community control” and that
“a prison sentence is consistent with the purposes and principles of sentencing.” The trial
court further found that Appellant “has served five prior prison sentences, including for
Burglary, a violent offense,” “has been rejected by NEOCAP,” and has “a very high risk
to re-offend” and that “a prison term is proportional to [Appellant’s] conduct and is
consistent with similarly situated Defendants.” The trial court also made consecutive
sentence findings pursuant to R.C. 2929.14(C)(4).
{¶9} The trial court sentenced Appellant to prison terms of 17 months on
amended Count One and 10 months on Count Two, to be served consecutively, for an
aggregate prison term of 27 months. The trial court also ordered Appellant to serve his
sentences consecutively to his sentence in a separate case (Case No. 2024 CR 00271).
The trial court further ordered that Appellant “is not permitted to participate in any
Department of Corrections early release, transitional control, alternative housing
placement, or any other program currently run by the Department of Corrections, or
developed in the future designed to shorten a sentence imposed by this Court.”
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{¶10} On August 30, 2024, the trial court filed its sentencing entry. On October 4,
2024, Appellant filed a motion for leave to file a delayed appeal, which this Court granted
on November 13, 2024. He raises a single assignment of error.
Assignment of Error and Analysis
{¶11} Appellant’s sole assignment of error states: “The trial court erred in
disapproving of transitional control during sentencing and prior to notice from the Adult
Parole Authority.”
{¶12} Appellant states that R.C. 2967.26 allows for the transfer of prisoners to
transitional control during the final 180-days of their confinement. He argues that a trial
court errs when it “prematurely disapproves of transitional control in its [sentencing]
entry,” citing precedent from the Fifth and Second Appellate Districts. The State of Ohio
counters that a trial court is not precluded from denying transitional control during
sentencing, citing precedent from the Twelfth and Fourth Districts.
{¶13} The standard of review for felony sentences is governed by R.C.
2953.08(G)(2), which provides:
The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s
standard of review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
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(b) That the sentence is otherwise contrary to law.
{¶14} Appellant’s assignment of error involves the “otherwise contrary to law”
standard in R.C. 2953.08(G)(2)(b). The Supreme Court of Ohio has defined “contrary to
law” as “‘in violation of statute or legal regulations at a given time.’” State v. Jones, 2020-
Ohio-6729, ¶ 34, quoting Black’s Law Dictionary (6th Ed. 1990). “Clear and convincing
evidence is that measure or degree of proof which is more than a mere ‘preponderance
of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469 (1954), paragraph three of the syllabus.
{¶15} R.C. 2967.26(A)(1) authorizes the DRC to establish, by rule, a transitional
control program to closely monitor an eligible prisoner’s adjustment to community
supervision during the final 180 days of confinement. During this period, eligible prisoners
may be confined in a suitable, licensed facility or in a residence the DRC has approved
for that purpose and monitored by an electronic monitoring device. Id. The DRC
established a transitional control program in Adm.Code Ch. 5120-12.
{¶16} Most relevant here, R.C. 2967.26(A)(2) sets forth a procedure pursuant to
which the trial court may disapprove a prisoner’s transfer to transitional control, as follows:
[1] At least sixty days prior to transferring to transitional control under this
section a prisoner who is serving a definite term of imprisonment or definite
prison term of less than one year for an offense committed on or after July
1, 1996, or who is serving a minimum term of less than one year under a
non-life indefinite prison term, on or after April 4, 2023, the division of parole
and community services of the department of rehabilitation and correction
shall give notice of the pendency of the transfer to transitional control to the
court of common pleas of the county in which the indictment against the
prisoner was found and of the fact that the court may disapprove the transfer
of the prisoner to transitional control and shall include the institutional
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Case No. 2024-T-0081
summary report prepared by the head of the state correctional institution in
which the prisoner is confined. [2] The head of the state correctional
institution in which the prisoner is confined, upon the request of the division
of parole and community services, shall provide to the division for inclusion
in the notice sent to the court under this division an institutional summary
report on the prisoner’s conduct in the institution and in any institution from
which the prisoner may have been transferred. The institutional summary
report shall cover the prisoner’s participation in school, vocational training,
work, treatment, and other rehabilitative activities and any disciplinary
action taken against the prisoner. [3] If the court disapproves of the transfer
of the prisoner to transitional control, the court shall notify the division of the
disapproval within thirty days after receipt of the notice. If the court timely
disapproves the transfer of the prisoner to transitional control, the division
shall not proceed with the transfer. If the court does not timely disapprove
the transfer of the prisoner to transitional control, the division may transfer
the prisoner to transitional control.
{¶17} Ohio appellate courts have disagreed about whether a trial court may
disapprove transitional control at sentencing. The Fifth and Second Districts have
concluded that a trial court may not do so. In State v. Spears, 2011-Ohio-1538 (5th Dist.),
the Fifth District held:
While the statute does not specifically prohibit the court from denying the
transitional control prior to notice, we find to do so clearly thwarts the design
and purpose of the statute. The statute is designed to promote prisoner
rehabilitation effort and good behavior while incarcerated. To prematurely
deny the possibility of transitional control runs contra to those purposes.
While the trial court retains discretion to disapprove the transitional control,
we find to do so in the sentencing entry prior to notice from the adult parole
authority is premature.
Id. at ¶ 37. Accord State v. Oliver, 2011-Ohio-3950, ¶ 4-5 (5th Dist.); State v. Small, 2011-
Ohio-4086, ¶ 61-66 (5th Dist.); State v. Holland,
2011-Ohio-6042, ¶ 4-5 (5th Dist.).
{¶18} Similarly, in State v. Howard, 2010-Ohio-5283 (2d Dist.), the Second District
held that “[a] trial court’s ability to approve or disapprove of transitional control occurs only
after a person has been incarcerated and the adult parole authority sends a notice to the
trial court indicating that it intends to grant transitional control under R.C. 2967.26(A).”
Id.
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at ¶ 2. Therefore, “it is premature for a trial court, at sentencing, to disapprove transitional
control.” State v. Porcher, 2011-Ohio-5976, ¶ 23 (2d Dist.). Accord State v. Longworth,
2011-Ohio-4191, ¶ 27-35 (2d Dist.); State v. Hamby,
2011-Ohio-4542, ¶ 23 (2d Dist.);
State v. Griffie,
2011-Ohio-6704, ¶ 39 (2d Dist.); State v. DeWitt,
2012-Ohio-635, ¶ 24 (2d
Dist.); State v. Bates,
2012-Ohio-6039, ¶ 47 (2d Dist.); State v. Berry,
2014-Ohio-132, ¶
54 (2d Dist.); State v. Chaffin,
2014-Ohio-2671, ¶ 52-54 (2d Dist.); State v. Bailey, 2016-
Ohio-2957, ¶ 10-11 (2d Dist.).
{¶19} The Twelfth and First Districts have reached the opposite conclusion. In
State v. Toennisson, 2011-Ohio-5869 (12th Dist.), the Twelfth District held that “R.C.
2967.26 does not prohibit the absolute denial of transitional control during sentencing,
and . . . such a decision would not be premature.” Id. at ¶ 36. The court reasoned as
follows:
[W]e fail to see how R.C. 2967.26 prohibits the trial court from
predetermining that transitional control is inapplicable during sentencing.
The statutory language does not require the trial court to await a decision
by the adult parole authority in order to pass on transitional control, or, for
that matter, intensive prison programs. Instead, the statute simply grants
an undecided court additional discretion to consider a prisoner’s good
behavior, if and when the adult parole authority files notice and a report.
R.C. 2967.26(A)(2).
Moreover, even when confronted with a prisoner’s good behavior, the trial
court cannot abandon its most important obligation to protect the public
and punish the offender. R.C. 2929.11; R.C. 2929.12. These duties
transcend the trial court’s obligation toward prisoners. Prior to any notice
from the parole authority, a trial court must consider the principles and
purposes of sentencing under R.C. 2929.11, and balance the seriousness
and recidivism factors under R.C. 2929.12. If, during sentencing, the trial
court properly considers these factors in addition to the charges, the
findings set forth in the record, any oral statements, victim impact
statements or presentence investigation reports, etc., then it may clearly
determine that the reasons for its sentence would be defeated by later
granting transitional control.
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Case No. 2024-T-0081
Id. at ¶ 34-35. Accord State v. Bryant, 2012-Ohio-678, ¶ 23-24 (12th Dist.).
{¶20} In State v. Tucker, 2012-Ohio-50 (12th Dist.), the appellant argued that the
trial court’s objection to transitional control at sentencing precluded his opportunity for
rehabilitation. Id. at ¶ 9. The Twelfth District rejected this argument, stating in relevant
part, “In Toennisson, we . . . noted the trial court’s obligation to promote prisoner
rehabilitation was far outweighed by its primary duties to protect the public and punish the
offender” under “R.C. 2929.11” and “2929.12.” Id. at ¶ 11. “Thus, we reject appellant’s
argument as it relates to the overriding significance of his rehabilitation.” Id.
{¶21} In State v. Brown, 2016-Ohio-310 (1st Dist.), the First District reasoned, “it
is undisputed that the trial court has the statutory authority and wide discretion to
disapprove and ultimately block [appellant’s] participation in the [transitional control]
program as part of its sentencing powers.” Id. at ¶ 16. In addition, the appellant “agreed
that he would not be able to participate in this program as a condition of his 12-year prison
term.” Id. Therefore, the court concluded that “R.C. 2967.26 permits the restriction as
part of the sentence under these circumstances.” Accordingly, “this part of [appellant’s]
sentence was authorized by law.” Id.1
{¶22} The issue before us is not whether R.C. 2967.26 expressly precludes the
trial court from disapproving transitional control at sentencing. Rather, the issue is
whether the trial court had legal authority to do so. We conclude that the trial court lacked
such authority.
1. In State v. Riley, 2012-Ohio-1086 (4th Dist.), the Fourth District suggested that the issue was unripe for
appellate review. Id. at ¶ 14. Since a prisoner’s eligibility for transitional control typically cannot be
determined until after incarceration, the court stated it could not determine if the prisoner was prejudiced.
Id. However, the court ultimately determined the issue was moot for other reasons. Id. at ¶ 15. Since the
State has not argued ripeness, we will not discuss it.
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{¶23} We disagree with the Twelfth and First Districts that a trial court’s
disapproval of transitional control is encompassed within its sentencing power. In fact,
transitional control is not a part of the criminal sentence at all. R.C. Ch. 2929 is entitled
“Penalties and Sentencing.” A “sentence” is “the sanction or combination of sanctions
imposed by the sentencing court on an offender who is convicted of or pleads guilty to an
offense.” (Emphasis added.) R.C. 2929.01(EE). A “sanction” is “any penalty imposed
upon an offender who is convicted of or pleads guilty to an offense, as punishment for the
offense” and “includes any sanction imposed pursuant to any provision of [R.C.] 2929.14
to 2929.18 or 2929.24 to 2929.28.” (Emphasis added.) R.C. 2929.01(DD). An “offender”
is “a person who, in this state, is convicted of or pleads guilty to a felony or a
misdemeanor.” R.C. 2929.01(Z).
{¶24} R.C. 2929.19 governs the sentencing hearing for “an offender who was
convicted of or pleaded guilty to a felony.” R.C. 2929.19(A). R.C. 2929.19 addresses
various components of a criminal sentence, including prison terms, R.C. 2929.19(B)(2);
statements for tier III sex offenders/child-victim offenders, R.C. 2929.19(B)(3); community
control sanctions, R.C. 2929.19(B)(4); financial sanctions and fines, R.C. 2929.19(B)(5);
local detention, R.C. 2929.19(B)(6); and mandatory penalties for certain OVI offenders,
R.C. 2929.19(C). Notably, R.C. 2929.19(D) addresses two types of early release
programs, providing that “[t]he sentencing court . . . may recommend placement of the
offender in a program of shock incarceration under [R.C. 5120.031] or an intensive
program prison under [R.C. 5120.032], disapprove placement of the offender in a program
or prison of that nature, or make no recommendation.” R.C. 2929.19 does not reference
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transitional control in any manner. Instead, the statutory definition of “prison term” in R.C.
Ch. 2929 recognizes the possibility of transitional control, providing:
“Prison term” includes either of the following sanctions for an offender:
(a) A stated prison term;
(b) A term in a prison shortened by, or with the approval of, the sentencing
court pursuant to section 2929.143, 2929.20, 5120.031, 5120.032, or
5120.073 of the Revised Code or shortened pursuant to section 2967.26 of
the Revised Code.
(Emphasis added.) R.C. 2929.01(BB)(1).
{¶25} Thus, the possibility of transitional control pursuant to R.C. 2967.26
attaches to a prison term as a matter of law. See State v. Daniel, 2023-Ohio-4035, ¶ 26
(the duty to register as arson offender attaches as a matter of law).
{¶26} R.C. Ch. 2967 is entitled “Pardon; Parole; Probation.” The transitional
control program is set forth in R.C. 2967.26. It refers to the defendant as a “prisoner,”
which means “a person who is in actual confinement in a state correctional institution,”
rather than an “offender.” (Emphasis added.) R.C. 2967.01(H). The DRC administers
the transitional control program pursuant to Adm.Code Ch. 5120-12. “A prisoner placed
into the transitional control program shall retain the status of inmate, but the [DRC] has
the authority to permit the prisoner to leave the facility or residence to which he is
assigned to engage in employment; educational or vocational training; treatment
programming; reestablish and maintain ties with family members; or for other activities
approved by the [DRC].” Adm.Code 5120-12-01(C).
{¶27} The minimum statutory eligibility criteria for the transitional control program
are: (1) if the prisoner is serving a prison term for an offense committed prior to March 17,
1998, the prisoner would have been eligible for a furlough or conditional release under
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prior law; (2) any mandatory prison term must have expired; and (3) the prisoner must not
be serving life imprisonment without parole pursuant to R.C. 2971.03. R.C.
2967.26(A)(1)(a)-(c). The DRC established the following additional eligibility criteria: (1)
the prisoner must not have a record of more than two commitments for certain offenses
of violence; (2) prisoners shall not have a designated security level of level 4 or higher;
(3) prisoners shall not be currently confined in any restrictive housing or extended
restrictive housing as a result of any disciplinary action; (4) prisoners shall not have any
past or current convictions or juvenile adjudications for certain sex offenses, arson, or
aggravated arson; and (5) prisoners shall not have any past or current convictions for
conspiracy or complicity where the underlying offense is prohibited by the rule.
Adm.Code 5120-12-01(F)(1)-(13).
{¶28} “All prisoners shall be screened to determine initial transitional control
eligibility based on the criteria established” above. Adm.Code 5120-12-02(A). “Prisoners
deemed eligible for transitional control consideration shall be interviewed by a unit
manager/designee to receive an explanation of the transitional control program and to
determine if the prisoner desires to be considered for transitional control.” Adm.Code
5120-12-02(B). “An institutional summary report shall be prepared for prisoners desirous
of further consideration.” Id. For “[p]risoners serving a definite sentence,” the adult parole
authority determines eligibility for transfer to transitional control “by means of a review of
the prisoner’s record.” Adm.Code 5120-12-02(D).
{¶29} The separate statutory schemes for felony sentences and transitional
control demonstrate that transitional control is not a “penalty” that is “imposed upon an
offender” as “punishment.” R.C. 2929.01(DD). Therefore, transitional control is not a
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Case No. 2024-T-0081
“sanction . . . imposed by the sentencing court on an offender who . . . pleads guilty to an
offense.” R.C. 2929.01(EE). See Daniel, 2023-Ohio-4035, at ¶ 20-21 (holding that an
arson-offender’s registration duty is not part of the criminal sentence). Rather, transitional
control is a separate program administered by the DRC after an offender is incarcerated.
{¶30} The dissent contends that transitional control is part of the criminal sentence
because it is “an integral part of sentence execution.” (Emphasis added.) Even if
transitional control is part of a sentence’s execution, that does not inform whether
transitional control is a “sanction” that is “imposed by the sentencing court on an offender.”
R.C. 2929.01(EE).
{¶31} The dissent next contends that transitional control is part of the criminal
sentence based on the fact that the definition of “prison term” references transitional
control. The dissent misapprehends the statutory definition. As stated, the possibility of
transitional control pursuant to R.C. 2967.26 attaches to a prison term as a matter of law.
R.C. 2967.26, in turn, governs the circumstances and procedures pursuant to which an
eligible prisoner is transferred to transitional control, if ever.
{¶32} Even if transitional control may be considered a part of the criminal
sentence, the dissent is incorrect in asserting that the trial court has “authority to
determine all aspects” of a sentence. The Supreme Court of Ohio has explained that
“[c]ourts have no inherent discretion with respect to the composition of a criminal
sentence.” (Emphasis added.) Daniel, 2023-Ohio-4035, at ¶ 28. “With respect to criminal
sentencing, the judicial power is the power to impose a sentence authorized by law.” Id.
at ¶ 16. “Yet the judiciary does not possess exclusive control in the realm of criminal
sentencing.” Id. “The power to prescribe the punishment for a crime belongs to the
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legislature.” Id. “The legislature likewise controls ‘the scope of judicial discretion with
respect to a sentence.’” Id., quoting Mistretta v. United States, 488 U.S. 361, 364 (1989).
According to the Court, “It is wholly within the legislative power to determine what
consequences attach to a conviction for a crime—the legislature may grant the court
discretion in selecting from the consequences provided by law, or it may remove the
court’s discretion entirely and mandate certain consequences.” Id. at ¶ 30. “And
executive-branch officials routinely make decisions that affect sentencing exposure and
the duration of the sentence served through the exercise of the prosecutorial, parole, and
pardon powers.” Id. at ¶ 16.
{¶33} Here, Appellant pleaded guilty to two offenses—a fourth-degree felony and
a fifth-degree felony. Therefore, the trial court was authorized to “impose any sanction or
combination of sanctions . . . provided in [R.C.] 2929.14 to 2929.18,” including prison
terms. R.C. 2929.13(A) and (B)(2). However, the DRC is authorized to consider
shortening Appellant’s prison term via the transitional control program. See R.C. 2967.26;
Adm.Code Ch. 5120-12. The trial court is authorized to disapprove a prisoner’s transfer
to transitional control under limited circumstances. As stated, R.C. 2967.26(A)(2)
requires the DRC’s division of parole and community services, “[a]t least sixty days prior
to transferring to transitional control under [R.C. 2967.26] a prisoner who is serving a
definite term of imprisonment or definite prison term of less than one year,” to provide
written notice “to the court of common pleas of the county in which the indictment against
the prisoner was found.” Id. The written notice shall inform the court, among other things,
that the court “may disapprove the transfer of the prisoner to transitional control.” Id. The
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court may disapprove the transfer by notifying the division within 30 days after the court’s
receipt of the notice. Id.
{¶34} The limited circumstances were not present in this case. First, Appellant
was not a “prisoner” at the time of sentencing, i.e., “a person who is in actual confinement
in a state correctional institution.” (Emphasis added.) R.C. 2967.01(H). Rather, Appellant
was facing potential confinement. Second, upon Appellant’s actual confinement, he will
not be serving “a definite prison term of less than one year.” R.C. 2967.26(A)(2). Rather,
Appellant will serve an aggregate definite prison term of 27 months consecutively to his
sentence in a separate case. According to the DRC, “If an individual is recommended by
the Parole Board and serving a sentence of more than [one] year[], the individual is
approved for the [transitional control] program and the Bureau of Community Sanctions
begins the process of placement into a halfway house.” (Emphasis added.)
https://drc.ohio.gov/systems-and-services/1-parole/transitional-control (accessed Apr. 9,
2025). By contrast, “If an individual is recommended but is serving a sentence of [one]
year[] or less, a certified letter of recommendation will be sent to the sentencing judge
who must either approve or veto the individual’s participation in the program.” (Emphasis
added.) Id.2 Third, the division did not send written notice to the trial court. The division
will not even be able to consider Appellant’s eligibility for transitional control until he has
actually been incarcerated.
{¶35} The dissent contends that R.C. 2967.26 “merely establishes one specific
procedure by which the court may disapprove transitional control after the DRC provides
2. The DRC’s website references sentences that are more or less than two years, instead of one year as
the statute provides. However, this discrepancy is most likely explained by the fact that, effective April 4,
2023, the General Assembly reduced the time period from two years to one. See 2022 Am.Sub.S.B. No.
288.
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notice—it does not establish this as the exclusive means for doing so.” However, since
the trial court has no inherent discretion, Daniel, 2023-Ohio-4035, at ¶ 28, then the trial
court may only act pursuant to statute. Since no statute authorizes the trial court to
disapprove transitional control under any other circumstances, then R.C. 2967.26
necessarily provides the exclusive means.
{¶36} Finally, we note the State’s argument that the trial court’s denial of
transitional control at sentencing was warranted based on Appellant’s extensive criminal
history and the court’s duty to the protect the public. The Twelfth District expressed
similar justifications in Tucker, 2012-Ohio-50 (12th Dist.), finding that “the trial court’s
obligation to promote prisoner rehabilitation was far outweighed by its primary duties to
protect the public and punish the offender” under “R.C. 2929.11” and “2929.12.” Id. at ¶
11. The dissent adopts this position, contending that the trial court’s prohibition of
transitional control was justified by its “obligation to protect the public.”
{¶37} The Twelfth District’s discussion of rehabilitation is no longer consistent with
Ohio law. Effective October 29, 2018, the General Assembly revised R.C. 2929.11(A) to
state that the third “overriding purpose[] of felony sentencing” is “to promote the effective
rehabilitation of the offender.” 2018 Am.Sub.S.B. No. 66. R.C. 2929.11(A) provides that
“[a] court that sentences an offender for a felony shall be guided by the overriding
purposes of felony sentencing.” (Emphasis added.) R.C. 2929.11(B) provides that “[a]
sentence imposed for a felony shall be reasonably calculated to achieve the three
overriding purposes of felony sentencing.” (Emphasis added.)
{¶38} Appellant is not serving a life sentence. Therefore, he will eventually be
released into the community. Any improvement to Appellant’s education, vocational
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skills, employability, family ties, and/or community support during his incarceration can
only benefit Appellant and the community he will inevitably rejoin.
{¶39} In sum, the portion of the trial court’s judgment prohibiting Appellant’s
participation in the transitional control program is clearly and convincingly contrary to law.
Accordingly, Appellant’s sole assignment of error has merit. That portion of the trial
court’s judgment is reversed. This case is remanded for the trial court to correct its
sentencing entry in accordance with this opinion.
{¶40} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is reversed and remanded.
SCOTT LYNCH, J., concurs with a Concurring Opinion,
EUGENE A. LUCCI, J., dissents with a Dissenting Opinion.
____________________
SCOTT LYNCH, J., concurs with a Concurring Opinion.
{¶41} I fully agree with the judgment and reasoning of the writing judge that the
sentencing court was without authority to prohibit Talbert from participating in transitional
control as part of his sentence. This is the determinative consideration of this appeal, not
considerations of rehabilitation, criminal history or risk factors. I write separately simply
to emphasize that, regardless of whether Talbert should or should not be allowed to
participate in transitional control, the sentencing court is decidedly without authority to
prohibit him from doing so at sentencing.
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Courts do not have inherent discretion in criminal sentencing composition
{¶42} As duly noted in the majority opinion, the Supreme Court of Ohio has stated
unambiguously that “[c]ourts have no inherent discretion with respect to the composition
of a criminal sentence.” State v. Daniel, 2023-Ohio-4035, ¶ 28. Rather, “[t]he power to
prescribe the punishment for a crime belongs to the legislature” and “[t]he legislature
likewise controls ‘the scope of judicial discretion with respect to a sentence.’” (Citation
omitted.) Id. at ¶ 16. “With respect to criminal sentencing, the judicial power is the power
to impose a sentence authorized by law.” Id. Accordingly, if it could be shown that the
legislature had authorized sentencing courts to prohibit a prisoner from being considered
for transitional control, my vote would be to affirm the lower court in the present case. But
such authority has not been shown and cannot be shown because it does not exist.
{¶43} To say, as does the dissenting opinion as well as other appellate decisions,
that “[n]othing in R.C. 2967.26 expressly prohibits a trial court from disapproving
transitional control at sentencing” is wholly inadequate as justification for the action taken
by the lower court. Unless a statute expressly authorizes a trial court to disapprove
transitional control at sentencing, such action is unauthorized. Courts have no inherent
discretion with respect to the composition of a criminal sentence. Under the nihil obstat
reasoning of the dissent, a sentencing court could just as easily have approved Talbert
to participate in transitional control at sentencing inasmuch as there is nothing in the
statute that expressly prohibits a court from doing so. In fact, since neither action is
actually authorized by law, both are objectionable and beyond the power of the
sentencing court to impose.
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Transitional control is not part of a criminal sentence
{¶44} It is also suggested that transitional control is part of the offender’s sentence
imposed at sentencing. This proposition is also without foundation. The dissent argues
that “transitional control is part of a prison term, which is a sanction, which constitutes the
sentence.” Infra at ¶ 63. The dissent relies on the definition of a “prison term” as including
“[a] term in a prison … shortened pursuant to Section 2967.26 of the Revised Code
[transitional control].” R.C. 2929.01(BB)(1)(b). The reliance is perplexing. A “prison term”
includes a shortened “term in prison,” not the time spent outside of prison on transitional
control. What is not perplexing is that, “if the court imposing a sentence upon an offender
for a felony elects or is required to impose a prison term on the offender …, the court shall
impose a prison term” as provided in R.C. 2929.14(A). And section 2929.14 of the
Revised Code is silent with respect to transitional control.
{¶45} The word “impose” is significant because, while a sentencing court imposes
a prison term, it does not impose transitional control. As noted, the sentencing statute is
silent with respect to transitional control. Rather, transitional control is provided for in
R.C. Ch. 2967 captioned Pardon; Parole; Probation. The relevant statute provides that
“[t]he department of rehabilitation and correction,” not the court, “by rule, may establish a
transitional control program for the purpose of closely monitoring a prisoner’s adjustment
to community supervision during the final one hundred eighty days of the prisoner’s
confinement.” R.C. 2967.26(A)(1). “If the department,” not the court, “establishes a
transitional control program under this division, the division of parole and community
services of the department of rehabilitation and correction,” again not the court, “may
transfer eligible prisoners to transitional control status under the program during the final
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one hundred eighty days of their confinement and under the terms and conditions
established by the department,” not the court, “shall provide for the confinement as
provided in this division of each eligible prisoner so transferred, and shall supervise each
eligible prisoner so transferred in one or more community control sanctions.” Id. Finally,
“the division of parole and community services of the department of rehabilitation and
correction,” not the court, “shall give notice of the pendency of the transfer to transitional
control to the court of common pleas of the county in which the indictment against the
prisoner was found and of the fact that the court may disapprove the transfer of the
prisoner to transitional control and shall include the institutional summary report prepared
by the head of the state correctional institution in which the prisoner is confined.” R.C.
2967.26(A)(2).
The court’s role defined by a plain reading of the statute
{¶46} A plain reading of the transitional control statute makes clear that the role
assigned to the court of common pleas of the county in which the indictment against the
prisoner was found, not the sentencing court, may disapprove a transfer to transitional
control when given notice of the pendency of the transfer. That is the limit of what the
legislature, the branch of government with the power to prescribe punishment for crime
as well as the scope of judicial discretion with respect to a sentence, has authorized the
trial court to do with respect to transitional control. The dissent characterizes this result
as “absurd” and so not what the legislature could have intended. But there is nothing
nonsensical about the way in which the statute is written, rather, the dissent disapproves
of the way in which it is written. That is a judgment, however, which the courts are properly
restrained from making. Youngstown City School Dist. Bd. of Edn. v. State, 2020-Ohio-
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Case No. 2024-T-0081
2903, ¶ 24 (“a court has nothing to do with the policy or wisdom of a statute” which “is the
exclusive concern of the legislative branch of the government”) (citation omitted).
{¶47} The Daniel case is again instructive. In Daniel, the defendant was convicted
of Arson which required the defendant to register as an arsonist annually for life with the
local sheriff. However: “If the sentencing judge ‘receives a request from the prosecutor
and the investigating law enforcement agency to consider limiting the arson offender’s
registration period,’ then the judge may, at the sentencing hearing, limit the offender’s
duty to reregister to a period of ‘not less than ten years.’ R.C. 2909.15(D)(2)(b).” Daniel,
2023-Ohio-4035, at ¶ 4. The defendant challenged the constitutionality of the reduced-
registration provision on the grounds that it violated the separation of powers doctrine,
i.e., “the reduced-registration provision unconstitutionally infringed on the judicial power
to impose a criminal sentence.” Id. at ¶ 8.
{¶48} The Supreme Court rejected the argument in the first instance for the
reason set forth above: “there exists no generalized right to judicial review of discretionary
executive-branch actions.” Id. at ¶ 40. Just as “[a] prosecutor’s decision whether to
recommend a reduced registration period is not a judicial act” but, rather, a “decision [that]
falls within the scope of … executive-branch officials,” just so is the department of
rehabilitation and correction’s decision as to eligibility in a transitional control program.
Id. “In other words, by requiring an executive-branch recommendation,” or, in this case,
notice of eligibility, “the General Assembly ‘merely circumscribes the discretionary power
that it grants to judges to [permit] a reduced registration period.’” (Citation omitted.) Id.
at ¶ 37. Here, the legislature has circumscribed the court’s discretion to disapprove
transitional control to cases in which the department of rehabilitation and correction has
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initiated the transfer. Compare id. at ¶ 38 (“[t]he fact that the legislature has authorized
courts to exercise discretion in cases in which the prosecutor initiates a request does not
require that the courts have the same discretion in every case”).
{¶49} The Supreme Court in Daniel went further and held that the arson
registration requirement is not even part of a criminal sentence. “[T]he duty to register as
an arson offender does not arise by judgment of a court; it attaches as a matter of law. It
is therefore not part of the criminal sentence imposed by the judge.” Id. at ¶ 26. The
important point is that the duty to register is not “imposed” by the sentencing court. The
Supreme Court cites the same definition of a “sentence” as that relied upon by the dissent:
“A ‘sentence’ is ‘the sanction or combination of sanctions imposed by the sentencing court
on an offender who is convicted of or pleads guilty to an offense.’” (Emphasis added by
the Supreme Court.) Id. at ¶ 21, citing R.C. 2929.01(EE). The court concluded that
registration is not “imposed by the sentencing court” because “the court’s role is limited
to notifying a subset of offenders … of the duty to register.” Id. at ¶ 21. The fact that “the
prosecutor and the investigating law-enforcement agency [may] ask the trial court to
reduce the offender’s registration term … does not make the court’s order granting or
denying the request a part of the criminal sentence.” Id. at ¶ 22. If the duty to register as
an arsonist and the sentencing court’s decision (made at sentencing) to reduce the
registration term or not is not part of a criminal sentence, it is difficult to imagine the
approval or disapproval of a transfer to transitional control initiated by officials of the
executive branch is, as claimed by the dissent, “an integral component of the sentencing
framework–not something separate from or outside the court’s sentencing authority.”
Infra at ¶ 67.
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Separation of powers
{¶50} The dissent maintains that the majority’s construction of the statute “raises
serious separation of powers concerns by effectively giving an executive agency (DRC)
the authority to modify a judicially-imposed sentence without meaningful judicial
oversight.” Infra at ¶ 72. The argument is very similar to the one raised by Justice Brunner
in her concurring/dissenting opinion in Daniel: The General Assembly “was free to provide
a sentencing court with discretion to alter the period for which [arson] registration is
required,” but “what it could not do, but did, was provide a court with discretion that the
court can exercise only when the executive branch permits the court to exercise it.” Daniel
at ¶ 59.
{¶51} Assuming, arguendo, that transitional controls were part of an offender’s
sentence (rather than alteration of the conditions in which the sentence is served), the
majority in Daniel effectively refuted the contention there can be no interplay between the
judiciary and the executive branch in the execution of a sentence. “[T]he judiciary does
not possess exclusive control in the realm of criminal sentencing,” rather “‘the sentencing
function long has been a peculiarly shared responsibility among the Branches of
Government and has never been thought of as the exclusive constitutional province of
any one Branch.’” (Citation omitted.) Daniel at ¶ 16. “The legislature … controls ‘the
scope of judicial discretion with respect to a sentence,’ … “[a]nd executive-branch officials
routinely make decisions that affect sentencing exposure and the duration of the sentence
served through the exercise of the prosecutorial, parole, and pardon powers.” (Citation
omitted.)
Id. Contrary to the dissent, there is no “artificial distinction between sentence
imposition and execution” being created.
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Conclusion
{¶52} The foregoing is all that is necessary to dispose of the issue raised on
appeal. The amendment of R.C. 2929.11(A) to include “the effective rehabilitation of the
offender” as one of the purposes of felony sentencing is not dispositive. Compare State
v. Jones, 2020-Ohio-6729, ¶ 42 (“[n]othing in R.C. 2953.08(G)(2) permits an appellate
court to independently weigh the evidence in the record and substitute its judgment for
that of the trial court concerning the sentence that best reflects compliance with R.C.
2929.11 and 2929.12”). Neither is the sentencing court’s “extensive evaluation of the
defendant’s criminal history and risk factors.” The writing judge’s point that the authority
emphasizing these factors is now qualified by amended R.C. 2929.11 is duly noted.
Nonetheless, the issue is simply whether the court was authorized by law to impose, as
part of Talbert’s criminal sentence, that he “is not permitted to participate in any
Department of Rehabilitation and Corrections … transitional control … program.” The
majority opinion properly concludes that the court is not so authorized and, accordingly, I
concur.
____________________
EUGENE A. LUCCI, J., dissents with a Dissenting Opinion.
I. Introduction and Issue Statement
{¶53} I disagree with the lead and concurring opinion’s position. The issue raised
by Talbert, i.e., whether the trial court possesses authority to disapprove of transitional
control at sentencing, should be answered in the affirmative.
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II. Surrounding Points of Law and Policy
{¶54} The lead and concurring opinions fundamentally misunderstand the nature
of transitional control within Ohio’s sentencing framework and inappropriately restrict
judicial authority. By creating an artificial distinction between a sentence and its execution,
the majority seems to disregard that R.C. 2929.01(BB)(1)(b) explicitly includes prison
terms “shortened pursuant to section 2967.26” within the definition of “prison term.” This
disregard improperly delegates judicial sentencing authority to an executive agency and
contradicts the integrated statutory scheme that places transitional control decisions
squarely within the court’s sentencing power.
{¶55} It is undisputed that a sentencing court has authority to disapprove the
transfer of a prisoner to transitional control. R.C. 2967.26(A)(2). The precise question in
this case is whether the sentencing court may exercise this authority at the time of
sentencing3 rather than waiting until after the DRC has completed its extensive
administrative process.
{¶56} Under the majority’s approach, a trial court that determines at sentencing—
based on the defendant’s criminal history, risk factors, and the purposes of sentencing—
that transitional control would be inappropriate must nevertheless remain silent until the
DRC expends significant resources conducting eligibility assessments, arranging
housing, employment, education, programming and supervision, soliciting victim
statements, preparing institutional summary reports, and providing formal notification to
3. Some appellate courts have suggested that objections to transitional control may be “unripe” until after
incarceration and DRC recommendation. See, e.g., State v. Riley, 2012-Ohio-1086, ¶ 14 (4th Dist.).
However, the ripeness doctrine is prudential, not jurisdictional, and here the issue is purely legal: whether
the trial court possessed authority at sentencing. Because the validity of the court’s sentencing entry is not
contingent on future events, the issue is ripe for review.
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Case No. 2024-T-0081
the court. R.C. 2967.26; Adm.Code 5120-12. Only then may the court disapprove what it
could have determined to be inappropriate months earlier.
{¶57} This approach defies both common sense and judicial economy. I would
answer this question in the affirmative: trial courts possess the authority to disapprove
transitional control at sentencing when such disapproval serves the purposes and
principles of felony sentencing.
{¶58} The sentencing process is not a ministerial task limited to reciting statutory
terms; it embodies the court’s obligation to fashion a sentence that fulfills the legislature’s
expressed purposes under R.C. 2929.11 and 2929.12. A trial court’s authority to
determine the manner in which the offender serves a prison term—particularly whether
transitional control should be available—is necessary to achieve the goals of protecting
the public, punishing the offender, and promoting rehabilitation. To deny this authority is
to reduce the judiciary to a passive participant, rather than an active guardian of the
community’s safety and the rule of law.
III. Transitional Control Is an Integral Part of Sentence Execution
{¶59} The statutory and administrative framework of Ohio’s sentencing laws
explicitly integrates transitional control within the definition of a prison term, establishing
it as a component of the court-imposed sentence rather than a separate administrative
procedure. This conclusion derives from both the Ohio Revised Code and the Ohio
Administrative Code provisions.
{¶60} First, R.C. 2929.01(BB)(1)(b) expressly defines “prison term” to include “[a]
term in a prison . . . shortened pursuant to section 2967.26 of the Revised Code.” The
lead opinion ostensibly recognizes but gives no critical attention to this point. Lead
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Case No. 2024-T-0081
Opinion at ¶ 24. The unambiguous inclusion of transitional control within the definition of
“prison term” establishes that when a court imposes a prison term, it is necessarily
imposing a sanction that encompasses the possibility of transitional control.
{¶61} The concurring opinion attempts to dismiss this clear statutory integration
by arguing that a “prison term” includes only the “shortened term in prison,” not “the time
spent outside of prison on transitional control.” Concurring Opinion at ¶ 44. This parsing
misunderstands the fundamental nature of transitional control. As Adm.Code 5120-12-
01(C) explicitly states, prisoners in transitional control “retain the status of inmate”—they
remain confined, albeit in a different location. The concurrence’s artificial distinction
between “time in prison” and “time outside prison” ignores that transitional control is
simply an alternative form of confinement, not freedom from the sentence.
{¶62} Second, R.C. 2929.01(DD) defines “sanction” as “any penalty imposed
upon an offender who is convicted of or pleads guilty to an offense, as punishment for the
offense.” Since a prison term constitutes a sanction, and transitional control is statutorily
incorporated into the definition of “prison term,” it follows that transitional control is part of
the sanction imposed by the court.
{¶63} Third, R.C. 2929.01(EE) defines “sentence” as “the sanction or combination
of sanctions imposed by the sentencing court on an offender . . . .” The logical chain is
clear: transitional control is part of a prison term, which is a sanction, which constitutes
the sentence.
{¶64} The lead and concurring opinions’ interpretation creates an internal
contradiction within the statutory scheme itself. If we accept their view that transitional
control is not part of the sentence because it is not “imposed by the sentencing court,” we
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Case No. 2024-T-0081
must then ask why the legislature explicitly included terms “shortened pursuant to section
2967.26” within the definition of “prison term” in R.C. 2929.01(BB)(1)(b). The lead and
concurring opinions offer no satisfactory explanation for this inconsistency. Under basic
principles of statutory construction, we must interpret statutes to avoid such contradictions
and give effect to all provisions.
{¶65} The Ohio Administrative Code further confirms this understanding.
Adm.Code 5120-12-01(C) explicitly states that “[a] prisoner placed into the transitional
control program shall retain the status of inmate. . . .” This provision demonstrates that
transitional control merely changes the location where the inmate serves the final portion
of the court-imposed sentence, not the legal nature of that sentence. The inmate remains
under the court’s sentence, merely serving it in a different environment.
{¶66} Moreover, in an effort to support its position, the lead opinion stresses that
R.C. 2967.26, the provision governing transitional control, is enveloped within R.C. Ch.
2967 which is entitled “Pardon; Parole; Probation.” Lead Opinion at ¶ 26. The lead opinion
then points out that R.C. 2967.26 refers to a defendant as a “prisoner” which is defined
under that chapter as “a person who is in actual confinement in a state correctional
institution.” (Emphasis added.) Lead Opinion at ¶ 26. In an effort to buttress its position
that the trial court lacks the authority to deny transitional control at sentencing, the lead
opinion contrasts this definition with the term “offender,” i.e., one who is before a trial court
at a sentencing hearing after being convicted of or pleading guilty to a felony. Id. at ¶ 26
and 24, respectively. This distinction is not meaningful. Although R.C. Ch. 2967
addresses “prisoners,” those “actually confined,” this does not imply the nature of
transitional control cannot be or is not part of a criminal sentence. Referring to the
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Case No. 2024-T-0081
individuals subject to transitional control as prisoners merely recognizes the obvious;
namely, that actual confinement is a necessary (but not a sufficient) condition of eligibility
to participate in a program that is part of a criminal sentence.
{¶67} The lead and concurring opinions’ attempt to separate transitional control
from the court-imposed sentence creates an artificial distinction between a sentence and
its execution. While the Department of Rehabilitation and Correction administers
transitional control, it fundamentally remains a method of serving the court-imposed
prison term. The legislative decision to specifically include terms “shortened pursuant to
section 2967.26” within the definition of “prison term” demonstrates the legislature’s clear
intent to make transitional control an integral component of the sentencing framework—
not something separate from or outside the court’s sentencing authority.
{¶68} Since transitional control is part of the sentence imposed by the court, the
trial court necessarily retains authority to determine all aspects of that sentence, including
whether transitional control should be available in a particular case.
IV. The Concurrence’s “Nihil Obstat” Mischaracterization
{¶69} The concurring opinion characterizes my position as “nihil obstat”
reasoning—that courts may act simply because nothing prohibits them from doing so.
This fundamentally misrepresents the argument. I do not contend that courts have
unlimited authority to act absent express prohibition. Rather, I argue that when the
legislature explicitly includes transitional control within the definition of “prison term,” and
prison terms are expressly within the court's sentencing authority, the court necessarily
possesses authority over all aspects of that prison term, including transitional control.
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Case No. 2024-T-0081
{¶70} The concurrence’s own logic proves too much. If we accept that courts lack
authority absent express statutory authorization, then courts could not make numerous
routine sentencing determinations, such as ordering consecutive rather than concurrent
sentences when multiple cases are involved.
V. Trial Courts Possess Authority to Make Sentencing Determinations
{¶71} The Supreme Court of Ohio’s decision in State v. Daniel, 2023-Ohio-4035,4
cited by the lead and concurring opinions, actually supports the trial court’s authority.
While Daniel establishes that courts “have no inherent discretion with respect to the
composition of a criminal sentence,” it also recognizes that courts have the power “to
impose a sentence authorized by law.”
Daniel at ¶ 16, 28.
As Justice Fischer emphasized in his dissent in Daniel:
[T]he General Assembly may not “delegate to the executive
branch of government the power to exercise judicial authority.”
[State v.] Sterling, 113 Ohio St.3d 255,
2007-Ohio-1790,
864
N.E.2d 630, at ¶ 34. And in both Sterling and [State ex rel.]
Bray[ v. Russell], 89 Ohio St.3d 132,
729 N.E.2d 359, this
court stated that the sentencing of an offender is solely within
the province of the judiciary. Sterling at ¶ 31; Bray at 136, 729
N.E.2d 359.
Daniel at ¶ 81 (Fischer, J., dissenting).
{¶72} The majority’s interpretation raises serious separation of powers concerns
by effectively giving an executive agency (DRC) the authority to modify a judicially-
imposed sentence without meaningful judicial oversight. By the time a court receives
notice of potential transitional control under the majority’s approach, significant resources
4. Unlike transitional control, the registration duty at issue in State v. Daniel, 2023-Ohio-4035, arose
automatically by operation of law and was regulatory in nature, not punitive. Transitional control, by contrast,
directly alters the execution of a prison sentence—a matter traditionally within the trial court’s sentencing
purview. Thus, the Daniel analogy is inapposite.
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Case No. 2024-T-0081
will have already been committed to planning and implementing the transfer. This creates
considerable pressure on courts to approve these arrangements despite potential
concerns about public safety or the appropriateness of transitional control for particular
offenders.
{¶73} The concurring opinion’s reliance on Daniel is misplaced. Unlike the
automatic arson registration requirement in Daniel, which arose “by operation of law,”
transitional control is a discretionary program administered by an executive agency that
directly alters how a judicially-imposed sentence is served. The concurrence fails to
distinguish between regulatory consequences that attach automatically to certain
convictions and administrative programs that modify the execution of court-imposed
sentences.
{¶74} Moreover, the concurrence ignores a critical aspect of Daniel: the Court
emphasized that the legislature had specifically authorized judicial involvement only upon
prosecutor request. Here, by contrast, the legislature made transitional control part of the
definition of “prison term”—a sanction courts are expressly authorized to impose. The
concurrence provides no explanation for why the legislature would include transitional
control in the definition of a court-imposed sanction while simultaneously intending to
exclude courts from any meaningful role in determining its appropriateness.
{¶75} Nothing in R.C. 2967.26 expressly prohibits a trial court from disapproving
transitional control at sentencing. The statute merely establishes one specific procedure
by which the court may disapprove transitional control after the DRC provides notice—it
does not establish this as the exclusive means for doing so. As the Twelfth District
correctly observed in State v. Toennisson, the statutory language “does not require the
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Case No. 2024-T-0081
trial court to await a decision by the adult parole authority in order to pass on transitional
control. . . .” State v. Toennisson, 2011-Ohio-5869, ¶ 34 (12th Dist.).
{¶76} R.C. 2929.01(BB)(1)(b)’s specific inclusion of transitional control within the
definition of “prison term” should control over more general provisions about the manner
in which transitional control operates administratively. Furthermore, we should interpret
statutes to avoid absurd results—and it would be absurd to conclude that the legislature
intended to require courts to wait for the DRC to complete extensive preparations for
transitional control before expressing a determination they could have made with equal
validity at sentencing.
{¶77} In the absence of an express statutory limitation, courts retain concurrent
authority to determine, based on the offender’s particular characteristics and record, the
circumstances of the offense, and the purposes of sentencing, whether transitional control
is appropriate, with ultimate veto power in the event the DRC decides in favor of
transitional control.
VI. Public Safety, Judicial Economy, and Balancing of Sentencing Purposes
{¶78} The majority’s focus on rehabilitation ignores the trial court’s equally
important obligation to protect the public. R.C. 2929.11(A) identifies three “overriding
purposes” of felony sentencing, including “to protect the public from future crime by the
offender and others. . . .”
{¶79} Although effective rehabilitation is an important goal under R.C. 2929.11, it
is coequal with the mandates to protect the public from future crime and to punish the
offender. Sentencing is not an exercise in blind optimism; it demands a realistic
assessment of public risk. Rehabilitation itself is not a one-size-fits-all concept. For some
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Case No. 2024-T-0081
offenders, rehabilitation may be better accomplished through structured prison programs
rather than transitional control.
{¶80} As the Twelfth District recognized in State v. Tucker, a trial court must
balance these competing purposes, and in some cases, “the trial court’s obligation to
promote prisoner rehabilitation” may be “outweighed by its primary duties to protect the
public and punish the offender.” (Citation omitted.) State v. Tucker, 2012-Ohio-50, ¶ 11
(12th Dist.).
{¶81} Furthermore, disallowing trial courts from addressing transitional control at
sentencing imposes an unnecessary and costly burden on the Department of
Rehabilitation and Correction. Requiring the DRC to initiate detailed community
placement procedures, only to have them later invalidated by predictable judicial
disapproval, would squander state resources, delay finality, and frustrate the sentencing
process. If courts cannot disapprove transitional control at sentencing, the DRC will
inevitably waste resources preparing for transitional control for inmates who will likely be
disapproved later, creating systemic inefficiency throughout the criminal justice system.
Judicial economy and respect for public resources favor permitting trial courts to make
these determinations at the outset.
VII. The Concurrence’s Policy Objections Do Not Override Statutory Language
{¶82} The concurring opinion suggests that requiring DRC to complete extensive
administrative processes before potential judicial disapproval is not “absurd” but merely
reflects legislative policy choices that courts should not second-guess. This argument
misses the point. The question is not whether the legislature could have chosen such an
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inefficient system, but whether it actually did so when it included transitional control within
the definition of “prison term.”
{¶83} The concurrence asks us to ignore the legislature’s definitional choices in
favor of its preferred interpretation of administrative procedures. But when statutory
definitions conflict with administrative processes, the definitions control. The legislature’s
decision to define “prison term” to include terms “shortened pursuant to section 2967.26”
is not mere surplusage—it reflects a deliberate choice to integrate transitional control into
the sentencing framework rather than treat it as a purely post-sentence administrative
matter.
VIII. Conclusion
{¶84} For the reasons discussed above, I would affirm the trial court’s judgment.
{¶85} I maintain that the trial court possessed the authority to preclude
participation in transitional control at sentencing. The lead and concurring opinions
improperly constrain judicial discretion by creating an artificial distinction between
sentence imposition and execution that finds no basis in the statutory framework.
{¶86} As the majority judgment of this court is consistent with two other districts,
see State v. Howard, 2010-Ohio-5283 (2d Dist.) and State v. Spears,
2011-Ohio-1538
(5th Dist.), but in conflict with the judgment pronounced on the same question by the
Twelfth and First district courts of appeals [see State v. Toennisson,
2011-Ohio-5869, ¶
36 (12th Dist.); State v. Bryant,
2012-Ohio-678, ¶ 23-24 (12th Dist.); State v. Tucker,
2012-Ohio-50, ¶ 9-11 (12th Dist.); and State v. Brown,
2016-Ohio-310, ¶ 16 (1st Dist.),
respectively], I would certify the conflict and the record to the Ohio Supreme Court for
review and final determination on the following question:
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Does a trial court possess the authority as a matter of law to
disapprove of or foreclose a defendant’s participation in any
Department of Rehabilitation and Corrections’ transitional
release program pursuant to R.C. 2967.26 at a sentencing
hearing where the defendant is sentenced to a term of
imprisonment?
{¶87} I respectfully dissent.
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Case No. 2024-T-0081
JUDGMENT ENTRY
For the reasons stated in the opinion of this court, it is the judgment and order of
this court that the judgment of the Trumbull County Court of Common Pleas is reversed.
This case is remanded for the trial court to correct its sentencing entry in accordance with
this court’s opinion.
Costs to be taxed against Appellee.
JUDGE JOHN J. EKLUND
JUDGE SCOTT LYNCH,
concurs with a Concurring Opinion
JUDGE EUGENE A. LUCCI,
dissents with a Dissenting Opinion
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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