State v. Draper

¶1dissenting. I respectfully dissent from the majority’s attempt to distinguish State v. McMullen (1983), 6 Ohio St. 3d 244, 6 OBR 312, 452 N.E. 2d 1292, on the perceived distinction between probation granted pursuant to R.C. 2929.51(A) and 2951.02, and shock probation granted pursuant to R.C. 2929.51(B) and 2947.061.

¶2In my review of R.C. 2951.09, the procedure in which probation and shock probation are revoked, there is no indication that the judge or magistrate must apply different standards depending on the type of probation originally imposed. Instead, the judge or magistrate must “inquire into the conduct of the defendant, and may terminate the probation and impose any sentence that originally could have been imposed … (Emphasis added.) R.C. 2951.09. We must presume that the General Assembly was aware that R.C. 2951.09 permitted the modification of the original sentence when it enacted the shock probation statutes. In fact, R.C. 2947.061 incorporates R.C. 2951.09 by reference3 and makes the conditions and applications of shock probation the same as for probation, except for the time when shock probation is originally granted.

¶3This court explained in State v. McMullen, supra, at 246, 6 OBR at 314, 452 N.E. 2d at 1294-1295, that:

¶4“By placing a defendant on probation, the judge has afforded the benefit of a reduced sentence conditioned upon the defendant’s efforts to reform. A defendant has no expectation of finality in the original sentence when it is subject to Ms compliance with the terms of his probation. In the event of a violation of probation, the original sentence does not become final but is subject to modification within the standards of state law.

¶5“We hold, therefore, that a judge possesses the discretion to impose a longer sentence after revocation of a defendant’s probation, within the purview of R.C. 2951.09 ….”

¶6Thus, in reading R.C. 2947.061 in pari materia with R.C. 2951.09,1 conclude that once a defendant chooses to pursue shock probation he obligates himself to comply with the terms of Ms probation. Then, in the event of noncompliance with the agreed-upon probation conditions, the defendant is subject to the provisions of R.C. 2951.09. The burden placed on the defendant via R.C. 2951.09 goes hand in hand with the benefits created by R.C. 2947.061.

¶7Accordingly, for the reasons expressed above and those espoused in State v. McMullen, supra,I dissent and would affirm the court of appeals.