Summary
interpreting R.C. 2925.03[E] requiring "actual incarceration" for a violation of division of that statute, and R.C. 2925.01[D] defining "actual incarceration"
Summary of this case from State v. CravensOpinion
No. 79-202
Decided November 21, 1979.
Criminal law — Felony drug offense — Imposition of sentence — Statutory provision for "actual incarceration" — Sentence modification inapplicable.
Where the penalty for a felony drug offense under R.C. Chapter 2925 specifically provides for a period of "actual incarceration," the convicted offender must serve that stated period in a state penal or reformatory institution, and the sentencing judge has no discretion to modify this period of actual incarceration by implementing R.C. 2929.51(A).
APPEAL from the Court of Appeals for Wayne County.
On August 15, 1978, appellant, Larry Oxenrider, entered a guilty plea to a charge of aggravated trafficking in marihuana in violation of R.C. 2925.03(A)(7). R.C. 2925.03(E)(3) provides, in part, that this offense is a second degree felony, and that the court shall impose a sentence of "actual incarceration" of six months.
Prior to the imposition of sentence, appellant requested that he be given a "split" sentence, pursuant to R.C. 2929.51(A), which would allow him to serve only six months imprisonment in the county jail. However, relying on its interpretation of the definition of "actual incarceration" in R.C. 2925.01(D), the trial court determined that six months imprisonment must be spent in a penitentiary rather than a county jail; therefore, appellant was ineligible for "split" sentencing. Accordingly, Oxenrider was sentenced to the Ohio State Reformatory at Mansfield, for a period of not less than two years nor more than fifteen years, with six months actual incarceration.
Appellant was conveyed to the reformatory on September 5, 1978. On December 20, 1978, the Court of Appeals affirmed the judgment of the trial court.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Keith A. Shearer, prosecuting attorney, and Mr. Stephen D. Knowling, for appellee.
Gold, Rotatori, Messerman Schwartz Co., L.P.A., and Mr. Niki Z. Schwartz, for appellant.
The sole issue presented by this appeal is whether the requirement of six months actual incarceration as a penalty for the violation of R.C. 2925.03(A)(7) precludes the sentencing judge from exercising his discretion to modify defendant's sentence pursuant to R.C. 2929.51(A). Appellant contends that six months may be spent in a county jail or workhouse, while the state argues conversely that the time must be spent in a state penitentiary or reformatory. To resolve this issue we look to the definitional statute, R.C. 2925.01(D), which provides, in pertinent part, that:
"`Actual incarceration' means a person is required to be imprisoned for the stated period notwithstanding any contrary provisions for suspension of sentence, probation, shock probation, parole, and shock parole***." (Emphasis added.)
On its face, this provision prohibits consideration of the type of sentence modification permitted by R.C. 2929.51(A), which states, in relevant part, that:
"At the time of sentencing***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***." (Emphasis added.)
In other words, R.C. 2929.51(A) is a provision for suspension of sentence and placement of the offender on probation, a condition thereof being up to six months imprisonment in a county jail. Yet, notwithstanding this provision, R.C. 2925.01(D) requires that appellant be imprisoned for the stated period (six months).
A comparative analysis of these two statutes leaves only one ambiguity — the meaning of the term "imprisoned." This uncertainty is rectified by R.C. 1.05, which defines this word as follows:
"As used in the Revised Code, unless the context otherwise requires, `imprisoned' means imprisonment in a county or municipal jail or workhouse if the offense is a misdemeanor, and imprisoned in a state penal or reformatory institution if the offense is a felony***." (Emphasis added.)
This statutory analysis leads us to the conclusion that a person convicted under R.C. 2925.03(A)(7), a second degree felony, must spend at least six months in a state penitentiary or reformatory, and the sentencing judge has no discretion to modify this period of actual incarceration by implementing R.C. 2929.51(A).
This conclusion finds further support when R.C. 2951.04, the provision dealing with drug dependent offenders, is considered. Subdivision (C) of that statute allows a court to place a drug dependent individual on conditional probation only "after completion of any period of actual incarceration which may be required by Chapter 2925." It would make little sense to require a drug dependent offender to serve his stated period of actual incarceration in a state penitentiary, prior to receiving treatment by way of conditional probation, yet allow a non-dependent trafficker in drugs to spend six months or less in the relatively less harsh environs of a county jail.
This court, having found appellant to be ineligible for the sentence modification provided by R.C. 2929.51(A), affirms the judgment of the Court of Appeals.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, JACKSON and HOLMES, JJ., concur.
JACKSON, J., of the Eighth Appellate District, sitting for LOCHER, J.