[Cite as State v. Castillo, 2011-Ohio-1821.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 24022
vs. : T.C. CASE NO. 08CR2999
JULIO CASTILLO : (Criminal Appeal from Common Pleas Court) Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 15th day of April, 2011.
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros. Attorney, Atty. Reg. No.0069384, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellant
Dennis Lieberman, 15 W. Fourth Street, Suite 1000, Dayton, OH 45402 Attorney for Defendant-Appellee
GRADY, P.J.:
{¶ 1} This appeal is brought by the State pursuant to R.C.
2945.67, by leave of this court, from the trial court’s order of
April 14, 2010, terminating Defendant’s Julio Castillo’s,
community control sanctions the court had imposed on August 6,
2009, and imposing new, conditional community control sanctions. 2
{¶ 2} On July 24, 2008, while a member of the Peoria Chiefs
minor league baseball team, Defendant was part of a brawl between
the Peoria Chiefs players and the Dayton Dragons players during
a game at Fifth Third Field in Dayton. During that brawl, Defendant
threw a baseball into the stands that struck a spectator, Chris
McCarthy, in the head, causing him serious physical harm.
{¶ 3} Defendant was indicted on two counts of felonious
assault: count one, knowingly causing physical harm by means of
a deadly weapon, R.C. 2903.11(A)(2), and count two, knowingly
causing serious physical harm, R.C. 2903.11(A)(1). The matter
was tried to the court on July 21-23, 2009. The court found
Defendant guilty of count two but not guilty of count one. The
trial court sentenced Defendant to a three year period of community
control which included eight specific sanctions:
{¶ 4} “1. A term three years Basic Supervision with an
Interstate Compact Officer.
{¶ 5} “2. A requirement that the offender pay court costs
and a supervision fee of $50.
{¶ 6} “3. A requirement that the offender obtain and maintain
verifiable employment.
{¶ 7} “4. A requirement that the offender attend Anger
Management counseling.
{¶ 8} “5. A requirement that the offender write a letter of 3
apology with the assistance of an interpreter and present it to
his supervision officer so that it may be forwarded to the victim
by the Division of Criminal Justice Services.
{¶ 9} “6. A requirement that the offender comply with the
rules and regulations of his receiving jurisdiction.
{¶ 10} “7. A requirement that the offender serve 30 days at
the Montgomery County Jail forthwith from final disposition with
no jail time credit.
{¶ 11} “8. A requirement that the offender work towards
obtaining his GED.”
{¶ 12} The judgment of conviction imposing community control
sanctions was journalized on August 6, 2009, at 3:58 p.m. One
hour later, on Defendant’s motion, the trial court stayed execution
of its sentence pending Defendant’s appeal.
{¶ 13} On September 30, 2009, less than two months after being
sentenced to community control sanctions, Defendant filed a motion
to terminate his community control. The Chicago Cubs, to which
Defendant was under contract, had released Defendant and, as a
non-U.S. citizen, Defendant wanted to return to his home country,
the Dominican Republic. The State opposed Defendant’s motion to
terminate his community control, in part, because Defendant had
not completed any of his community control sanctions. On December
1, 2009, the trial court overruled Defendant’s motion to terminate 4
his community control, without prejudice.
{¶ 14} Just three and one-half months after the trial court
denied his first request, Defendant, on March 17, 2010, filed a
second motion to terminate his community control sanctions.
Defendant’s reasons to terminate his community control were the
same as before. The only difference was that Defendant had
dismissed his appeal. The State once again objected to terminating
Defendant’s community control sanctions.
{¶ 15} On April 14, 2010, the trial court granted Defendant’s
motion to terminate his community control sanctions, on the
following conditions: “1) The Defendant shall leave the United
States forthwith; 2) the Defendant shall not return to the United
States for a minimum of three (3) years; and 3) the Defendant shall
pay the court costs of this action as previously ordered.”
{¶ 16} The State’s request for an emergency stay of the trial
court’s decision was denied by the trial court. We also denied
the State’s request to stay the decision of the trial court because
there was no appeal pending before us.
{¶ 17} The State filed a motion seeking leave to appeal the
trial court’s order of April 14, 2010, terminating Defendant’s
community control sanctions. We granted the State leave to appeal
on June 2, 2010.
FIRST ASSIGNMENT OF ERROR 5
{¶ 18} “BECAUSE CASTILLO HAD NOT COMPLETED ANY OF HIS SANCTIONS,
THE TRIAL COURT LACKED THE STATUTORY AUTHORITY TO TERMINATE HIS
COMMUNITY CONTROL.”
{¶ 19} The State argues that the trial court lacked authority
to terminate Defendant’s community control sanctions and committed
an error of law in doing so. In support of that claim the State
points out that once a valid sentence has been executed, a trial
court no longer has the power to modify that sentence except as
provided by law. State v. Hayes (1993), 86 Ohio App.3d 110.
{¶ 20} The State argues that the trial court’s authority to
reduce or terminate community control sanctions is set forth in
R.C. 2929.15(C), and is there limited to where the offender, “for
a significant period of time, fulfills the conditions of a sanction
in an exemplary manner.” According to the State, Defendant did
not fulfill even one of the community control sanctions imposed
upon him by the trial court because, within an hour after the
sentencing hearing, the trial court stayed execution of Defendant’s
sentence pending his appeal, and that stay was never lifted.
Therefore, the trial court’s termination of Defendant’s community
control sanctions constitutes a violation of R.C. 2929.15(C).
{¶ 21} Defendant responds that the State’s citation of
authority for the proposition that a sentence can’t be modified
by the trial court once it is executed is inapposite, because 6
Defendant’s sentence was never executed, but rather was stayed.
Defendant further claims that the State’s interpretation of R.C.
2929.15(C) is not supported by case law, and that R.C. 2929.15(C)
doesn’t limit the court in modifying or terminating community
control sanctions for other reasons. We do not agree.
{¶ 22} “Criminal procedure in Ohio is regulated entirely by
statute. The state has thus created its system of criminal law
covering questions of crime and penalties and has provided its
own definitions and procedures. Municipal Ct. Of Toledo v. State,
ex rel. Platter (1933), 126 Ohio St.103, 184 N.E. 1, paragraph
one of the syllabus. Therefore, it is necessary to apply Ohio
statutory law to the issue of modification of sentences.” State
v. Addison (1987), 40 Ohio App.3d 7, 7.
{¶ 23} R.C. 2929.51(A) formerly provided that, at or after the
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[Cite as State v. Castillo, 2011-Ohio-1821.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 24022
vs. : T.C. CASE NO. 08CR2999
JULIO CASTILLO : (Criminal Appeal from Common Pleas Court) Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 15th day of April, 2011.
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros. Attorney, Atty. Reg. No.0069384, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellant
Dennis Lieberman, 15 W. Fourth Street, Suite 1000, Dayton, OH 45402 Attorney for Defendant-Appellee
GRADY, P.J.:
{¶ 1} This appeal is brought by the State pursuant to R.C.
2945.67, by leave of this court, from the trial court’s order of
April 14, 2010, terminating Defendant’s Julio Castillo’s,
community control sanctions the court had imposed on August 6,
2009, and imposing new, conditional community control sanctions. 2
{¶ 2} On July 24, 2008, while a member of the Peoria Chiefs
minor league baseball team, Defendant was part of a brawl between
the Peoria Chiefs players and the Dayton Dragons players during
a game at Fifth Third Field in Dayton. During that brawl, Defendant
threw a baseball into the stands that struck a spectator, Chris
McCarthy, in the head, causing him serious physical harm.
{¶ 3} Defendant was indicted on two counts of felonious
assault: count one, knowingly causing physical harm by means of
a deadly weapon, R.C. 2903.11(A)(2), and count two, knowingly
causing serious physical harm, R.C. 2903.11(A)(1). The matter
was tried to the court on July 21-23, 2009. The court found
Defendant guilty of count two but not guilty of count one. The
trial court sentenced Defendant to a three year period of community
control which included eight specific sanctions:
{¶ 4} “1. A term three years Basic Supervision with an
Interstate Compact Officer.
{¶ 5} “2. A requirement that the offender pay court costs
and a supervision fee of $50.
{¶ 6} “3. A requirement that the offender obtain and maintain
verifiable employment.
{¶ 7} “4. A requirement that the offender attend Anger
Management counseling.
{¶ 8} “5. A requirement that the offender write a letter of 3
apology with the assistance of an interpreter and present it to
his supervision officer so that it may be forwarded to the victim
by the Division of Criminal Justice Services.
{¶ 9} “6. A requirement that the offender comply with the
rules and regulations of his receiving jurisdiction.
{¶ 10} “7. A requirement that the offender serve 30 days at
the Montgomery County Jail forthwith from final disposition with
no jail time credit.
{¶ 11} “8. A requirement that the offender work towards
obtaining his GED.”
{¶ 12} The judgment of conviction imposing community control
sanctions was journalized on August 6, 2009, at 3:58 p.m. One
hour later, on Defendant’s motion, the trial court stayed execution
of its sentence pending Defendant’s appeal.
{¶ 13} On September 30, 2009, less than two months after being
sentenced to community control sanctions, Defendant filed a motion
to terminate his community control. The Chicago Cubs, to which
Defendant was under contract, had released Defendant and, as a
non-U.S. citizen, Defendant wanted to return to his home country,
the Dominican Republic. The State opposed Defendant’s motion to
terminate his community control, in part, because Defendant had
not completed any of his community control sanctions. On December
1, 2009, the trial court overruled Defendant’s motion to terminate 4
his community control, without prejudice.
{¶ 14} Just three and one-half months after the trial court
denied his first request, Defendant, on March 17, 2010, filed a
second motion to terminate his community control sanctions.
Defendant’s reasons to terminate his community control were the
same as before. The only difference was that Defendant had
dismissed his appeal. The State once again objected to terminating
Defendant’s community control sanctions.
{¶ 15} On April 14, 2010, the trial court granted Defendant’s
motion to terminate his community control sanctions, on the
following conditions: “1) The Defendant shall leave the United
States forthwith; 2) the Defendant shall not return to the United
States for a minimum of three (3) years; and 3) the Defendant shall
pay the court costs of this action as previously ordered.”
{¶ 16} The State’s request for an emergency stay of the trial
court’s decision was denied by the trial court. We also denied
the State’s request to stay the decision of the trial court because
there was no appeal pending before us.
{¶ 17} The State filed a motion seeking leave to appeal the
trial court’s order of April 14, 2010, terminating Defendant’s
community control sanctions. We granted the State leave to appeal
on June 2, 2010.
FIRST ASSIGNMENT OF ERROR 5
{¶ 18} “BECAUSE CASTILLO HAD NOT COMPLETED ANY OF HIS SANCTIONS,
THE TRIAL COURT LACKED THE STATUTORY AUTHORITY TO TERMINATE HIS
COMMUNITY CONTROL.”
{¶ 19} The State argues that the trial court lacked authority
to terminate Defendant’s community control sanctions and committed
an error of law in doing so. In support of that claim the State
points out that once a valid sentence has been executed, a trial
court no longer has the power to modify that sentence except as
provided by law. State v. Hayes (1993), 86 Ohio App.3d 110.
{¶ 20} The State argues that the trial court’s authority to
reduce or terminate community control sanctions is set forth in
R.C. 2929.15(C), and is there limited to where the offender, “for
a significant period of time, fulfills the conditions of a sanction
in an exemplary manner.” According to the State, Defendant did
not fulfill even one of the community control sanctions imposed
upon him by the trial court because, within an hour after the
sentencing hearing, the trial court stayed execution of Defendant’s
sentence pending his appeal, and that stay was never lifted.
Therefore, the trial court’s termination of Defendant’s community
control sanctions constitutes a violation of R.C. 2929.15(C).
{¶ 21} Defendant responds that the State’s citation of
authority for the proposition that a sentence can’t be modified
by the trial court once it is executed is inapposite, because 6
Defendant’s sentence was never executed, but rather was stayed.
Defendant further claims that the State’s interpretation of R.C.
2929.15(C) is not supported by case law, and that R.C. 2929.15(C)
doesn’t limit the court in modifying or terminating community
control sanctions for other reasons. We do not agree.
{¶ 22} “Criminal procedure in Ohio is regulated entirely by
statute. The state has thus created its system of criminal law
covering questions of crime and penalties and has provided its
own definitions and procedures. Municipal Ct. Of Toledo v. State,
ex rel. Platter (1933), 126 Ohio St.103, 184 N.E. 1, paragraph
one of the syllabus. Therefore, it is necessary to apply Ohio
statutory law to the issue of modification of sentences.” State
v. Addison (1987), 40 Ohio App.3d 7, 7.
{¶ 23} R.C. 2929.51(A) formerly provided that, at or after the
time of sentencing for a felony up to the time the defendant is
delivered to the institution where he is to serve his sentence,
the court may suspend the sentence and place the defendant on
probation pursuant to R.C. 2951.02. R.C. 2929.51(A) was repealed
effective January 1, 1974 (149 v. H490, §2). Probation was
eliminated as an option and was replaced by community control
pursuant to S.B.2, effective in 1996.
{¶ 24} While R.C. 2929.51(A) was in effect, and consistent with
its provisions, it was held that “when the full sentence of a 7
defendant involved imprisonment, the execution of the sentence
is commenced when the defendant is delivered from the temporary
detention facility of the judicial branch to the penal facility
of the executive branch.” State v. Addison (1987), 40 Ohio App.3d
7, 9; citing United States v. Benz (1931), 282 U.S. 304, 51 S.Ct.
113, 75 L.Ed. 354. Therefore, until that execution commenced,
the court could suspend the sentence it imposed and impose a more
severe sentence “without violating the multiple-sentence
protections of the Double Jeopardy Clause. The reason is that,
before its execution, a sentence lacks the constitutional finality
of a verdict of acquittal.” State v. Meister (1991), 76 Ohio App.3d
15, 16; citing United States v. DiFrancesco (1980), 449 U.S. 117,
101 S.Ct. 426, 66 L.Ed.2d 328. Nevertheless, “[h]aving once
journalized the sentence, the court is limited in its discretion
to suspend execution of a criminal sentence to those instances
in which statutory authority exists.” Id., at 16.
{¶ 25} The trial court’s order of April 14, 2010, from which
this appeal was taken by the State, terminated the community control
sanctions the court had imposed on August 6, 2009, conditioned
on Defendant’s performance of new and less restrictive sanctions.
Having journalized its August 6, 2009 judgment of conviction, the
court was limited to the relief made available by R.C. 2929.15(C)
with respect to both termination of the community control sanctions 8
therein imposed and imposition of any less restrictive sanction
the court might impose.
{¶ 26} On this record, because the court had promptly stayed
execution of its August 6, 2009 judgment, Defendant Castillo could
not have satisfied the prerequisites of R.C. 2929.15(C) regarding
the termination of the sanctions the August 6, 2009 judgment
imposed: that a defendant “for a significant period of time,
fulfills the sanctions in an exemplary manner.” Neither did the
trial court find that Castillo had satisfied those prerequisites.
Therefore, the trial court erred when it terminated those
sanctions in its order of April 14, 2010.
{¶ 27} The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 28} “THE TRIAL COURT’S ORDER TERMINATING CASTILLO’S
COMMUNITY CONTROL, WHILE AT THE SAME TIME IMPOSING ADDITIONAL
SANCTIONS UPON HIM IS UNENFORCEABLE AND VIOLATES THE LAW.”
{¶ 29} The error assigned is rendered moot by our decision
sustaining the first assignment of error, and we therefore exercise
the discretion conferred on us by App.R. 12(A)91)(c) and decline
to decide the error assigned.
Conclusion
{¶ 30} Having sustained the first assignment of error, we will
reverse and vacate the final order of April 14, 2010, from which 9
this appeal was taken. In consequence of that relief, the prior
final order of August 6, 2009 is reinstated, as are the community
control sanctions therein imposed.
FAIN, J. And RINGLAND, J., concur.
(Hon. Robert P. Ringland, Twelfth District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
Copies mailed to:
Andrew T. French, Esq. Dennis S. Lieberman, Esq. Hon. Connie S. Price