State v. Coons

2023 Ohio 3506, 225 N.E.3d 1196

• Court: Ohio Court of Appeals
• Decided: September 29, 2023
• Docket: 29593
• Status: Published

Opinion

[Cite as State v. Coons, 2023-Ohio-3506.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 29593 : v. : Trial Court Case No. 2021 CR 01067 : BRIAN K. COONS : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on September 29, 2023

MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee

JEFFREY T. GRAMZA, Attorney for Appellant

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TUCKER, J.

{¶ 1} Brian K. Coons appeals from his conviction following a guilty plea to charges

of gross sexual imposition and corrupting another with drugs.

{¶ 2} In his sole assignment of error, Coons contends the trial court erred in

declaring him ineligible under R.C. 2967.193 for earned credit toward his prison sentence -2-

for corrupting another with drugs.

{¶ 3} We agree that Coons statutorily is eligible for earned-credit on his sentence

for corrupting another with drugs. Accordingly, the trial court’s judgment will be reversed

insofar as it found him ineligible for any earned credit, and the case will be remanded

solely for the trial court to file a new judgment entry correcting the error. In all other

respects, the judgment will be affirmed.

I. Background

{¶ 4} A grand jury indicted Coons on three counts of gross sexual imposition, two

counts of corrupting another with drugs, two counts of sexual battery, two counts of

unlawful sexual conduct with a minor, one count of public indecency, and two counts of

sexual imposition. The alleged victim of each offense was Coons’ minor daughter.

{¶ 5} Coons ultimately pled guilty to a bill of information charging him with one

count of gross sexual imposition (victim under age 13), a third-degree felony, and one

count of corrupting another with drugs (Schedule III, IV, or V drug), a second-degree

felony. In exchange for Coons’ plea, the indicted charges were dismissed.

{¶ 6} The trial court imposed a five-year prison term for the gross-sexual-

imposition conviction and designated Coons a Tier II sex offender. For the corrupting-

another-with-drugs conviction, the trial court imposed an indefinite prison term of seven

to ten and one-half years under the Reagan Tokes Act. The trial court ordered the

sentences to be served consecutively. As relevant here, the trial court’s judgment entry

included a notation that Coons “is not eligible for * * * Earned Credit.”

II. Analysis -3-

{¶ 7} On appeal, Coons challenges the trial court’s finding regarding his earned-

credit eligibility. He asserts that nothing in the earned-credit statute, R.C. 2967.193,

makes him ineligible for reductions in his prison sentence for corrupting another with

drugs. Therefore, he contends his sentence is contrary to law insofar as the trial court

declared him ineligible for earned credit on that sentence. In response, the State argues

that corrupting another with drugs is an offense of violence and that the statute excludes

it from earned-credit eligibility.

{¶ 8} At the time of Coons’ sentencing, earned-credit opportunities were found in

R.C. 2967.193(A)(1) and (A)(2). The earned-credit statute later was amended effective

April 4, 2023, and the same earned-credit opportunities now are found in R.C.

2967.193(A)(2) and (A)(3). Substantive changes made by the amendment are immaterial

to the issue before us. For purposes of our analysis, we will refer to the current version of

the statute, as the amendment explicitly applies “to persons confined in a state

correctional institution,” which includes Coons. See R.C. 2967.193(A)(1).

{¶ 9} The earned-credit statute provides two types of opportunities for prison

inmates to earn credit against their prison sentences by participating in or completing

various programs. First, under R.C. 2967.193(A)(2), an inmate may earn one or five days

of credit for each month in which the inmate “productively participates” in an “education

program, vocational training, employment in prison industries, treatment for substance

abuse, or any other constructive program developed by the department of rehabilitation

and correction[.]” Second, under R.C. 2967.193(A)(3), an inmate who “successfully

completes” certain other programs or courses may earn 90 days of credit or a 10-percent -4-

reduction in a prison term, whichever is less. To receive this reduction, an inmate may

obtain a high-school diploma or certificate of equivalence, complete drug programs, a

vocational-school program, a college-certification program, or meet the criteria for a

certificate of achievement and employability.

{¶ 10} Both types of earned-credit opportunities have eligibility requirements.

Under R.C. 2967.193(C), a prison inmate is not entitled to earned credit under division

(A) if one or more of the following applies:

(1) The person is serving a prison term that section 2929.13 or section

2929.14 of the Revised Code specifies cannot be reduced pursuant to this

section or this chapter or is serving a sentence for which section 2967.13 or

division (B) of section 2929.143 of the Revised Code specifies that the

person is not entitled to any earned credit under this section.

(2) The person is sentenced to death or is serving a prison term or a term

of life imprisonment for aggravated murder, murder, or a conspiracy or

attempt to commit, or complicity in committing, aggravated murder or

murder.

(3) The person is serving a sentence of life imprisonment without parole

imposed pursuant to section 2929.03 or 2929.06 of the Revised Code, a

prison term or a term of life imprisonment without parole imposed pursuant

to section 2971.03 of the Revised Code, or a sentence for a sexually

oriented offense that was committed on or after September 30, 2011.

{¶ 11} In addition, under R.C. 2967.193(A)(3), a prison inmate is ineligible for the -5-

90-day or 10-percent reduction for completing one of the referenced educational or drug

programs if the person “is serving a mandatory prison term or a prison term for an offense

of violence or a sexually oriented offense[.]”

{¶ 12} With regard to Coons’ sentence for gross sexual imposition, R.C.

2967.193(C)(3) and R.C. 2967.193(A)(3) both rendered him ineligible for earned credit.

Coons’ appeal concerns only his eligibility for earned credit on his consecutive sentence

{¶ 13} Coons’ prison term for corrupting another with drugs is not one that R.C.

2967.193(C) excludes from earned-credit eligibility. Instead, the State cites the prohibition

on earned credit for “an offense of violence” found in R.C. 2967.193(A)(3). 1 The State

argues that Coons’ act of corrupting his daughter with drugs qualified as an offense of

violence because it caused at least some physiological impairment of some duration.

{¶ 14} Upon review, we find the State’s reliance on the offense-of-violence

exclusion in R.C. 2967.193(A)(3) to be unpersuasive. As an initial matter, that exclusion

only applies to the second type of earned credit, which involves a 90-day or 10-percent

sentence reduction for completing a specified educational or drug program. On its face,

the offense-of-violence exclusion does not purport to render an inmate ineligible for the

first type of earned credit, which involves a sentence reduction of one or five days per

month under R.C. 2967.193(A)(2) for productively participating in one or more prison

programs. Based on our review of the record, we see nothing that would make Coons

1 In its appellate brief, the State asserts that R.C. 2967.193(C) excludes offenses of violence from earned-credit eligibility, but it does not. Offenses of violence are excluded by R.C. 2967.193(A)(3). Prior to the April 4, 2023 amendment, the same exclusion for offenses of violence was found in R.C. 2967.193.(A)(2). -6-

statutorily ineligible for earned credit of this type on his sentence for corrupting another

with drugs. Therefore, the trial court erred insofar as its judgment entry declared him

ineligible for any earned credit.

{¶ 15} If the State’s argument were correct, however, Coons would be ineligible

for an earned-credit sentence reduction of 90 days or 10 percent under R.C.

2967.193(A)(3). The State recognizes that corrupting another with drugs is not specifically

identified as an “offense of violence” in R.C. 2901.01(A)(9)(a). Nevertheless, the State

notes that R.C. 2901.01(A)(9)(c) also defines an offense of violence to include “[a]ny

offense, other than a traffic offense, * * * committed purposely or knowingly, and involving

physical harm to persons[.]” Under R.C. 2901.01(A)(3), “physical harm to persons”

includes “any injury, illness, or other physiological impairment, regardless of its gravity or

duration.” The phrase “physiological impairment” has been defined as “ ‘a damaging or

lessening of a person’s normal physical functioning.’ ” State v. Vore, 12th Dist. Warren

No. CA20212-07-065, 2014-Ohio-1583, ¶ 17, quoting State v. Roof, 1st Dist. Butler No.

CA77-10-0110, 1978 WL 216430, *1 (Nov. 8, 1978).

{¶ 16} Coons was convicted of corrupting another with drugs in violation of R.C.

2925.02(A)(4)(a). This statute provides that no person shall knowingly by any means

“[f]urnish or administer a controlled substance to a juvenile who is at least two years the

offender’s junior, when the offender knows the age of the juvenile or is reckless in that

regard[.]” The bill of information to which Coons pled guilty charged the offense as a

second-degree felony based on the controlled substance at issue being a Schedule III,

IV, or V drug. -7-

{¶ 17} The State presumes that Coons’ conviction under R.C. 2925.02(A)(4)(a)

was predicated on his giving his daughter marijuana and/or cocaine. The State references

a victim-impact statement from Coons’ daughter in which she mentioned using marijuana

and cocaine provided by him. The State contends we reasonably may infer that Coons’

act of providing these drugs to his daughter caused her to experience at least some

physiological impairment.

{¶ 18} The problem with the State’s argument is that marijuana and cocaine are

Schedule I and Schedule II controlled substances. A grand-jury indictment charging

Coons with corrupting his daughter with drugs by providing her with marijuana and

cocaine was dismissed. Coons pled guilty to a bill of information accusing him of

corrupting his daughter with an unspecified Schedule III, IV, or V controlled substance.

The record is devoid of evidence identifying the Schedule III, IV, or V drug at issue or

establishing that it had any physiological effect on Coons’ daughter. In fact, the bill of

information alleged that Coons had “furnish[ed] or administer[ed]” the unspecified drug to

his daughter. The act of “furnishing” involves providing or supplying someone with a drug.

State v. Turvey, 2023-Ohio-2248, __ N.E.3d __, ¶ 84 (6th Dist.). Because Coons’

daughter was a juvenile, simply providing or supplying her with a Schedule III, IV, or V

controlled substance would be enough for a conviction under R.C. 2925.02(A)(4)(a),

regardless of whether she even used the drug. Compare State v. Thompson, 9th Dist.

Lorain No. 3836, 1985 WL 11081 (Aug. 28, 1985) (affirming conviction for corrupting a

minor with drugs under R.C. 2925.02(A)(4) where defendant merely handed cocaine to a

minor with the intent that she use it). -8-

{¶ 19} Absent evidence that Coons’ daughter experienced some physiological

impairment as a result of his furnishing or administering an unspecified Schedule III, IV,

or V controlled substance, the record fails to support a finding that his violation of R.C.

2925.02(A)(4)(a) was an offense of violence. We note too that Coons’ offense carried with

it a statutory presumption for a prison term, but it did not involve a mandatory prison term,

which also would have disqualified him from earned credit under R.C. 2967.193(A)(3).

Finally, although Coons received an indefinite sentence for corrupting another with drugs

under the Reagan Tokes Act, the earned-credit statute applies to such sentences. See

R.C. 2967.193(F)(2).

{¶ 20} Where a trial court purports to preclude an otherwise-eligible defendant

from obtaining earned credit under R.C. 2967.193, that portion of its judgment is not

authorized by law and may be challenged on appeal. State v. Livingston, 2014-Ohio-

1637, 9 N.E.3d 1117, ¶ 10 (1st Dist.); see also State v. Eitzman, 3d Dist. Henry No. 7-21-

03, 2022-Ohio-574, ¶ 40 (“[T[he trial court opted to include a statement in its judgment

entry about Eitzman’s eligibility for earned credit under R.C. 2967.193. However, the

statement that the trial court chose to include about earned credit under [R.C.] 2967.193

is inconsistent with the statutory standards set forth in that provision. * * * Since this

statement is clearly and convincingly contrary to law, we vacate this portion of his

sentence and remand this matter to the trial court for the limited purpose of correcting the

judgment entry.”).

{¶ 21} Based on the reasoning set forth above, we conclude that the trial court’s

judgment entry is clearly and convincingly contrary to law insofar as it declares Coons -9-

wholly ineligible for earned credit under R.C. 2967.193. Coons’ assignment of error is

sustained.

III. Conclusion

{¶ 22} The trial court’s judgment is reversed with regard to its finding that Coons is

ineligible for any earned credit under R.C. 2967.193. The case is remanded to the trial

court for the limited purpose of filing a revised judgment entry correcting its error. In all

other respects, the trial court’s judgment is affirmed.

WELBAUM, P.J. and EPLEY, J., concur.