State v. Owsley

2021 Ohio 4561

• Court: Ohio Court of Appeals
• Decided: December 27, 2021
• Docket: 2-21-13
• Status: Published

Opinion

[Cite as State v. Owsley, 2021-Ohio-4561.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-21-13

v.

AUSTIN R. OWSLEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2020-CR-23

Appeal Dismissed

Date of Decision: December 27, 2021

APPEARANCES:

Nick A. Catania for Appellant

Benjamin R. Elder for Appellee Case No. 2-21-13

MILLER, J.

{¶1} Defendant-appellant, Austin Owsley, appeals the July 15, 2021

judgment of the Auglaize County Court of Common Pleas. Finding that the issues

presented by Owsley are not ripe for review, we dismiss his appeal.

{¶2} On March 19, 2020, Owsley pleaded guilty to two counts of trafficking

in drugs in violation of R.C. 2925.03(A)(1), fourth-degree felonies. On May 26,

2020, the trial court sentenced Owsley to five years of community control. Owsley

was notified that, if he violated the conditions of his community control, the trial

court could impose concurrent 17-month prison terms for his offenses.

{¶3} On September 4, 2020, Owsley appeared before the trial court and

admitted to violating the conditions of his community control. The trial court found

Owsley guilty of violating the conditions of his community control and ordered that

Owsley be continued on community control. Owsley was readvised that, if he

violated the conditions of his community control, the trial court could impose

concurrent 17-month prison terms for his offenses.

{¶4} On July 14, 2021, Owsley again appeared before the trial court and

admitted to violating the conditions of his community control. The trial court again

found Owsley guilty of violating the conditions of his community control and

ordered that Owsley be continued on community control. This time, however,

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Owsley was notified that, if he violated the conditions of his community control, the

trial court could impose consecutive 18-month prison terms for his offenses.

{¶5} On August 5, 2021, Owsley timely filed a notice of appeal. He raises

one assignment of error for our review.

Assignment of Error

The trial court imposed a prison sentence contrary to law when it imposed a sentence longer than that which the trial court stated it could impose at the original sentencing hearing.

{¶6} In his assignment of error, Owsley challenges the trial court’s

reservation of an aggregate 36-month prison sentence for further violations of his

community-control conditions. He argues that the trial court was without authority

to change the reserved prison sentence from the original reserved sentence of two

concurrent 17-month prison terms to the new reserved sentence of consecutive 18-

month prison terms. However, Ohio appellate courts, including this court, have

“consistently held that an appeal of a reserved sentence of imprisonment that is part

of a sentence of community control is not ripe until an actual sentencing order

imposes the prison term for community control violation.” State v. Poppe, 3d Dist.

Auglaize No. 2-06-23, 2007-Ohio-688, ¶ 14; see State v. Williams, 2d Dist. Greene

No. 2012-CA-43, 2014-Ohio-725, ¶ 15; State v. Ogle, 6th Dist. Wood No. WD-01-

040, 2002 WL 313386, *3-4 (Mar. 1, 2002). At this point, it is uncertain whether

the trial court will ever impose the new reserved prison sentence on Owsley.

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Owsley might abide by the conditions of his community control from now on, and

even if he does not, it is possible that the trial court might once again decide to

continue Owsley on community control or choose to impose only the original 17-

month reserved prison term. “If, and when, [Owsley] is sentenced to a term of

incarceration for violation of his community control sanctions, he can appeal that

sentencing order on the grounds set forth herein * * *.” Poppe at ¶ 17.

{¶7} Accordingly, we conclude that the assignment of error is not ripe for

review and hereby dismiss Owsley’s appeal. Id. at ¶ 18; Ogle at *4.

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr

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