COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59109, 59110, 59111 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION DONALD WOODS : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1991 CHARACTER OF PROCEEDING: Criminal appeals from Common Court Nos. CR-224204, CR-220801 and CR-187581 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor FEDELE DeSANTIS, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: THOMAS M. SHAUGHNESSY 11510 Buckeye Road Cleveland, Ohio 44104 - 2 - KRUPANSKY, C.J.: The consolidated appeals sub judice arise from the judgment of the trial court granting shock probation to defendant Donald A. Woods, mandating his treatment for nine months in an inpatient drug treatment program, and imposing the terms of probation placed on defendant in a subsequent set of cases after defendant twice violated the terms of his original probation./1\ Defendant has been convicted at least sixteen times for various offenses over the past decade, including several instances of petty theft made felonies because of his prior theft convictions./2\ Defendant pled guilty to grand theft in Case Number CR-187581 on January 6, 1984 and was sentenced to two years imprisonment to run consecutive with Case Number CR-185924. Execution of the sentence was initially suspended and defendant was placed on two /1\ Defendant was placed on five years probation by a different trial judge on September 15, 1989 after defendant was convicted of four separate offenses in the following cases: Case No. CR-239398; Case No. CR-238016; Case No. CR-237751; Case No. CR-234654. The trial court sub judice imposed the identical conditions of probation on defendant when granting shock probation in these three cases. However, the propriety of the trial court's order granting probation in the four subsequent separate cases is not presented in the case sub judice. /2\ In addition to the convictions described in footnote one and the three cases sub judice, defendant has been convicted of theft offenses in the following cases: Grand Theft, May 17, 1982, Case No. CR-172018; Grand Theft, March 11, 1982, Case No. CR-166533; Grand Theft, July 22, 1981, Case No. CR-164650; Grand Theft, July 22, 1981, Case No. CR-163385; Attempted Grand Theft, July 22, 1981, Case No. CR-163928; Petty Theft, March 24, 1981, Case No. CR-161386; Petty Theft, April 22, 1980, Case No. 80 CRB 1033; Petty Theft, April 22, 1980, Case No. 80 CRB 1004. - 3 - years probation. Defendant was remanded to the Columbus Correctional Facility in July, 1984 to begin serving the sentence after he was found to have violated the terms of his probation. The record fails to reflect how much of this sentence had been served. Defendant pled guilty to two separate indictments for grand theft in case numbers CR-220801 and CR-224204 on March 21, 1988. Defendant was sentenced to serve two years in each case and the sentences were to run concurrently with each other. The execution of the sentences was suspended and defendant was placed on two years probation on the condition, inter alia, defendant serve six months in the county jail. Defendant began serving concurrent sentences on all three of these offenses at a state penal facility after again violating the terms of his probation./3\ Defendant filed a motion for shock probation pursuant to R.C. 2947.061 on October 31, 1989 which the trial court granted after a hearing on December 12, 1989. Appellant State of Ohio timely appeals pursuant to leave of court from the judgment granting defendant's motion for shock probation. This court sua sponte consolidated the appeals pursuant to Appellate Rule 3(B) on February 26, 1990. Appellant's sole assignment of error follows: /3\ Defendant began serving the sentences in Case Numbers CR-187581, CR-220801 and CR-224204 on September 9, 1989. - 4 - THE LOWER COURT ERRED IN GRANTING THE APPELLEE'S MOTION FOR SHOCK PROBATION PURSUANT TO OHIO REVISED CODE 2947.061. For the reasons set forth below, the Court reverses the judgment of the trial court and remands for further proceedings consistent with this opinion. Appellant State of Ohio does not challenge the jurisdiction of the trial court to consider defendant's motion for shock probation, but argues the trial court abused its discretion in granting shock probation for these three offenses because defendant was ineligible as a "repeat offender." The State notes that shock probation may not be granted when defendant was ineligible for probation at the time of the original sentencing. Section 2947.061 of the Revised Code grants the trial court limited jurisdiction to suspend the execution of a sentence after defendant commences serving the sentence and must be strictly construed. State v. Smith (1989), 42 Ohio St. 2d 60, 61; State v. Addison (1987), 40 Ohio App. 3d 7; State v. Brown (Feb. 20, 1991), Ham. App. No. C-900007, unreported at 3. Section 2947.061 of the Revised Code governs shock probation and provides in pertinent part as follows: (A) Subject to sections 2951.02 to 2951.09 of the Revised Code, the trial court may, upon motion of the defendant made not earlier than thirty days nor later than sixty days after the defendant, having been sentenced, is delivered into the custody of the keeper of the institution in which he is to begin serving his sentence, or upon the court's own motion during the same thirty-day period, suspend the further execution of the sentence and place the defendant on - 5 - probation upon such terms as the court determines, notwithstanding the expiration of the term of court during which such defendant was sentenced. Shock probation under Section 2947.061 is expressly subject to the Revised Code provisions governing probation generally. Section 2951.02 prohibits probation for, inter alia, repeat offenders: (F) An offender shall not be placed on probation or otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following applies: * * * (2) The offender is a repeat offender or a dangerous offender, as defined in section 2929.01 of the Revised Code. Section 2929.01 defines repeat offender, inter alia: (A) "Repeat offender" means a person who has a history of persistent criminal activity, and whose character and condition reveal a substantial risk that he will commit another offense. It is prima-facie evidence that a person is a repeat offender if any of the following apply: * * * (3) Having been convicted of one or more theft offenses as defined in section 2913.01 of the Revised Code, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent theft offense; (Emphasis added). Appellee concedes the applicability of Section 2929.01(A), but argues his numerous convictions do not disqualify him from shock probation since prior convictions constitute only prima facie evidence that a defendant is a "repeat offender." State v. - 6 - Bush (1984), 16 Ohio App. 3d 407; State v. Smith (1986), 31 Ohio App. 3d 26; State v. Wood (1976), 48 Ohio App. 2d 339. However, to rebut the statutory presumption that defendant is a repeat offender under Section 2929.01(A), the trial court must conclude the defendant's character and condition are such that there is no substantial risk defendant will commit another offense. Id.; State v. Brown, supra at 5. In the consolidated appeals sub judice, the trial court suspended execution of the sentences for these three offenses on the grounds that some of the offenses were petty theft made felonies because of prior theft offenses. However, R.C. 2947.061 does not grant the trial court authority to modify prior sentences because the penalty appears harsh. State v. Brown, supra at 6. The sentencing judge is presumed to have considered the appropriate sentencing criteria when the sentences fall within the appropriate statutory limits. State v. O'Dell (1989), 45 Ohio St. 3d 140, 147. The trial court did not make any specific findings concerning defendant's present character and condition to rebut the statutory presumption defendant qualifies as a "repeat offender" under Section 2929.01(A)(3). State v. Brown, supra at 5-6. Absent such specific findings Sections 2947.061 and 2951.02(F) render defendant ineligible for shock probation and granting shock probation in the case sub judice under the present set of facts is an abuse of discretion. - 7 - Assume arguendo, the trial court made a finding on the record attempting to rebut the presumption of "repeat offender" status, such finding in the case sub judice would be against the manifest weight of the evidence, therefore, this Court based on the statutory grant provided in Revised Code Sections 2947.061, 2951.02(F)(2) and 2929.01(A)(3) governing shock probation is required to find the trial court abused its discretion. Accordingly, the trial court's judgment granting shock probation in Case Numbers CR-187581, CR-220801 and CR-224204 is reversed, and the cases are remanded for further proceedings to return defendant-appellee Donald A. Woods to the custody of the state to resume serving the remainder of his original sentences. Judgment accordingly. - 8 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENY, J., and SPELLACY, J., CONCUR CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .