COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60771, 60772, 60773, 60774, 60775 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARK A. JOHNSON : : Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case Nos. CR-237030, 240754, 241966, 243329, 243878 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: Stephanie Tubbs-Jones John B. Gibbons, Esq. Cuyahoga County Prosecutor 2000 Standard Building L. Christopher Frey, Asst. 1370 Ontario Street Justice Center - 8th Floor Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: I. On April 25, 1989, appellant, Mark A. Johnson, was indicted in case number 237030 for three counts of passing bad checks in violation of R.C. 2913.11, and one count of theft in violation of R.C. 2913.02. On May 26, 1989, appellant plead guilty to two counts of passing bad checks, and was sentenced to one year of incarceration for each count, said sentences to run concurrently. Six months of each sentence was suspended on the condition that appellant serve five years probation and make restitution in the amount of $2,0l6.00. On September 22, 1989, appellant was indicted for three counts of theft in case number 240754. On October 4, 1989, appellant was indicted for three counts of theft, and one count of passing bad checks in case number 243329, and for two counts of passing bad checks in case number 243878. On October 20, 1989, appellant was indicted for one count of theft in case number 241966. The underlying offenses for these indictments occurred from January to June in 1989. On December 5, 1989, appellant pled guilty to all counts in case number 240754, guilty to three counts of theft in case number 243329, guilty to one count of passing bad checks in case number 243878, and, finally, guilty to one count of theft in case number 241966. - 3 - On December 28, 1989, the trial court conducted a hearing to sentence appellant in cases numbered 240754, 241966, 243329, and 243878, and conducted a probation revocation hearing in case number 237030. The trial court found appellant to be a probation violator in case number 237030, and ordered appellant to serve the balance of the suspended sentence prior to and consecutive with the sentences imposed in cases numbered 240754, 241966, 243329, and 243878, and serve five years probation in case number 237030. It is from this ruling that appellant timely appeals. II. For his first assignment of error, appellant contends that the trial court erred in imposing a term of five years probation, in addition to reinstating the original term of incarceration. We find that this assignment of error is without merit. A trial judge possesses the discretion to impose a longer sentence after revocation of a defendant's probation, within the purview of R.C. 2951.09, without violating the defendant's constitutional right against double jeopardy. State v. Draper (1991), 60 Ohio St. 3d 81; State v. McMullen (1983), 6 Ohio St. 3d 244. The only case in which a court does not have the power to increase a post-revocation sentence is where shock probation is granted pursuant to R.C. 2992.51(B) and 2947.061. Draper, supra at 83. - 4 - III. For his second assignment of error, appellant contends that the trial court erred in finding that he was a probation violator. We find that this assignment of error is without merit. The trial court found that appellant's convictions in cases numbered 240754, 241966, 243329, and 243878 constituted a probation violation in case number 237030, even though the underlying offenses occurred prior to appellant's sentencing in case number 237030. These other offenses were not known to the court at the time of appellant's sentencing in case number 237030. Revocation of probation based upon acts committed by a defendant prior to probation, of which the court was not made aware, is not unconstitutional. Tiitsman v. Black (C.A.6, 1976), 536 F. 2d 678. We find that it was within the sound discretion of the trial court to revoke appellant's probation on the basis of criminal activity that was committed prior to appellant's sentencing, which was not revealed to the court at such time. Judgment affirmed. - 5 - This cause is affirmed. It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. DAVID T. MATIA, PRESIDING JUDGE JOHN F. CORRIGAN, JUDGE SARA J. HARPER, JUDGE, CONCURS IN PART AND DISSENTS IN PART (SEE ATTACHED CONCURRING AND DISSENTING OPINION) 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 journaliza- tion, at which time it will become the judgment and order of the Court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60771, 60772, 60773, 60774, 60775 : STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : : AND -vs- : : DISSENTING MARK A. JOHNSON : : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1991 HARPER, J. CONCURRING IN PART AND DISSENTING IN PART: I concur with the majority opinion on the issue of the trial court's discretion to revoke a defendant's probation and impose a longer sentence within the standards of state law when a defendant violates the terms of his probation. State v. Draper (1991), 60 Ohio St. 3d 91; State v. McMullen (1983), 6 Ohio St. 3d 244. I equally agree with the majority that the trial court possesses a discretionary power to revoke a probation based on crimes committed prior to sentencing, that was not known to the court at the time of sentencing. Burns v. United States (1932), 287 U.S. 216; Davis v. Parker (1968), 293 F.Supp. 1388; see also United States v. Ross (1974), 503 F.2d 940; Wright v. United - 2 - States (1974), 315 A.2d 839; Martin v. State (1971), 243 So.2d 189. However, I dissent from the majority opinion which sidesteps the issue of whether the trial court abused its discretion by reinstating the original term of incarceration while leaving the original five years probation intact. My opinion is that the trial court does not have such authority and that this court does not have the mandate to grant the trial court such nondiscretion- ary power. Appellant, in his first assignment of error, argues that the trial court erred by imposing a five year probation upon his discharge after serving a definite sentence. The state argues that since appellant did not object to the court's order during the probation hearing, he waived his right to argue the issue on appeal. Before addressing appellant's first assignment of error, I would first address the state's contention on the issue of waiver. This court, in State v. Muscatello (1977), 57 Ohio App. 2d 231, held that an error which has constitutional implications necessarily involve substantial rights of an appellant and should be reviewed as a plain error, pursuant to Crim. R. 52. In the within case, appellant's requirement to serve five years probation at the conclusion of his prison term necessarily involve his fundamental right of freedom and, therefore, has constitutional implications. Appellant, during probation, does not have complete freedom as other citizens who are not on - 3 - probation. Appellant is not free to travel outside the state without permission of the court or his probation officer, or indulge in other activities that a citizen can well be expected to be involved in because of the disability. It is my opinion that pursuant to Crim. R. 52, appellant's failure to object to the trial court's decision does not preclude his right to appeal such error. See State v. Stover (1982), 8 Ohio App. 3d 179, third paragraph. Therefore, pursuant to Crim. R. 52, appellant's assignment of error is properly before this court. Appellant argues that he will be subjected to multiple punishment if he is to be on probation after he serves a full sentence. The trial court's journal entry on appellant's original sentence reads as follows: "IT IS THEREFORE, ORDERED AND ADJUDGED BY THE COURT THAT SAID DEFENDANT, MARK A. JOHNSON, IS SENTENCED TO THE OHIO STATE REFORMATORY, MANSFIELD, OHIO, FOR A TERM OF (1) ONE YEAR ON EACH COUNT (1) ONE AND (2) TWO. PAY COSTS. TO RUN CONCURRENTLY. (6) SIX MONTHS OF EACH SENTENCE SUSPENDED ON FOLLOWING CONDITIONS: DEFENDANT PLACED ON (5) FIVE YEARS PROBATION, DEFENDANT TO PAY RESTITUTION TO VICTIM SIEVERS SECURITY IN AMOUNT OF $2,016.00; RESTITUTION TO BE MADE IN EQUAL MONTHLY INSTALLMENTS AS SET BY PROBATION OFFICER. SENTENCE TO RUN CONSECUTIVELY WITH SENTENCE IMPOSED IN CR 234349, CR 234658 AND CR 235719. DEFENDANT TO PAY THE COST OF THIS PROSECUTION." The trial court's condition for suspending appellant's sentence is that appellant be placed on five years probation, and be obligated to pay restitution. When the trial court revoked appellant's probation and reinstated the suspended jail sentence, by implication, the five years probation, which was the - 4 - condition for the original suspension of the sentence, is invalidated. "It is only necessary now when probation is revoked that the trial court terminate the suspension of execution of the sentence previously imposed and previously suspended. It will also be noted that authority to impose a sentence would not include authority to revoke or modify a sentence already imposed." State, ex rel. v. Dept. of Rehab. & Corr. (1982), 10 Ohio App. 3d 172, 173. In the within case, the trial court's original sentence was for a term of one year, six months of which was suspended. The trial court's termination of the six month suspension in its probation revocation order automatically terminated the five year probationary period. Probation is not a sentence, but a discretionary power imposed by the court in lieu of sentence. When the original sentence was reinstated, the state, therefore, is not permitted to have its cake and eat it too. It must give up something as a condition for probation. The trial court's entry reinstating the original sentence states as follows: "JOURNAL ENTRY "DEFENDANT, MARK A. JOHNSON, IN OPEN COURT REPRESENTED BY COUNSEL FOR HEARING ON ALLEGED PROBATION VIOLATION. "DEFENDANT WAS FULLY ADVISED OF HIS CONSTITUTIONAL RIGHTS. "HEARING HAD. "COURT FINDS DEFENDANT, MARK A. JOHNSON, TO BE A PROBATION VIOLATOR IN THIS CASE. "THEREUPON, THE COURT INQUIRED OF THE SAID DEFENDANT IF HE HAD ANYTHING TO SAY WHY JUDGMENT SHOULD NOT BE PRONOUNCED AGAINST HIM; AND HAVING NOTHING BUT WHAT HE HAD ALREADY SAID AND SHOWING NO GOOD AND SUFFICIENT CAUSE WHY JUDGEMENT [SIC] SHOULD NOT BE PRONOUNCED: - 5 - "IT IS THEREFORE, ORDERED AND ADJUDGED BY THE COURT THAT SAID DEFENDANT, MARK A. JOHNSON'S ORIGINAL SENTENCE OF SIX (6) MONTHS AT THE OHIO STATE REFORMATORY, MANSFIELD, OHIO IS NOW ORDERED INTO EXECUTION AND THAT DEFENDANT PAY THE COST OF THIS PROSECUTION FOR WHICH EXECUTION IS AWARDED." The trial court's journal entry reinstating the original sentence made no mention of probation or restitution. I take this to mean that the court intended to vacate the probation order. It is a well settled law that the court speaks through its journal, State, ex rel. Indus. Comm. v. Day (1940), 136 Ohio St. 477, see also State v. Benson (1985), 29 Ohio App. 3d 321, and a trial transcript cannot be a substitute for a court's journal entry. Appellant's first assignment of error has merit. The trial court's transcript statement placing appellant on five years probation after reinstating appellant's original sentence should be vacated. R.C. 2951.09 provides: "Procedure against defendant; rights of citizenship restored; journal entry. "When a defendant on probation is brought before the judge or magistrate under section 2951.08 of the Revised Code, such judge or magistrate shall immediately inquire into the conduct of the defendant, and may terminate the probation and impose any sentence which might originally have been imposed or continue the probation and remand the defendant to the custody of the probation authority, at any time during the probationary period." My reading of the statute compels me to conclude that the trial court does not have the authority to reinstate an original sentence and at the same time reimpose the original probationary period. The statute is an "either/or" proposition. There is no - 6 - statutory or judicial authority on the trial court to do both. As the Ohio Supreme Court remarked in State v. McMullen, supra, "By placing a defendant on probation, the judge has afforded the benefit of a reduced sentence condition upon the defendant's efforts to reform. A defendant has no expectation of finality in the original sentence when it is subject to his compliance with the terms of his probation. In the event of a violation of probation, the original sentence does not become final but is subject to modification within the standards of state law. (Emphasis added.)" It is self-explanatory from the statute and the McMullen court that when an original sentence is reimposed, the probation granted is vacated. The state's argument that the probation is necessary to accomplish the restitution order because it allows the court to have a supervisory authority on appellant is unpersuasive. In the within case, an order of restitution cannot be made part of a probation. A restitution is a civil matter which does not amount to time in jail if a party cannot afford to pay it. See State v. Scott (1982), 6 Ohio App. 3d 39. When the court ordered a restitution, it became a debt owed to the restitutee and not subject to a prison term, but may lead to garnishments or seizure of a party's property. A probation is a continuous criminal proceeding, a violation of which brings the defendant back in jail to serve the term he would have served but for the probation. This court should not accept the state's imaginative logic that probation is necessary so that the state can supervise defendant's part of the restitution imposed by the trial court. The state cannot make itself available to be used as a private - 7 - enforcer of private debts, because of the mere fact that a state court imposed restitution, where there are other avenues available to the restitutee. Having concluded that the trial court does not have the authority to impose a full sentence and a probation, I would affirm appellant's conviction and revocation of his probation. However, I would vote to vacate the original five-year probation which, when allowed to stand, amounts to serving two sentences, in violation of the double jeopardy clause of the United States Constitution and Due Process Clause of the United States and Ohio Constitutions. .