COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72613 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ANNETTE MURCHISON : : PER CURIAM Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 8, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-339,309B JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor GEORGE RUKOVENA, Assistant Justice Center, - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: CRAIG T. WEINTRAUB Attorney at Law 620 Terminal Tower Cleveland, Ohio 44113 PER CURIAM: -2- This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of counsel. The State of Ohio appeals from the judgment of the Cuyahoga County Court of Common Pleas wherein the court granted defendant- appellee Ann Murchison's motion for suspension of further execution of sentence (shock probation) pursuant to R.C. 2947.061. For the reasons set forth below, we affirm. The facts giving rise to this appeal are as follows. On June 11, 1996, defendant-appellee was indicted, pursuant to R.C. 2913.02, for one count of theft with two specifications for prior theft offenses, a felony of the third degree. On December 2, 1996, appellee entered a plea of guilty to an amended indictment in which the specifications for the prior theft offenses were deleted, thereby constituting a felony of the fourth degree, and was sentenced on February 28, 1997, to a term of incarceration of one and one-half years. On April 8, 1997, appellee filed a motion for shock probation pursuant to R.C. 2947.061, which was granted by the trial court over objection by the state after a hearing on April 29, 1997. The state filed a notice of appeal, and its motion for leave to appeal was granted. Appellant advances a single assign- ment of error for our review. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SHOCK PROBATION PURSUANT TO R.C. 2947.061 AS THE DEFENDANT IS A REPEAT OFFENDER WITHIN THE MEANING OF RC 2929.01(A)(5) (sic). The state contends that the trial court abused its discretion when it granted shock probation to appellee because she was -3- ineligible for probation as a repeat offender. The state asserts that it is not within the discretion of the trial court to grant shock probation pursuant to R.C. 2947.061(A) when the offender is a repeat offender as defined by R.C. 2929.01(A)(3). The state then argues that because appellee had prior theft convictions for which she was sentenced on four occasions to terms of incarceration, she meets the definition of repeat offender. We do not agree. A trial judge has broad discretion in making probation determinations. State v. Jones (Oct. 3, 1996), Cuyahoga App. No. 70568, unreported, at 6. Section 2947.061 of the Ohio 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 serv- ing 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 probation upon such terms as the court determines, notwithstanding the expiration of the term of court during which such defendant was sentenced. The trial court has discretion in its determination of whether to suspend sentence and place an offender on probation. Conse- quently, shock probation is subject to the statutory limitations as enumerated in R.C. 2951.02 as follows: (A) In determining whether to suspend sentence of imprisonment and place an offender on probation or whether to otherwise suspend an offender's sentence of imprisonment pursuant to division (D)(2) or (4) of section 2929.51 -4- of the Revised Code, the court shall consider the risk that the offender will commit another offense and the need for protecting the public from the risk, the nature and circumstances of the offense, and the history, character, and condition of the offender. (B) The following do not control the court's discretionbut shall be considered in favor of placing an offender on probation or in favor of otherwise suspending an offender's sentence of imprisonment pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code (Emphasis added): * * * (8) The character and attitudes of the offender indicate that the offender is unlikely to commit another offense. Further, R.C. 2951.02 prohibits probation for repeat offend- ers: (F) An offender shall not be placed on proba- tion or otherwise have his sentence of impri- sonment 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 sec- tion 2929.01 of the Revised Code. R.C. 2929.01 defines repeat offender: (A) Repeat offender means a person who has a history of persistent criminal activity, and whose character and condition reveal a sub- stantial 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: * * * -5- (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. In this appeal, the state relies on State v. Boigner (Apr. 25, 1991), Cuyahoga App. Nos. 58635, 58636, 58637, unreported, and State v. Woods (Oct. 3, 1991), Cuyahoga App. Nos. 59109, 59110, 59111, unreported. We find those decisions not dispositive of the matter before us. In State v. Boigner, this court found without additional analysis that the prima facie evidence showed that Boigner was a repeat offender within the statute and, as such, Boigner was not entitled to shock probation. Nothing in the opinion shows us, as in the matter sub judice, that the defendant presented evidence to rebut the presumption or to show that he was not of such character and condition that there was no substantial risk he would commit another offense. In State v. Woods, this court of appeals reversed the lower court's grant of shock probation to a repeat offender, finding that the court had abused its discretion when it granted shock probation as a way to modify the defendant's sentence. This court concluded that R.C. 2947.061 does not grant the trial court authority to modify prior sentences because the penalty appears harsh. While we recognize that the court is required to find that the defendant is a repeat offender when it denies shock probation on that basis (see State v. Bush [1984], 16 Ohio App.3d 407; State v. Wood [1976], 48 Ohio App.2d 339; State v. Riddle [Feb. 11, 1994), -6- Wood App. No. 93WD010, unreported), we find that neither the statutes nor the case law requires the trial court to make specific findings when it determines that the defendant is not a repeat offender. In State v. Bush (1984), 16 Ohio App.3d 407, 409, 476 N.E.2d 692, citing State v. Wood (1976), 48 Ohio App.2d 339, 357 N.E.2d 1106, this court stated, `proof of prior convictions for theft offenses is only prima facie evidence that a defendant is a repeat offender.' State v. Jones, supra, at 4-5. Therefore, a prior conviction and sentence do not automatically disqualify such offender from probation. State v. Smith (1996), 31 Ohio App.3d 26, 27. One is deemed a repeat offender only if his or her character and condition are such that there is a substantial risk that the accused will commit another offense. State v. Bush, supra at 409; Statev. Riddle, supra. An offender is eligible for shock probation unless the court determines, as a matter of fact, based upon its evaluation of a variety of factors, that the offender's character and condition reveal a substantial risk that he will commit another offense. State v. Riddle, supra; State v. Wood, supra. The trial court, in order to make the determination of whether a particular defendant is `a person whose character and condition reveal a substantial risk that [s]he will commit another offense,' must consider all relevant evidence, including the details of the present crime, results of the pre-sentence investi- gation, and recommendations of the probation department. State v. Mankin (Dec. 13, 1985), Washington App. No. 85CA6, unreported. A -7- myriad of different variables may affect the trial court's conclusions concerning repeat offender status. State v. Smith, supra, at 27. In order to find an abuse of discretion by the trial court in its determination that this defendant was eligible for shock probation, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Here, the record reflects that the trial court, in order to determine whether appellant's character and condition revealed a substantial risk that she would commit another offense, considered relevant evidence, including the details of the present crime and the probation report, and held a colloquy with appellant as to her present condition. On these bases, the trial court did not find that appellant's character and condition revealed a substantial risk that she would commit another offense, thereby rendering her a repeat offender. Consequently, from the record before us, we cannot find that the trial court abused its discretion where it found appellant eligible for shock probation despite the fact that she may have been previously convicted of one or more theft offenses and imprisoned pursuant to a sentence for such offense. Accordingly, the decision of the trial court is affirmed. -8- This cause is affirmed. It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Commoln 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. __________________________________ JOSEPH J. NAHRA, PRESIDING JUDGE __________________________________ TIMOTHY E. McMONAGLE, JUDGE __________________________________ ROBERT E. HOLMES, JUDGE* *SITTING BY ASSIGNMENT: Robert E. Holmes, retired Justice of the Ohio Supreme Court. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .