COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74774 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : DARRELL TABOR : OPINION : Defendant-Appellant : : PER CURIAM Date of Announcement of Decision: DECEMBER 3, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-357273 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender DARIN THOMPSON, Assistant Public Defender 1200 West Third St., N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Defendant-appellant Darrell Tabor appeals from the trial court's imposition of a community control sanction requiring him to serve his probation in Cuyahoga County rather than in his place of residence, Franklin County, following his guilty plea for drug abuse (R.C. 2925.11). We find no error and affirm. Defendant was indicted on one count of drug abuse, a violation of R.C. 2925.11(C)(4)(a), a fifth degree felony. He pled guilty to the indictment on May 19, 1998. During sentencing on June 19, 1998, the trial court considered recidivism factors (a prior drug abuse conviction and testing positive for drugs after his indictment in this case). These findings would allow for a prison sentence. However, rather than sentence defendant to a prison term, the court gave defendant the following choice: either a one year term of imprisonment at Lorain Correctional Facility or a one year community control sanction in Cuyahoga County. Defendant chose the community control sanction and was sentenced pursuant to R.C. 2929.13(B)(2)(b). His sentence required that he reside within Cuyahoga County and is prohibited from leaving the County without the court's permission. Defendant's motion for reconsideration was denied by the trial court on June 22, 1998. Defendant also filed a petition for writ of habeas corpus on June 23, 1998, which this Court dismissed on July 30, 1998. Defendant pursued a timely appeal herein. -3- Defendant's sole assignment of error states as follows: I. IMPOSING UPON APPELLANT (A RESIDENT OF FRANKLIN COUNTY, OHIO) AS A CONDITION OF PROBATION FOR DRUG POSSESSION A REQUIREMENT THAT HE MAINTAIN RESIDENCE IN CUYAHOGA COUNTY, OHIO, CONSTITUTED AN ABUSE OF DISCRETION BY THE TRIAL COURT WHERE THAT RESIDENCY REQUIREMENT: (1) WAS NOT REASONABLY RELATED TO REHABILITATING APPELLANT; (2) HAD NO RELATIONSHIP TO THE CRIME OF WHICH APPELLANT WAS CONVICTED; AND (3) WAS NOT RELATED TO CONDUCT WHICH WAS CRIMINAL OR REASONABLY RELATED TO FUTURE CRIMINALITY. Defendant asserts that the trial court's requirement that he maintain residence in Cuyahoga County during the term of his community control sanction was an abuse of discretion. He asserts that this requirement was not required as a matter of law and that he should be permitted to serve his sanction in Franklin County where he currently resides. In State v. Ditterline (September 5, 1997), Washington App. No. 96CA47, unreported, the court stated: The Ohio General Assembly clearly left it to the sound discretion of the trial court to determine whether prison or a community control sanction is more consistent with the principles and purposes of R.C. Chapter 2929. Its decision on that point should not be reversed absent a showing of an abuse of discretion. An abuse of discretion is more that an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d 331; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894; State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. In order to have an abuse of discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of -4- reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1. Moreover, when applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe I (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181; Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301. . . . We find that the trial court did not abuse its discretion in requiring that defendant maintain residence in Cuyahoga County during the term of his community control sanction. R.C. 2925.11(C)(4)(a) states as follows: Except as otherwise provided in division (C)(4)(b), (c), (d), (e), or (f) of this section, possession of cocaine is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender. R.C. 2929.13(B)(1) states in pertinent part: Except as provided in division (B)(2), (E), (F), or (G) of this section, in sentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply: * * * (g) The offender previously served a prison term. (h) The offender previously was subject to a community control sanction, and the offender committed another offense while under the sanction. R.C. 2929.13(B)(2)(a) further states: Except as provided in division (E), (F), or (G) of this section, if the court makes a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), or (h) of this section and if the court, after considering -5- the factors set forth in section 2929.12 of the Revised Code, finds that a prison term is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code and finds that the offender is not amenable to an available community control sanction, the court shall impose a prison term upon the offender. In this case, the court found that defendant had previously been convicted of drug abuse and served six months in Lorain Correctional Facility. (Tr. 2). Thus, a finding in accordance with R.C. 2929.13(B)(1)(g) was made. The court further found that, just a month prior to this hearing, defendant tested positive for drug use when he was tested on May 19, 1998. (Tr. 4). Pursuant to R.C. 2929.13(B)(2)(a), these recidivism factors justified the imposition of a prison term rather than a community control sanction. R.C. 2929.15(A)(2)(a) deals with the imposition of community control sanctions insofar as pertinent and states: If a court sentences an offender to any community control sanction or combination of community control sanctions authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, the court shall place the offender under the general control and supervision of a department of probation in the county that serves the court for purposes of reporting to the court a violation of any of the sanctions or the mandatory condition imposed under division (C)(1)(b) of section 2951.02 of the Revised Code. Alternatively, if the offender resides in another county and a county department of probation has been established in that county or that county is served by a multicounty probation department established under section 2301.27 of the Revised Code, the court may request the court of common pleas of that county to receive the offender into the general control and supervision of that county -6- or multicounty department of probation for purposes of reporting to the court a violation of any of the sanctions, or the mandatory condition imposed under division (C)(1)(b) of section 2951.02 of the Revised Code subject to the jurisdiction of the trial judge over and with respect to the person of the offender, and to the rules governing that department of probation. It clearly appears from the above quoted language that the trial court had discretion in how the sentence imposed upon the defendant would be carried out. The above section sets forth that if the offender resides in another county, the court may request the common pleas court of that county to receive the offender into its control and supervision. The general rule of statutory construction is that the word may be construed as optional, permissive, or discretionary. Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 107. Accordingly, in the absence of the imposition of a prison sentence, it is within the discretionary power of the trial court to determine where the defendant is to serve his community control sanction. It is clearly not within a criminal defendant's discretion to choose where his sentence is to be served for his own benefit and convenience. In the instant case, the trial court made the necessary findings to sentence defendant to a prison term, but rather than do so, defendant was given the choice of submitting to community control sanctions or going to prison. An important condition for the community control sanctions, however, known to both defendant and his counsel, was the condition that he serve his community control sanction in Cuyahoga County. Defendant then voluntarily -7- chose to change his residence and serve his community control sanction in Cuyahoga County rather than go to prison. Under the circumstances, we find no abuse of discretion by the trial court in exercising its power to require defendant to serve his community control sanction within the territorial jurisdiction of the court. Defendant's sole assignment of error is overruled. Judgment affirmed. -8- 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 court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE TERRENCE O'DONNELL, JUDGE 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 .