[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

Journal EntryAS THIS CASE HAS NOT BEEN JOURNALIZED, ON SUA SPONTE RECONSIDERATION OF THIS MATTER IN LIGHT OF UNITED STATES V. KENDIS (C.A.3, 1989),883 F.3d 209, THIS COURT VACATES THE JUDGMENT ENTRY DATED DECEMBER 16, 1999, AND ON RECONSIDERATION ISSUES ITS JOURNAL ENTRY AND OPINION ON SAME DATE AS THIS SUA SPONTE ORDER.JOURNAL ENTRY and OPINIONDefendant-appellant Ellen Burnside filed her appeal from the trial court order that revoked her probation and ordered a reduced sentence into execution. In her sole assignment of error, appellant argued the trial court's action constituted a violation of the constitutional prohibition against double jeopardy. This court, when originally considering appellant's argument, agreed with her; however, this court has the inherent authority, in the furtherance of justice, to reconsider its judgment. State ex rel. LTV SteelCo. v. Gwin (1992), 64 Ohio St.3d 245. Upon reconsideration of appellant's assignment of error, this court does not find appellant's argument persuasive; therefore, the trial court's order is affirmed.

Appellant was indicted in this case in October, 1998 with two co-defendants. Count one of the indictment charged appellant with violation of R.C. 2913.51, Receiving Stolen Property. Appellant entered a plea of not guilty to the indictment and was assigned counsel to represent her.

After a few pretrials, appellant entered into a plea agreement with the state whereby, in exchange for her plea of guilty to the charge, the prosecutor would "make a recommendation at sentencing" regarding the penalty to be imposed. At the plea hearing held on December 21, 1998 the trial court explained to appellant her rights and the penalties involved, including the fact that if appellant violated the terms of a community sanction imposed, she could be "sentenced to prison." The trial court thereafter accepted appellant's plea and remanded her for a pre-sentence investigation and report and a "T.A.S.C."¹

The trial court called appellant's case for sentencing on the morning of January 25, 1999. In accord with the plea agreement, the prosecutor recommended appellant be placed under community control sanctions. The trial court noted for the record the long list of offenses for which appellant had been convicted and indicated it could not, "in good conscious (sic), put [her] out on the street."

Despite appellant's representation that she had found placement into a treatment plan on her own, the trial court stated for the record as follows: Appellant was placed on probation for three years; appellant would be placed in "inpatient drug treatment, ISP supervision"; appellant would have a "TASC evaluation"; upon appellant's release from the facility, appellant would maintain full-time, verifiable employment and complete twenty-five hours of community service; and, if appellant violated her sanctions, she would be sentenced to a term of incarceration of eleven months. The journal entry of sentence, filed on January 28, 1999, indicated appellant was placed under the supervision of the "adult probation department" and was "remanded to the county jail until bed is available for in-patient treatment." Appellant also was ordered to "report to the probation department."

On February 2, 1999 the trial court conducted a hearing in appellant's case, stating that appellant's probation officer had brought to the court's attention appellant's admission to the officer on the previous day that she had been sentenced on the afternoon of January 25, 1999 on another case in Akron.

The trial court stated for the record its position that in a case such as appellant's, it ordinarily would not have permitted appellant to be placed on probation but, based upon the representations of appellant and her attorney, it had done so. The court further stated that although appellant had violated none of the actual terms set forth for her probation, the trial court believed, nevertheless, it had been "mislead (sic)" as to "a material factor" in its decision regarding appellant's sentence. The trial court indicated appellant's failure to notify either her attorney or the court about the Akron offense prior to her sentencing led the court to conclude she was not a proper candidate for probation. The trial court therefore terminated appellant's probation. In ordering appellant to serve her sentence, however, the trial court reduced the term of incarceration to eight months.

Appellant filed a timely appeal from what she labels as the trial court's order of "re-sentencing." She presents a single assignment of error for review, as follows:

ELLEN BURNSIDE WAS DEPRIVED OF HER LIBERTY WITHOUT DUE PROCESS OF LAW AND DENIED HER CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY, WHEN THE TRIAL COURT RESENTENCED HER AFTER SHE HAD BEGUN SERVING HER ORIGINAL SENTENCE.

Appellant asserts the trial court's order was improper, contending that since she had been remanded to the county jail, she had begun to serve her sentence and, therefore, the trial court's action violated the constitutional prohibition against double jeopardy. Appellant's assignment of error lacks merit.

A review of the record reveals that although the trial court called its action a "re-sentencing," it actually proceeded in accordance with R.C. 2951.09. This section permits a trial court, "[w]hen a defendant is brought before the judge * * * under section 2951.08" to "immediately * * * inquire into the conduct of the defendant." That section further permits a trial court to "terminate the probation" and to impose "any sentence that originally could have been imposed." Crim.R. 32.3 outlines the procedure a trial court must follow in revoking an order of probation. Appellant argues neither that the trial court failed to conduct a probation revocation hearing nor that the trial court failed to follow proper procedure in ordering and conducting the hearing.State v. Thomason (Feb. 23, 1995), Cuyahoga App. No. 67012, unreported; cf., In re Zilba (1996), 110 Ohio App.3d 258.

Clearly, appellant's. probationary period had begun on January 25, 1999. Thomason, supra. Hence, there had been no commencement of an execution of a sentence. Appellant's initial detention was a part of the trial court's order; her placement in jail was only incidental to that portion of the probation order that mandated "in-patient treatment." Appellant also was under the jurisdiction of the probation department; thus, her probation officer had the authority under R.C. 2951.08 to notify the judge about appellant's admission concerning the Akron offense.

Probation is a privilege, not a right, and, as such, it is within a trial court's discretion to either grant or revoke probation. State v. Theisen (1957), 167 Ohio St. 119; State v.McKnight (1983), 10 Ohio App.3d 312. Thus, a trial court's decision may not be disturbed on appeal if the record contains evidence of a substantial nature justifying revocation. State v. Scott (1982), 6 Ohio App.3d 39, 41. Relevant to this court's review of the substantial nature of the evidence presented to the trial court in this case are two Ohio Supreme Court decisions and a consideration of the theory of "fraud on the court."

In State v. Thompson (1987), 33 Ohio St.3d 1 at 7, citingState v. Deever (1980), 64 Ohio St.2d 335, the supreme court reiterated its position that probationers hold constitutional rights that are more limited than those of other people simply because probationers are considered to be in the constructive custody of the state at all times. See, also, State v. Theisen, supra; Statev. Scott, supra. This court, therefore, is required to be cognizant of that fact in addressing appellant's assignment of error. Moreover, for double jeopardy purposes, the supreme court made a distinction in State v. Draper (1991), 60 Ohio St.3d 81, between probationers who receive that status in lieu of serving any portion of a term of incarceration and those persons who are granted probation after a portion of their sentence of incarceration is served.

Brook Park v. Necak (1986), 30 Ohio App.3d 118, upon which appellant relies in her appellate brief to support her argument the trial court's order was improper, was decided prior to the aforementioned supreme court decisions. Furthermore, its facts are distinguishable since Necak had already served a portion of his term of incarceration before being placed on probation. Appellant herein, however, was detained only because the trial court's order of probation mandated she be placed in "in-patient treatment." Since the probation department had jurisdiction over appellant, she had not begun serving a term of incarceration.

This court's decision in State v. Thomason, supra, is more recent than Necak and, in addition, addressed a defendant placed immediately upon probation. Thomason is, therefore, more appropriate than Necak to the facts of this case. This court determined inThomason that a defendant who misrepresents facts during a sentencing hearing properly may be held to be an inappropriate candidate for probation.

One of the cases this court relied upon in Thomason, viz.,United States v. Kendis (3d Cir. 1989), 883 F.2d 209; moreover, directly addresses the situation faced by the trial court herein. In Kendis, the defendant, upon entry of a guilty plea to one count of bank fraud, agreed to make restitution. He made partial restitution by the time of his sentencing; thus, the district court suspended nearly all of the defendant's five-year sentence. However, when the district court subsequently was informed that the defendant's "restitution" had been made from former clients' funds the defendant had converted to his own use, the district court terminated the defendant's probation. This decision was upheld on appeal; the federal appeals court explained its rationale as follows:

[1] On appeal Kendis contends first that the district court abused its discretion in revoking his probation on Kendis I because the offense on which the district court relied for such revocation occurred prior to his sentencing and hence while he was not on probation. We reject Kendis' argument. In United States v. Camarata, 828 F.2d 974, 977 n. 5 (3d Cir. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1036. 98 L.Ed.2d 1000 (1988), we recognized that some courts had adopted the fraud on the court exception to the general rule that revocation of probation is generally based on acts occurring after sentencing. See also United States v. Veatch, 792 F.2d 48, 51 (3d Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986). We are now faced with the issue directly, and we also adopt the principle that revocation of probation is permissible when defendant's acts prior to sentencing constitute a fraud on the court.

[2] Kendis argues, however, that his action in using clients' converted funds to pay restitution did not constitute a fraud on the court because there was no concealment of the crime and the court was aware of the possibility of other potential victims of Kendis' illegal activity. In this case, the record shows that Kendis relied heavily on his act of restitution to persuade the district court to give him a relatively light prison sentence in Kendis I and that Kendis failed to reveal that restitution had been made with clients' money. Revocation of probation under the fraud on the court theory was thereafter appropriate under these circumstances. See United States v. Jurgens, 626 F.2d 142, 144 (9th Cir. 1980)

(Emphasis added.)

Similarly, although it was merely a "sin of omission," appellant's affirmative failure in this case to reveal to the trial court the pending charge against her prior to being sentenced amounted to a fraud on the court.

It is appropriate to note the record does not indicate appellant was incarcerated after her December 21, 1998 plea in the Cuyahoga County Court of Common Pleas. Thus, appellant had the opportunity to commit the Akron offense, and the time to be charged and to enter a plea to that charge. Appellant could thereafter appear for her sentencing in Cleveland on the morning of January 25, 1999, neglect to immediately report to the probation department, then on the same afternoon appear for her sentencing in Akron. Someone with appellant's extensive experience with the criminal justice system must have known she was required to disclose the pending Akron case during her Cleveland sentencing hearing.

Since one of the primary statutory conditions of probation is that the probationer must "abide by the law," the trial court's decision to reconsider its grant of probation to appellant was entirely justified. R.C. 2951.02(C); State v. Shyrock (1949),86 Ohio App. 210, at headnote; State v. O'Meara (1987), 35 Ohio App.3d 95; see, also, State v. McCoy (Nov. 17, 1992), Franklin App. No. 92AP-818, unreported; United States v. Williams (6^th Cir. 1994),15 F.3d 1356. Simply put, appellant's concealment of the Akron arrest was an objective manifestation "sufficient to suggest that [s]he was a poor risk to complete probation successfully." State v.Henderson (1989), 62 Ohio App.3d 848 at 854; see, also, e.g. Stateex rel. Lipschutz v. Shoemaker (1990), 49 Ohio St.3d 88. R.C.2951.09 specifically mandates a trial court "shall inquire into the conduct of the defendant" when presented with the question of whether to continue the defendant's probation.

Once appellant's probation officer had notified the trial court, pursuant to R.C. 2951.08, of appellant's admission she committed another offense of which the trial court had been unaware at the time of sentencing, the trial court was within its authority to afford appellant a hearing on the matter. To hold otherwise places an unfair burden upon trial courts to inquire in every case, prior to imposing sentence, as to the defendant's forthrightness. The result is to encourage sharp practices that have no place in the serious business of criminal justice and to undermine the respect for the trial courts.²

On this record, the trial court determined "the ends of justice" and "the good conduct of the defendant" did not warrant an order of probation. R.C. 2951.09. Since the trial court was within its statutory authority to revoke appellant's probation and to order a sentence of eight months into execution, its action did not violate the constitutional prohibition against double jeopardy.State v. Thomason, supra; R.C. 2929.14(A)(5); State v. McMullen (1983), 6 Ohio St.3d 244; cf., State v. Meister (1991), 76 Ohio App.3d 15.

Accordingly, upon reconsideration, appellant's assignment of error is overruled.

Appellant's conviction and sentence are 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 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.

JOHN T. PATTON, J CONCURS (See separate opinion.)

TIMOTHY E. McMONAGLE, P.J. DISSENTS (See separate opinion.)

________________________ JUDGE, KENNETH A. ROCCO

¹ Quotes are taken from the transcripts of the hearings held in the trial court.

² Clearly, that is what occurred in Necak, since the trial court discovered that Necak's attorney had made the misrepresentation; however, nothing in the facts suggested Necak had either authorized or encouraged his attorney's action.

DISSENT

Apparently the term "final judgment" has no meaning for either the trial court or the majority in this case. First the trial court, in clear violation of appellant's right against double jeopardy, resentenced appellant after she had commenced execution of her sentence. Now this court, purportedly in "the furtherance of justice," has "sua sponte" reconsidered our decision reversing the trial court, even though the case law upon which the majority relies was addressed by the dissent in our original opinion and presumably, considered and rejected by the judge who now joins the majority. Accordingly, I dissent.

In its attempt to justify the trial court's re-sentencing, the majority contends that the trial court sentenced appellant to probation and then subsequently properly revoked her probation in a probation revocation hearing. In its journal entry dated January 28, 1999, the trial court set forth the sentence imposed at the January 25, 1999 sentencing hearing as follows:

The court finds that a community control sanction will adequately protect the public and will not demean the seriousness of the offense. It is therefore ordered that the defendant is sentenced to 3 years of community control, under the supervision of the adult probation department.

Defendant is remanded to Cuyahoga County jail until bed is available for in-patient treatment; * * * sheriff to transport * * * *; defendant to be supervised by intensive special probation' to be evaluated by TASC; to maintain full-time employment; to perform 25 hours of court community' work service.

Violation of the terms and conditions may result in more restrictive sanctions, a prison term of 11 months or extensions, as provided by law.

The defendant is ordered to report to the probation department, pay costs and standard probation fee. (Emphasis added.)

Thus, contrary to the majority's contention, the trial court did not sentence appellant to probation; it sentenced her pursuant to R.C. 2929.15 to community control sanctions, albeit under the supervision of the adult probation department.

Moreover, contrary to the majority's contention, the trial court did not conduct a proper revocation hearing before re-sentencing appellant to prison. First, the record reflects that the hearing was held in violation of appellant's due process rights under the Fourteenth Amendment to the United States Constitution. In Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756,36 L.Ed.2d 656, the United States Supreme Court set forth a series of procedural requirements for revocation hearings. Among these provisions, the Supreme Court mandated that a probationer shall be afforded "* * * written notice of the claimed violations of [probation] * * *." Id. at 786, citing Morissey v. Brewer (1972),408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. Here, there is no statement of violation from the probation department in the record, undoubtedly because, as the trial judge stated at the re-sentencing hearing, appellant "hasn't violated probation (sic) under the terms that I gave her."

Moreover, in its journal entry dated February 4, 1999 regarding the hearing, the trial court makes it abundantly clear that it is re-sentencing appellant, not revoking her community control sanctions:

Re-sentencing from January 25, 1999. Defendant arrested January 22, 1999 by Fairlawn Police Department for theft, possession of criminal tools, drug paraphernalia and child endangering.

Defendant plead guilty to receiving stolen property ORC 2913.51 F-5 as charged in Count 1 of the indictment. Probation would demean the seriousness of the offense. Defendant was arrested by Summit County three days prior to sentencing. Defendant has an extensive criminal record.

Defendant is sentenced to Ohio Reformatory for Women, Marysville, Ohio for a term of 8 months and to pay costs. Defendant given 9 days jail credit for time served. Sheriff to transport. (Emphasis added.)

Thus, the record and the trial court's journal entry clearly reflect that the hearing was nothing more than a re-sentencing by a trial judge who "acquired new derogatory information" about appellant and, on the basis of this information, improperly increased her sentence.¹ City of Brook Park v. Necak (1986),30 Ohio App.3d 118.

The Double Jeopardy Clauses of the state and federal Constitutions protect a defendant's right to finality for an acquittal and prevent multiple punishments for the same conviction. Id. at 119, citing Benton v. Maryland (1969), 395 U.S. 784, 795-796. Courts may re-sentence a defendant who has not begun to serve his or her sentence to a more severe sentence without violating the multiple-sentence protections of the Double Jeopardy Clause because, before its execution, a sentence lacks the constitutional finality of a verdict of acquittal. State v. Meister (1991), 76 Ohio App.3d 15. 17; State v. Vaughn (1983), 10 Ohio App.3d 314, 316; Columbus v.Messer (1982), 7 Ohio App.3d 266, 268. It is well established, however, that once a valid sentence has been executed, a trial court has no power to modify the sentence except as provided by the General Assembly. State v. Hayes (1993), 86 Ohio App.3d 110, 112, citing State v. Addison (1987), 40 Ohio App.3d 7; Meister, supra.

R.C. 2929.15(A)(2)(b) provides that the person or entity supervising an offender who has been placed on community control sanctions may report the offender to the sentencing court "if the offender violates any of the sanctions or the mandatory condition imposed under division (C)(1)(b) of section 2951.02 of the Revised Code."² R.C. 2929.15(B) provides sentencing options for an offender who has violated the terms of his or her community control sanction:

If the conditions of a community control sanction or the mandatory condition imposed under division (C)(1)(b) of section 2951.02 of the Revised Code is violated, the sentencing court may impose a longer time under the same sanction * * *, may impose a more restrictive sanction * * *, or may impose a prison term on the offender * * *. (Emphasis added.)

Here, appellant's failure to inform the trial court of her arrest and subsequent plea in Summit County was not a violation of the terms of her community control sanctions. The trial court's order dated January 28, 1999 sentenced appellant to thirty-six months of community control sanctions on the conditions that she undergo in-patient drug treatment, obtain and maintain full-time employment when released from drug treatment, perform twenty-five hours of community service and pay court costs and a probation supervision fee. Nowhere during the re-sentencing hearing nor in the journal entry did the trial court advise appellant that her community control sanctions were conditioned upon informing the court, prior to sentencing, of all of her prior criminal convictions. Indeed, at the hearing, the trial court expressly found that appellant had not violated any of the community control sanctions he had earlier imposed. Accordingly, the trial court was without statutory authority to revoke appellant's community control sanction and increase her sentence by ordering her to serve eight months of incarceration.

This court recently addressed the same issue in State v. Hooks (1998), 128 Ohio App.3d 750. In Hooks, the trial court sentenced the defendant, a sex offender, pursuant to R.C. 2929.15 to five years of community control sanctions with various conditions. Subsequently, the defendant's probation officer raised concerns with the trial court that the defendant and his wife had rented the upstairs apartment of their house to a family with two young daughters. After conducting a hearing, the trial court ordered that appellant vacate his residence within seven days.

This court reversed the trial court's post-sentencing order on appeal. Noting that "the record [was] devoid of any finding that appellant violated his community control sanctions," we held that the trial court's order "constituted a clear violation of double jeopardy restrictions." Id. at 753. We stated:

R.C. 2929.15(B) authorizes the post-sentencing imposition of more restrictive community control sanctions only if the original probationary conditions have been violated.

In the instant case, the post-sentencing order requiring appellant to vacate his residence constituted an additional punishment for the same conviction. The trial court, by imposing an additional sanction, increased appellant's punishment after execution of his original sentence to community control sanctions had commenced. Id.

To avoid the clear import of the double jeopardy restriction, however, the majority contends that the trial court properly re-sentenced appellant because her sentence had not yet commenced into execution. In State v. Thomason (Feb. 23, 1995). Cuyahoga App. No. 67012, unreported, which the majority relies upon to support its position that a defendant who misrepresents facts during a sentencing hearing may properly be held to be an inappropriate candidate for probation, this court found that a defendant's sentence of probation "[goes] into execution immediately upon journalization of the trial court's sentencing order." Id. Curiously, the majority ignores this part of the opinion and asserts that appellant had not yet begun serving her sentence on February 2, 1999, when she was re-sentenced, because she was in the county jail, waiting transfer to an in-patient drug facility and this detention was only. "incidental" to the rest of the trial court's sentencing order. The majority is wrong: appellant's sentence commenced execution on January 28, 1999, when the trial court journalized its entry reflecting the sentence it had imposed. Once the execution of that sentence began, the trial court was without jurisdiction to reconsider and impose a higher sentence upon appellant, except as provided by statute.

Accordingly, in Brook Park v. Necak (1986), 30 Ohio App.3d 118, this court vacated the trial court's new sentence imposed without statutory authority after the defendant had commenced execution of the trial court's original sentence. In Necak, the defendant pled guilty to driving under the influence of alcohol. The trial court sentenced him to thirty days in jail and payment of a $225 fine and court costs. The court suspended twenty-seven days of the jail term, and placed the defendant on active probation for one year on the condition that he participate in an alcohol rehabilitation program. Six weeks later, after learning that defendant's counsel had misrepresented to the court that defendant's previous conviction did not involve an alcohol-related moving violation, the court recalled the defendant to reconsider its previous sentence. The court vacated its original sentence, and then re-sentenced the defendant to sixty days in jail and a fine of $225 and costs. Id. at 119.

This court reversed, on appeal, finding that the trial court had modified a legally proper sentence without statutory authority after the defendant had commenced execution of his sentence. We stated:

The defendant's right to expect finality precluded such action. Misinformation from defendant's counsel did not make the original sentence unlawful. If the court could reconsider its sentence whenever it acquired new derogatory information, the defendant would have no assurance of finality. (Citation omitted.) Id. at 120.

The majority's astounding assertion that Necak is not controlling in this case because Thomason "is more recent thanNecak" ignores the Ohio Supreme Court Rules for the Reporting of Opinions. Specifically, S.Ct.R.Rep.Op. 2(G)(2) states that unreported appellate opinions may be considered for their persuasive effect, but reported opinions "shall be considered controlling authority for all purposes in the judicial district in which they were rendered * * * until [the] opinion is reversed or modified * * *." Thus, as agreed by the majority in our original opinion, Necak, notThomason, is controlling in this case.

Moreover, the majority's conclusion that Necak is distinguishable from this case because Necak had served a portion of his term of incarceration before being placed on probation is erroneous. What matters is whether a defendant's sentence — whether community control sanctions, probation or incarceration — has commenced execution. Once it has, a trial court may only re-sentence the defendant pursuant to statute.

Apparently conceding that appellant did not violate any of the terms of her community control sanctions, and that the trial court was without statutory authority to revoke her community control sanctions, the majority reasons that the trial judge properly resentenced appellant because she "misled" him at the sentencing hearing by not telling him that she had been arrested and pled guilty in Summit County shortly before sentencing. United Statesv. Kendis (3d Cir. 1989), 883 F.2d 209, which the majority quotes extensively to support its conclusion, is easily distinguishable from this case, however.

In Kendis, the defendant persuaded the district court to give him a relatively light prison sentence by convincing the court that he had made restitution to the victims of his first crime but neglecting to inform the court that the restitution had been made with other clients' money. Thus, the court relied upon Kendis' representations regarding his acts of restitution in deciding what sentence to impose.

Here, however, the record is devoid of any indication that either appellant or her defense counsel persuaded, the trial judge to sentence appellant to community control sanctions or that her failure to inform him about her conviction in Summit County was influential in the trial judge's decision. Indeed, the record demonstrates that the trial judge relied upon the recommendation of the prosecutor to sentence appellant to community control sanctions, despite her extensive criminal background:

DEFENSE COUNSEL: Miss Burnside is before the Court, and she apologizes for the crime that caused her to be placed before this Court and requests that the Court place her on community control sanctions. We discussed this with the prosecutor and the prosecutor also agrees or would recommend to the court she be placed on community control sanctions. * * * She would also like to address the court.

* * *

THE COURT: What do you wish to say before I sentence you?

APPELLANT: I would like to get some help.

THE COURT: Yes.

APPELLANT: I have been to jail before.

THE COURT: You have?

APPELLANT: Yeah.

THE COURT: Yes. And?

APPELLANT: I would like to get some kind of drug treatment, some kind of help. The program that — I hooked up finally with a program. They can take me today at 3:00. It's like an inpatient called Stella Maris.

THE COURT: The probation authorities will determine how to deal with you, or the alternative is to send you back to the penitentiary.

The court has before it a presentence investigation report and you have a colorful history. 1991 petty theft in Fairview Park, shoplifting nine months later in North Olmsted, two months later in Avon Lake complicity to theft, six months later, Parma Heights, theft, five days later, North Olmsted, theft, several months later, Cleveland, drug abuse. This brings us to October '92. February '93, Garfield Heights, grand theft, '93, Cuyahoga County, drug abuse, April-May of '93, Brooklyn, Ohio, grand theft, '95, Middleburg Heights — shall I go on?

APPELLANT: No.

THE COURT: Drug abuse, trafficking, drug abuse, grand theft. I cannot, in good conscious (sic), put you out on the street.

APPELLANT: That is why I got myself into this treatment program. Today they will take me at 3:00.

THE COURT: The Court will deal with you through better channels. I'm going to place you inpatient drug treatment, ISP supervision. You're to have a TASC evaluation, you're to maintain full-time, verifiable employment after you get out of the bed.

APPELLANT: I have a job, your Honor.

THE COURT: To obtain and maintain full-time, verifiable employment. This is my turn to speak now. You're required to perform 25 hours of court community service and, of course, if you don't you are going to go to the penitentiary.

I, therefore, am placing you on community control sanctions with the proviso if you violate your community control sentence you will be sentenced to the Ohio State Reformatory for Women for a period of 11 months. The period of your probation is 36 months.

DEFENSE COUNSEL: Thank you.

THE COURT: Good luck to you.

I acknowledge, as the majority does, that probationers hold constitutional rights that are more limited than those of other people. See State v. Thompson (1987), 33 Ohio St.3d 1, 7. Nevertheless, they are entitled to assume that a judge will abide by the law when imposing a sentence for a criminal conviction. Because the trial judge did not follow the law when he re-sentenced appellant to prison, I would sustain appellant's assignment of error and reverse the trial court's decision.

¹ Curiously, the majority contends that the trial court's new sentence of eight months incarceration was a "reduced sentence."

² R.C. 2951.02(C)(1)(b) provides that "during the period of the nonresidential sanction, the offender shall abide by the law * * *."

CONCURRING OPINIONJustice Frankfurter wrote, "[w]isdom too often never comes, and so one ought not to reject it merely because it comes late."Henslee v. Union Planters Nat. Bank Trust Co. (1949),335 U.S. 595, 600 (Frankfurter, J., dissenting). My initial decision to reverse the court's order revoking probation stemmed from my belief that Brookpark v. Necak (1986), 30 Ohio App.3d 118, controlled the disposition of this appeal. Upon further reflection, I now respectfully conclude that Necak, while still good law as relates to the question of double jeopardy, is not dispositive for the reasons stated in the lead opinion. I write separately to stress my belief that Burnside's intentional failure to inform the court of her intervening conviction occurring just days after her guilty plea in the instant case, but before sentencing, constituted a fraud upon the court that warranted the court's decision to revoke community controlled sanctions and impose jail time.

We briefly touched upon the fraud issue in Necak when it appeared a presentence report relied upon by the sentencing court contained information that Necak had been convicted of a driving offense in 1979. Necak's counsel reportedly denied that this conviction involved an alcohol-related moving violation, but the court later obtained records which indicated otherwise. The court then vacated its previous sentence and imposed a longer jail term. Deciding the case on double jeopardy grounds, we nonetheless noted the potential fraud upon the court by stating, "we express no opinion whether the court had reason to punish defendant's counsel." 30 Ohio App. 3d at 120.

The fraud in this case did not stem from defense counsel, but from Burnside herself who failed to inform the court that she had been convicted in Summit County of a drug offense in the interval occurring just after her guilty plea in this case and her sentencing on that guilty plea. Information about the Summit County offense was particularly important because the court indicated at sentencing that it would not normally consider Burnside a candidate for community controlled sanctions, but had done so based on representations from Burnside and her attorney. Burnside's failure to inform the court brings this case squarely within State v.Thomason (Feb. 23, 1995), Cuyahoga App. No. 67012, unreported andUnited States v. Kendis (C.A.3, 1989), 883 F.2d 209. As the lead opinion points out, the failure to inform the court of the Summit County conviction was an act of omission, not commission. But it does not matter. As in Kendis, where the sentencing court "relied heavily" on alleged acts by Kendis, Burnside knew full well that the court would not have imposed community controlled sanctions but for representations from her and her attorney. Burnside's failure to inform the court of the intervening conviction amounted to anaffirmative fraud upon the court.

It is significant that the unreliable information forwarded to the court in Necak did not come from Necak himself, but his attorney. Misinformation coming from an attorney does not suggest that harsher sanctions should be imposed upon a client. However in this case, Burnside was solely responsible for failing to inform the court of information relevant to her sentencing. The court recognized this fact by noting on the record that it believed it had been misled when ordering community controlled sanctions. A similar situation existed in Kendis, where the Third Circuit Court of Appeals noted that Kendis himself perpetrated the fraud upon the court.

For these reasons, I respectfully conclude Necak no longer applies to this case, and join the lead opinion.