[Cite as State v. Briggs,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99980

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

LOVELL BRIGGS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-476291

BEFORE: Blackmon, P.J., McCormack, J., and Stewart, J.

RELEASED AND JOURNALIZED: February 27, 2014 ATTORNEYS FOR APPELLANT

Eben McNair McNair Legal Services, L.L.C. 8309 Wyatt Road Broadview Heights, Ohio 44147

Christopher G. Thomarios 75 Public Square Suite 800 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Gittel L. Chaiko Assistant County Prosecutor 9th Floor Justice Center Cleveland, Ohio 44113

PATRICIA ANN BLACKMON, P.J.: {¶1} Appellant Lovell Briggs (“Briggs”) appeals the trial court’s imposition of

five years community control sanctions after he obtained judicial release on a six-month

probation violation sentence. He assigns the following error for our review:

The trial court erred as a matter of law by extending appellant’s aggregate community control sanction beyond five years.

{¶2} Having reviewed the record and pertinent law, we affirm Briggs’s sentence.

The apposite facts follow.

{¶3} On January 20, 2006, the Cuyahoga County Grand Jury indicted Briggs for

one count of failure to pay child support. Briggs pleaded guilty to the indictment and

was sentenced to five years of community control sanctions. The conditions for

community control sanctions were: 1) abide by the rules and regulations of the probation

department, 2) random drug testing, and 3) pay child support in the amount of $153 per

month. He was advised that the violation of any of the conditions “may result in more

restrictive sanctions, or a prison term of six months as approved by law.”

{¶4} On November 21, 2008, Briggs was found to be in violation of his

community control sanctions. The court, nonetheless, continued Briggs’s community

control sanctions. In May 2009, the trial court issued a capias for Briggs because he

failed to appear for his probation violation hearing after he again violated the terms of his

community control sanctions. Briggs turned himself in to the court on February 25,

2010. {¶5} After a hearing was conducted on March 12, 2010, the trial court concluded

that Briggs had violated his community control sanctions and sentenced him to six

months in prison.

{¶6} On April 20, 2010, Briggs filed a motion for judicial release. After

conducting a hearing, the trial court granted Briggs’s motion on April 30, 2010. The

conditions of his judicial release were, 1) he was placed on five years of community

control sanctions, 2) had to submit to random drug testing, and 3) has to maintain

employment. Briggs did not appeal from this order.

{¶7} On July 27, 2012, a warrant was issued for Briggs for failing to abide by the

terms and conditions of community control sanctions. On August 18, 2012, Briggs was

brought into custody and on August 27, 2012, the trial court found that Briggs had

violated the terms of his community control sanctions. The court, however, continued

his community control sanction with the prior conditions.

{¶8} On December 13, 2012, the trial court issued another capias for Briggs for his

failure to comply with the conditions of his probation. Briggs was brought into custody

on May 10, 2013, and at a hearing conducted on May 15, 2003, the trial court found

Briggs violated the conditions of his community control sanctions. The trial court again

continued his community control sanctions.

{¶9} At the hearing, Briggs’s counsel argued the court could not place him on

community control sanctions because his original community control sanctions were

imposed on January 20, 2006 and, even including the capiases, more than five years, had

elapsed. The trial court stated on the record that it believed the original community control sanction was irrelevant because the current community control sanction was

associated with his judicial release on April 30, 2010.

Community Control Sanctions

{¶10} In his sole assigned error, Briggs argues the trial court erred by continuing

his community control sanction because the court was without jurisdiction to continue the

community control sanction after five years had elapsed from his 2006 conviction.

{¶11} Briggs relies on R.C. 2929.15(A)(1) for his contention that the trial court’s

continuation of his community control sanction was invalid because it exceeded the

five-year time limitation. R.C. 2929.15(A)(1) states in pertinent part:

If in sentencing an offender for a felony the court is not required to impose

a prison term, a mandatory prison term, or a term of life imprisonment upon

the offender, the court may directly impose a sentence that consists of one

or more community control sanctions. * * * The duration of all community

control sanctions imposed upon an offender under this division shall not

exceed five years.

{¶12} Thus, the above section deals with the trial court’s initial sentencing of the

defendant. However, in the instant case, the trial court continued the community control

sanction that was imposed as a condition of his judicial release, not his original

conviction. R.C. 2929.20(K) states:

If the court grants a motion for judicial release under this section, the court

shall order the release of the eligible offender, shall place the eligible

offender under an appropriate community control sanction, under appropriate conditions, and under the supervision of the department of

probation serving the court and shall reserve the right to reimpose the

sentence that it reduced if the offender violates the sanction. * * * The

period of community control shall be no longer than five years.

{¶13} Thus, each provision has the five-year limitation, but as it pertains to the

subject matter of each of the statutory sections. R.C. 2929.15 deals with imposing

community control sanctions as part of the original sentence, while R.C. 2929.20 deals

with imposing community control sanctions as a condition of judicial release.

{¶14} Courts have consistently found that R.C. 2929.15 and R.C. 2929.20 are

independent statutes and serve different purposes. See State v. Mann, 3d Dist.

Crawford No. 3-03-42,

; State v. Durant, 5th Dist. Stark No.

2005CA00314,

. The court in State v. Jenkins, 4th Dist. Scioto

No. 10CA3389,

, distinguished the statutes, stating:

[T]he rules dealing with a violation of an original sentence of community control (R.C. 2929.15) should not be confused with the sections of the Revised Code regarding early judicial release (R.C. 2929.20) even though the language of R.C. 2929.20([K]) contains the term “community control” in reference to the status of an offender when granted early judicial release. * * * Under R.C. 2929.15, a defendant’s original sentence is community control and he will not receive a term of incarceration unless he violates the terms of his community control[;] whereas, when a defendant is granted judicial release under R.C. 2929.20, he has already served a period of incarceration, and the remainder of that prison sentence is suspended pending either the successful completion of a period of community control or the defendant’s violation of a community control sanction. State v. Jones, 3rd Dist. Nos. 10-07-26 & 10-07-27,

[**8] (citations omitted). See also State v. Franklin, 5th Dist. No. 2011-CA-00055,

. {¶15} In the instant case, at the time the trial court continued Briggs’s community

control sanction imposed as part of his judicial release, Briggs had served less than three

years of the community control sanction imposed as part of his judicial release. Therefore,

the community control was not invalid for exceeding the five-year limitation set forth in

R.C. 2929.20(K). The cases that Briggs cites are distinguishable because none of them

concern community control that was imposed as a condition of judicial release. They

concern the imposition of community control sanction as part of the original sentence.

State v. Redmond, 2d Dist. Montgomery No. 21500,

; State v. Wright, 2d

Dist. Darke No. 05-CA-1678,

; State v. Craig, 8th Dist. Cuyahoga No.

84861,

. Accordingly, Briggs’s sole assigned error is overruled.

{¶16} Judgment 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 be sent to the Cuyahoga County 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.

___________________________________________________ PATRICIA ANN BLACKMON, PRESIDING JUDGE

TIM McCORMACK, J., and MELODY J. STEWART, J., CONCUR