State ex rel. Corrigan v. Court of Common Pleas

Stern, J. The question presented is whether the proscriptions against probation within R. C. 2951.02(F) extend to the granting of “shock” or “delayed” probation pursuant to R. C. 2947.061.1 R. C. 2951.02, which sets forth the present criteria and conditions for probation, states in subsection (F) that “ [a]n offender shall not be placed on probation when any of the following applies: “(1) The offense involved is aggravated murder or murder. “ (2) The offender is a repeat or dangerous offender as defined in Section 2929.01 of the Revised Code. “(3) The offense was committed while the offender was armed with a firearm or dangerous ordnance as defined in Section 2923.11 of the Revised Code.” [189] Iii the case at bar, the offender committed an offense while armed with a firearm and, by virtue of E. C. 2951.02 (F) (3), clearly was not eligible for probation at the time of his initial sentencing. However, appellant urges' that, by virtue of E. C. 2947.061, he became so eligible, for a limited period, 30 days after his delivery to the custody of a penal institution. In support of that position, appellant emphasizes that the initial language of E. C. 2947.061, “ [s]ubject to Sections 2951.03 to 2951.09, inclusive * * *,” does not include E. C. 2951.02. He contends that such exclusion renders the prohibitions against probation within E. C. 2951.02(F) inapplicable to the granting of shock probation. Prior to adoption of the new Ohio Criminal Code, E. C. 2951.04 specified which offenses were nonprobationary by stating: “No person convicted of murder, arson, burglary of an inhabited dwelling house, incest, sodomy, rape without consent, assault with intent to rape, or administering poison shall be placed on probation.” The “shock probation” statute, E. C. 2947.061, was first enacted in 1965 (131 Ohio Laws 684), and then amended in 1969 (133 Ohio Laws 2493); it was not amended or modified by the adoption of the new Ohio Criminal Code (H. B. 511, effective January 1, 1974). E. C. 2947.061 has always provided that the authority of the trial court to grant shock probation be “subject to Sections 2951.03 to 2951.09, inclusive, of the Eevised Code.” This language plainly made shock probation subject to E. C. 2951.04, and therefore shock probation could not be granted for the offenses listed therein. E. C. 2951.04 was repealed by H. B. 511, and, at the same time, was replaced by the enactment of subsection (F) to E. C. 2951.02, which prohibits the granting of probation to certain types of offenders.2 [190] The only apparent legislative purpose served by renumbering B. C. 2951.04 is that the limitations upon the granting of probation are no longer to extend to shock probation. The renumbering plainly places the provisions of B. C. 2951.02 outside the range of those statutes subject to which shock probation may be granted. The logical conclusion is that the General Assembly did intend, by replacing B. C. 2951.04 and leaving unchanged B. C. 2947.061, to permit the sentencing court to grant shock probation after actual incarceration of 30 days, even in cases of crimes statutorily designated as nonprobational at the time of sentencing. See Thomas B. Swisher, Beport of the Ohio State Bar Foundation, Problems in the Criminal Code I, 47 Ohio Bar 425, 431 (April 15, 1974). The Court of Appeals granted the writ of prohibition on the grounds that to adopt the position urged by appellant “would produce unreasonable and unintended results.” The court noted that certain offenders would be ineligible for probation at the time of sentencing pursuant to B. C. 2951.02(F) and also ineligible for “shock parole” pursuant to B. C. 2967.31 after serving six months of their sentence,3 but would nonetheless be eligible for shock proba [191] tion after serving thirty days of their sentences. Certainly, this system of sentence modification appears, to a degree, inconsistent. But we do not find it to be contradictory or absurd, nor that it defeats the statutory purpose. Probation generally relates to an action taken before an individual enters a penal institution under sentenca; parole relates to an action taken by a legal authority after the individual is incarcerated. The shock probation statute (E. C. 2947.061) is in effect a hybrid of both probation and parole. It is not unreasonable for different standards to be applied to it. Shock probation gives discretion to the sentencing judge, who is personally acquainted with the nature and circumstances of the crime and the character and background of the defendant, to determine in his judgment whether a relatively brief experience of prison life may be sufficient as punishment and as deterrence. The granting of this authority to a trial judge and the granting of a similar but lesser authority to the parole authority is not contradictory, nor are those authorities in any way incompatible. They are wholly independent. Nor is it unreasonable for the General Assembly to provide that for certain offenses the trial judge may not consider the granting of probation until after the offender has experienced prison fife. There is a lack of symmetry in these otherwise comparable legislative grants of authority to modify sentences, but not an incompatibility, and that lack of symmetry alone is not sufficient to alter the language of E. O. 2947.061. The legislative intent might have been more clearly shown by other language, such as that in recently enacted E. C. 2925.01(D), specifically excluding shock probation for certain drug abuse offenses, or that in E. C. 2967.31 with regard to shock parole. But it is a familiar principle that the statutes of criminal law are to be construed strictly in favor of the accused, and it is clear that the letter of the law permits this prisoner to receive the benefit of shock probation. When the General Assembly wrote that shock probation was to be “subject to Sections 2951.03 to [192] 2951.09,” and retained that language while changing the included statutes, we must presume that it intended just that, and did not intend that it also be subject to R. C. 2951.02, as the Court of Appeals held. Because we find that the trial court did have jurisdiction to consider the granting of shock probation to the appellant, the judgment of the Court of Appeals granting a writ of prohibition must be reversed. Judgment reversed. O’Neill, C. J., Corrigan, Celebrezze and W. Brown, JJ., concur. Herbert and P. Brown, JJ., dissent. Footnotes [1] R. C. 2947.061 provides, in part: “Subject to Sections 2961.03 to 2951.09, inclusive, 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 serving 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.” [2] H. B. 511 also enacted R. C. 2929.51(B), -which permits the granting of shock probation “when an indefinite term of imprisonment for felony is imposed.” [3] R. C. 2967.31 provides: “Notwithstanding any other provision for determining parole eligibility, a prisoner confined in a state penal or reformatory institution may be released on parole at any time after serving six months in the custody of the Department of Mental Hygiene and Correction, when all of the following apply: “(A) The offense for which the prisoner was sentenced was an offense other than aggravated murder or murder. “(B) The prisoner has not previously been convicted of any felony for which, pursuant to sentence, he was confined' for thirty days or more in a penal or reformatory institution in this state or in a similar institution in any other state or the United States. “(C) The prisoner is not a dangerous offender as defined in Section 2929.01 of the Revised Code. “(D) The prisoner does not need further confinement in a penal or reformatory institution for his correction or rehabilitation. “(E) The history, character, condition, and attitudes of the prisoner indicate that he is likely to respond affirmatively to early release on parole, and is unlikely to commit another offense.”