[Cite as State v. Nash, 2012-Ohio-3246.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

EN BANC 

No. 96575 

STATE OF OHIO 

PLAINTIFF-APPELLANT

vs. 

ANTWAN NASH

 DEFENDANT-APPELLEE

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-545811 

 

BEFORE: En Banc Court 

RELEASED AND JOURNALIZED: July 19, 2012 
ATTORNEYS FOR APPELLANT 

William D. Mason 

Cuyahoga County Prosecutor 

BY: James M. Rice 

 T. Allan Regas 

Assistant County Prosecutors 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: John T. Martin 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 400 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., J.: 

{¶1} Pursuant to App.R. 26 and Loc.App.R. 26, this court determined that a 

conflict existed between the panel’s decision in this case and this court’s previous 

decisions on the issue of whether a court sentencing a defendant to community control 

sanctions must place the offender under the supervision of the adult probation 

department, or whether it has the discretion to determine that supervision is not necessary. 

 Accordingly, we sua sponte granted en banc consideration in this matter and convened 

an en banc conference in accordance with App.R. 26(A)(2), Loc.App.R. 26(D), and

McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 

672. 

{¶2} The appellant state urges us to follow our precedent, which would require the 

trial court to order probation department supervision of every defendant sentenced to a 

community control sanction. State v. Eppinger, 8th Dist. No. 92441, 2009-Ohio-5233. 

Upon en banc review, we overrule our decision in Eppinger and hold that R.C. 

2929.15(A)(2) requires probation department supervision of a defendant placed on 

community control sanctions only when there is a condition that must be overseen or a 

term during which a defendant’s conduct must be supervised. Accordingly, we affirm 

the trial court’s judgment. 

I. 

{¶3} Nash pleaded guilty to one count of drug possession, a fifth degree felony. 

The trial court sentenced him to a three-day jail term with credit for three days served and 
imposed a $100 fine. The state appealed of right, raising the following assignment of 

error for our review: 

The sentence imposed by the trial court is contrary to law as the trial court 

failed to sentence appellee to a valid sentence of imprisonment or 

community control sanctions, failed to place appellee under supervision, 

and failed to inform appellee of the consequences of appellee’s failure to 

pay the fine or costs. 

 II. 

{¶4} Our review of trial court sentencing decisions is guided by State v. Kalish, 

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Kalish sets forth a two-prong test 

that guides our review of felony sentences. Under the first prong, we review whether 

the trial court complied with all applicable rules and statutes to determine if the sentence 

is clearly and convincingly contrary to law. If the first prong is satisfied, then we review 

the trial court’s decision under an abuse-of-discretion standard. Id. at ¶ 4. 

{¶5} The issue raised by the state in this case was first visited by this court in 

Eppinger.

1

 There, the trial court sentenced the defendant to a 25-day jail term with 

 1

Numerous cases have been reversed and remanded by this court following Eppinger. It has 

troubled us to learn through this en banc proceeding that the mandate of this court was either wholly 

ignored or not fully complied with in several of the cases. 

In Eppinger itself, for example, the trial court resentenced the defendant to the original 25-day 

jail term with credit for 25 days served, waived costs, fines, and assigned counsel fees, but did not 

impose probation department supervision. Similarly, in State v. Lee, 8th Dist. No. 92327, 

2009-Ohio-5820, the trial court reimposed substantially the same sentence that we had found to be 

contrary to law, again failing to place the offender under the probation department’s supervision. 

In State v. Becker, 8th Dist. No. 95901, 2011-Ohio-4100, and State v. Ashby, 8th Dist. No. 96119, 
credit for 25 days served and a $100 fine. This court found the sentence contrary to law 

under the first prong of Kalish. We noted that in sentencing a felony offender, a trial 

court has the option of a sentence of imprisonment or a sentence of community control 

sanctions. Id. at ¶ 9 (quoting 1 Griffin & Katz, Ohio Felony Sentencing Law, Section 

2929.13 at 109 (2006 Ed.)). If a trial court sentences an offender to community control 

sanctions, it can impose a sanction authorized under R.C. 2929.16, 2929.17, or 2929.18. 

Id. (citing R.C. 2929.15). These sections govern residential sanctions, nonresidential 

sanctions, and financial sanctions, respectively. Id. We held that “[o]ne of the results 

of sentencing an offender to community control is supervision of the offender.” Id. at ¶ 

10. Because the trial court did not sentence Eppinger to “either prison or a community 

control [sanction] under the supervision of the probation department,” this court held the 

sentence was contrary to law. 

{¶6} The sentence in this case, like the sentence in Eppinger, included a jail term 

and a fine. The trial court pronounced sentence against Nash as follows: “Well, this is 

a 2009 case, and it didn’t happen yesterday. You’re sentenced to three days in County 

 

2011-Ohio-5160, the trial court has taken no action after we reversed the sentences imposed as 

contrary to law and remanded for further proceedings. 

Although not directly relevant to this case, the state has also pointed out that the trial court has 

failed to comply with this court’s directives to obtain a presentence investigation report before 

sentencing an offender to community control sanctions. E.g., State v. Pickett, 8th Dist. No. 

91343, 2009-Ohio-2127; State v. Disanza, 8th Dist. No. 92375, 2009-Ohio-5364; State v. Peck, 

8th Dist. No. 92374, 2009-Ohio-5845. 

The trial court is bound to comply with this court’s mandate; it has no discretion to disregard 

our orders. State ex rel. Sharif v. McDonnell, 91 Ohio St.3d 46, 2001-Ohio-240, 741 N.E.2d 127. 
Jail, with credit for three days served, and you have to pay a $100 fine.” We now 

believe the Eppinger decision fundamentally misread R.C. 2929.15(A)(2)(a) and 

therefore improperly required the trial courts to impose probation department supervision 

in every case in which the defendant was sentenced to community control sanctions. 

{¶7} Jail is a community residential sanction under R.C. 2929.16 and a fine is a 

financial sanction under R.C. 2929.18. The argument that probation department 

supervision is an essential element of community control sanctions ignores the purpose of 

placing a defendant under the supervision of the probation department. In particular, 

R.C. 2929.15(A)(2)(a) provides that in sentencing a defendant to community control 

sanctions, the sentencing court: 

shall place the offender under the general control and supervision of a 

department of probation in the county that serves the court for the purposes 

of reporting to the court a violation of any condition of the sanctions, any 

condition of release under a community control sanction imposed by the 

court, a violation of law, or the departure of the offender from this state 

without the permission of the court or the offender’s probation officer. 

(Emphasis added.) 

{¶8} The language “shall place the offender under the general control and 

supervision of the department of probation” must be read in conjunction with the purpose 

of supervising a defendant on community control: to report a “violation of any 

condition of the sanctions, any condition of release under a community control sanction 

imposed by the court, a violation of law, or the departure of the offender from this state 

without the permission of the court or the offender’s probation officer.” Id. Thus, 

supervision is only necessary where there is a condition that must be overseen or a term 
during which a defendant’s conduct must be supervised. If there are no conditions, there 

is nothing to supervise. Further, when a court imposes a fine, it becomes a judgment 

against the defendant, enforceable by execution under R.C. 2929.18, and there is usually 

no need to monitor payment of the fine. 

{¶9} Additionally, we find this court’s reliance in Eppinger on a portion of a 

comment from the Ohio Felony Sentencing Law treatise should be considered in the 

context of its accompanying text. Specifically, Eppinger cited the comment, “‘The 

sentencing court has discretion to impose either a sentence of imprisonment or 

community control sanctions.’” Eppinger at ¶ 9, quoting Ohio Felony Sentencing Law

at 109. The full text, which was not cited in Eppinger, provides as follows: 

The sentencing court has discretion to impose either a sentence of 

imprisonment or community control sanctions (1) in accordance with the 

overriding purposes of sentencing — protection of the public and 

punishment of the offender — and (2) after determining the relative 

seriousness of the defendant’s conduct and the likelihood that the defendant 

will commit additional offenses, (3) provided that the sentence does not 

impose an unnecessary burden on governmental resources. 

(Emphasis added; footnotes omitted.) Ohio Felony Sentencing Law at id. 

{¶10} We believe this comment suggests that a trial court has fairly broad 

discretion in fashioning sentences. We find support for this belief in the Revised Code. 

R.C. 2929.12(A), governing the factors to be considered in felony sentencing, provides 

that “[u]nless otherwise required by section 2929.13 or 2929.14 of the Revised Code, a 

court that imposes a sentence under this chapter upon an offender for a felony has 

discretion to determine the most effective way to comply with the purposes and principles 

of sentencing set forth in section 2929.11 of the Revised Code.” (Emphasis added.) 
Thus, under this section, unless the sentencing court must impose a mandatory sentence, it 

has discretion in sentencing a felony offender. 

{¶11} R.C. 2929.13 provides that a court that imposes sentence on a felony 

offender may impose any sanction or combination of sanctions provided in R.C. 2929.14 

to 2929.18, but “[t]he sentence shall not impose an unnecessary burden on state or local 

government resources.” With the passage of H.B. 86, this same requirement has now 

been incorporated into the purposes and principles of felony sentencing under R.C. 

2929.11 (although the new provision is not applicable to this offender): 

[a] court that sentences an offender for a felony shall be guided by the 

overriding purposes of felony sentencing. The overriding purposes of 

felony sentencing are to protect the public from future crime by the offender 

and others and to punish the offender and others and to punish the offender 

using the minimum sanctions that the court determines accomplish those 

purposes without imposing an unnecessary burden on state or local 

government resources. 

{¶12} In light of the above, it may be that, in its discretion, the sentencing court 

finds that time served was sufficient “to protect the public from future crime by the 

offender and others and to punish the offender,” there is no need for the defendant to be 

supervised and monitored, and monitoring payment of a $100 fine would “impose an 

unnecessary burden on the state or local government resources.” Removing that 

discretion from a sentencing court could result in the inefficient result of a defendant 

having to meet with a probation officer for no reason. Further, the costs associated with 

involving the probation department for the collection of a $100 fine would likely exceed 
the cost of the fine.2

{¶13} The Second and Ninth Appellate Districts have also considered this felony 

sentencing issue and come to the same conclusion, albeit on somewhat different 

reasoning. In State v. Allen, 9th Dist. Nos. 10CA009910 and 10CA009911, 

2011-Ohio-3621, the Ninth Appellate District found that: 

[i]n some cases the facts do not support a finding under Section 

2929.13(B)(1) [for imposing a prison term], but the sentencing court also 

determines that a community control sanction is inconsistent with the 

purposes and principles of sentencing, thus taking the case outside the 

scope of both 2929.13(B)(2)(a) and (b). In such cases, the court is “not 

compelled * * * to impose a prison sentence or * * * to impose a 

community control sanction. Rather, it [is] within the trial court’s 

judgment to determine, after considering the factors set forth in R.C. 

2929.12, what type of sentence would best serve the overriding purposes 

and principles of sentencing contained in R.C. 2929.11.” 

Id. at ¶ 10, quoting State v. Sutherland, 2d Dist. No. 97CA25, 1997 WL 464788, 

(Aug. 15, 1997). 

{¶14} In light of the above, Nash’s sentence was not contrary to law, the first 

prong under Kalish.

3

{¶15} We also find that the trial court did not abuse its discretion in sentencing 

Nash. An abuse of discretion is more than an error of judgment; it means that the trial 

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. 

 2

Discretion implies that the trial court has the power to place the offender under probation 

department supervision to oversee the payment of a fine, or not, as the circumstances may warrant. 

Nothing in this opinion precludes a court from imposing probation department supervision to oversee 

the payment of a fine. 

3

We recognize this court’s recent decision in State v. Cox, 8th Dist. No. 97924, 

2012-Ohio-3158. This case is distinguishable from Cox, however, because it is decided under the 

law prior to the effective date of H.B. 86. 
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Nash pleaded guilty to a 

fifth degree felony count of drug possession. The charge resulted from Nash having 

Oxycodone in his pocket, which was not prescribed for him. Prior to this case, and at 

the time of sentencing, Nash was working full time and paying child support. Nash’s 

mother had recently passed away and he was “getting [his] life together.” He was also 

supporting his two younger brothers. On this record, the trial court’s sentence was not 

an abuse of discretion, the second prong under Kalish. 

{¶16} Finally, the state’s assignment of error implies that costs were assessed to 

Nash and the trial court failed to advise him of the consequences of not paying costs. 

But costs were waived here. The state also contends that the trial court “failed to notify 

Nash of the consequences of his failure to pay his fine as required by R.C. 

2929.19(B)(5).” But as already stated, the fine becomes a judgment against Nash, 

enforceable by execution under R.C. 2929.18. 

{¶17} In light of the above, the state’s assignment of error is overruled. 

III.

{¶18} Judgment affirmed. 

It is ordered that appellee recover of appellant 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 common 

pleas court to carry this judgment into execution. Case remanded to 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. 

 

LARRY A. JONES, SR., JUDGE 

PATRICIA ANN BLACKMON, A.J., 

FRANK D. CELEBREZZE, JR., J., 

EILEEN A. GALLAGHER, J., 

MARY EILEEN KILBANE, J., 

KATHLEEN ANN KEOUGH, J., 

KENNETH A. ROCCO, J., 

MELODY J. STEWART, J., and 

JAMES J. SWEENEY, J., CONCUR; 

COLLEEN CONWAY COONEY, J., DISSENTS 

WITH SEPARATE OPINION WITH 

SEAN C. GALLAGHER, J., and 

MARY J. BOYLE, J., CONCURRING; 

SEAN C. GALLAGHER, J., DISSENTS 

WITH SEPARATE OPINION WITH 

COLLEEN CONWAY COONEY, J., and 

MARY J. BOYLE, J., CONCURRING

COLLEEN CONWAY COONEY, J., DISSENTING: 

{¶19} I concur in the dissenting opinion of Judge Sean Gallagher and write 
separately only to add one point. I would honor stare decisis and follow this court’s 

precedent. If a motion is filed, the remedy is to certify a conflict with the Ninth 

District’s decision in State v. Allen, 9th Dist. Nos. 10CA009910 and 10CA009911, 

2011-Ohio-3621, on which the majority relies. 

{¶20} I find it ironic that the trial court has not complied with this court’s prior 

mandates, and now the en banc majority changes the law in the Eighth District, ultimately 

rewarding this noncompliance.

SEAN C. GALLAGHER, J., DISSENTING: 

{¶21} The mere fact that an appellate court would have to interpret whether 

supervision is required when a community control sanction is imposed is yet another 

blemish on the legacy of sentencing reform brought on by S.B. 2. While I understand 

the analytical gymnastics the majority was forced to hurdle to answer this question, and 

admire their effort, I respectfully dissent. I would follow our precedent in Eppinger, 8th 

Dist. No. 92441, 2009-Ohio-5233. Until the legislature addresses the overly confusing 

language in Ohio’s sentencing statutes brought on by S.B. 2, I believe judicial 

interpretations of the statute only add to the problems. 

{¶22} R.C. 2929.15 reads in part: 

(2)(a) 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 * * *. (Emphasis added.) 

{¶23} In this case, part of the sentence was a $100 fine, which even the majority 

acknowledges is a community control sanction under R.C. 2929.18. 

{¶24} Thus, because a community control sanction was imposed, probation 

supervision was mandatory. If the legislature wanted to exempt fines as community 

control sanctions from supervision, it should have said so. 
{¶25} In an apparent effort to allow judicial discretion where probation 

supervision would be deemed pointless or wasteful, the majority is forced to creatively 

read R.C. 2929.15(A)(2) to include the unwritten presumption that the mandatory 

provision is only necessary where there is a condition that must be overseen. By 

reaching deep into the bowels of the Ohio Felony Sentencing Law treatise, Section 109, 

the majority reads subsection 3 of that treatise to find supervision, under the 

circumstances in this case, to be an “unnecessary burden on governmental resources.” 

The majority even references the recent amendment to R.C. 2929.11 through H.B. 86 to 

not impose “an unnecessary burden on the state or local government resources,” even 

though they acknowledge this provision is not applicable to Nash. Frankly, this creative 

interpretation is on a par with some interpretations of the federal tax code. 

{¶26} A big part of this problem seems to center on the fact that the legislature 

assumed that, when dealing with felony crimes, judges would impose either a prison term 

or a community control sanction or sanctions for felony crimes. The logical assumption 

is that because these are felony crimes, the nature of the community control sanctions 

would naturally warrant supervision. When, as here, judges look for alternatives to this 

approach, a “hole” or “gap” in the statute either exists or is created by the actions of the 

trial judge. 

{¶27} Despite numerous passages in R.C. 2929.12, 2929.13, 2929.15, 2929.16, 

2929.17, and 2929.18, containing unending preconditions with confusing phrases like 

“unless otherwise required,” “except as provided,” and the all too familiar term “if,” there 

are no clear provisions for a court to contemplate the type of sentence imposed in this 
case. For this reason, I dissent. 

{¶28} If this case stands for anything, it should be a call for the legislature to 

revisit the undefinable language of S.B. 2 and finally either fix it once and for all or 

assign it to the ash heap of history.