[Cite as Cleveland v. Oke , 2018-Ohio-2846.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106365

CITY OF CLEVELAND

PLAINTIFF-APPELLEE

vs. JOSHUA OKE

DEFENDANT-APPELLANT

JUDGMENT: SENTENCE VACATED, DEFENDANT DISCHARGED

Criminal Appeal from the Cleveland Municipal Court Case No. 2016 CRD 021235

BEFORE: Blackmon, J., Kilbane, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: July 19, 2018

-i-ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender By: Cullen Sweeney Assistant Cuyahoga County Public Defender 310 Lakeside, Suite 200 Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE Barbara A. Langhenry Director of Law City of Cleveland - Law Department 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114

PATRICIA ANN BLACKMON, J.:{¶1} Defendant-appellant Joshua Oke (“Ok e”), appeals from the second of two sentences imposed for drug possession, following his termination from the Cleveland Municipal Court’s drug court program. Oke assigns the following error for our review: The trial court violated [Oke’s] constitu tional protection against being placed in double jeopardy when it imposed multiple punishments for the same offense. {¶2} Having reviewed the record and pertin ent law, we vacate the second sentence and order Oke discharged, in light of his completion of the court’s or iginal sentence. The apposite

facts follow. {¶3} In 2016, Oke was charged with first-de gree misdemeanor drug abuse in East Cleveland, and the matter was re ferred to the Cleveland Muni cipal Court’s drug court on November 9, 2016. 1 At the time of his acceptance into th e program, he was at the Northcoast Behavioral Healthcare Center, aw aiting residential placement. Th e court provided Oke with the rules for participating in the program, including that Oke would be subjected to drug testing and monitoring for at least a year, and that he could be terminated from the program for noncompliance or withdraw voluntarily. {¶4} Oke participated in the drug court prog ram for eight months. In June 2017, Oke

informed the court that he had smoked crack and th e court ordered him to sp end two days in jail. Oke tested positive for marijuana on August 28, 2017, and September 7, 2017. On September

1 The documents from East Cleveland have not been incl uded within the trial cour t’s record. However, we note that in order to participate in the drug court program: Defendants are required to enter a plea of “guilty” to a first-degree misdemeanor. The sentence is held in abeyance pending successful completion of the program. Upon successful completion of Drug Court and payment of a supervision fee, a participant’s guilty plea is vacated, the charge(s) dismissed and the case sealed or expunged. https://clevelandmunicipalcourt.org/judicial-se rvices/court-programs/drug-court (accessed April 2018).13, 2017, the court terminated Oke from the drug c ourt program, and senten ced him to ten days in jail. The court noted that “ten days is a gift because I could be giving you six months * * * ten days then you can go on about your busine ss.” The court’s journal entry indicates that incarceration would end on September 23, 2017, a nd the matter was returned to the East Cleveland Municipal Court. {¶5} One week later, the court held an add itional hearing. Oke’s counsel questioned whether jurisdiction had vested in the East Cleveland Municipal Court in light of Oke’s termination from drug court, and the court replied: you can go to East Cleveland where they don’t have heat, air or water sometimes, electricity or you can stay here. * * * So it’s a technicality, but if you want to ride on that technicality, you can ride it all the way to East Cleveland jail. {¶6} The court then imposed a second sent ence of 150 days of incarceration. Oke filed a motion for bond, but the trial court sua sponte converted it to a motion to “mitigate sentence,” and denied it, then ordered an additional hearing one week later to “revisit” the issue of mitigation of sentence. This court gr anted an appellate bond on October 23, 2017, or approximately three weeks after the expiration of the ten-day sentence or iginally imposed. Double Jeopardy {¶7} Oke asserts that the trial court viol ated the prohibition against double jeopardy when it sentenced him to ten days of incarcer ation on September 7, 2017, then imposed a second sentence of 150 days on September 13, 2017. {¶8} The Double Jeopardy Clause of the Fi fth Amendment to the United States Constitution protects against the imposition of multiple criminal punishments for the same

offense. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 16, citing

Hudson v. United States , 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), and State v.Raber , 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 24. The double jeopardy protection applies to Ohio citizens through the Fourteenth Amendment to the United States Constitution and is also guaranteed by Artic le I, Section 10 of the Ohio Constitution. State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. {¶9} We recognize that courts have held that there is no double jeopardy violation where a trial court imposes sentence for a “deferred judgment violation” such as a positive drug test, and later imposes a sentence on the underlying offense. See People v. Lopez , 97 P.3d 223 (Colo.App.Div.A 2004); Doyle v. State , 2009 Ark.App. 94, 302 S.W.3d 607 (Div.2). {¶10} The record in this matter indicates that on September13, 2017, the trial court imposed a ten-day sentence, and stated that this is “a gift because I could be giving you six months * * * ten days then you can go on about your business.” This sentence was clearly a sentence for the underlying offense and not simply a deferred judgment vi olation. However, one week later, the court imposed a second sentence of 150 days. Plainly, the court was imposing an additional, harsher sentence for the same firs t-degree misdemeanor, de spite having already imposed a ten-day sentence for the offense of drug a buse. In any event, after the court issued the September 13, 2017 sentence, it returned the matte r to East Cleveland, so it is unclear how jurisdiction was again vested in the drug court for the subsequent sentencing. See State ex rel.

Kline v. Carroll , 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 29. Finally, we note that Oke has completed the ten-day sentence originally imposed by the court. {¶11} For all of the foregoing reasons, the assi gned error is well taken. The second sentence was imposed in violation of the prohib ition against double jeopardy, and is vacated; the first sentence is deemed complete d and Oke is discharged. {¶12} Sentence vacated and defendant discharged.It is ordered that appellant rec over of appellee costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special ma ndate be sent to the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

PATRICIA ANN BLACKMON, JUDGE MARY EILEEN KILBANE, P.J., CONCURS; SEAN C. GALLAGHER, J., CONCURS WITH ATTACHED CONCURRING OPINION

SEAN C. GALLAGHER, J., CONCURRING: {¶13} I concur with the majority decision to vacate the imposed sentence, but respectfully write separately to address concerns about a jurisdictiona l question that Oke failed to raise on appeal. Oke focused his challenge solely on double jeopardy grounds. Because the factual record regarding the transfer process is sparse and we do not have the East Cleveland case on appeal, I will not sua sponte raise the jeopardy issue to take issue with the lead opinion’s analysis. State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.2d 888, ¶

21. {¶14} Municipal courts in this jurisdiction should nevertheless be vigilant about jurisdiction. This case originated in East Clev eland. The East Clevel and criminal case is not before us, and it is not part of this record. Oke appealed the sentence imposed by the Cleveland drug court, after he was ter minated from the program.{¶15} Cleveland Municipal Court Loc.R. 4.24 limits those that can participate in the Cleveland drug court’s program. In this case, Oke entered the program through a referral made by the probation department of the East Cleveland court as a condition of his community control supervision imposed in the underlying criminal case. Cleveland M.C. Loc.R. 4.24(C). That division provides that “persons eligible for th e Greater Cleveland Drug Court may enter the program through three different tracks.” Id. The only track relevant to this case specifically provides that an eligible pers on, within criminal cases initiate d outside Cleveland Municipal Court’s territorial jurisdiction, may enter Cleveland’s drug c ourt program through “a referral from an identified Suburban Court [(in this case East Cleveland)] as a condition of community control supervision by the probati on department of the referring c ourt.” Cleveland M.C. Loc.R. 4.24(C)(3). Thus, it is the proba tion department that makes the referral to the Cleveland drug court under that probation depar tment’s obligation to implement the conditions of community control imposed by the East Cleveland court in the underlying criminal case. {¶16} Although we do not have all the facts and circumstances of these events available to us, and this issue was not directly raised on a ppeal, it is possible that the East Cleveland court never relinquished jurisdiction over Oke’s case. The drug court prog ram was initiated as a condition of the community control sanction imposed by the East Cleveland court. Nothing in

Cleveland’s local rule of cour t provides the drug court with jurisdiction over the defendant’s

entire case. See, e.g., Cuyahoga C.P. Loc.R. 30.2 (F) (“when a case is transferred to a Drug Court Docket, the assigned Drug Court Judge sha ll acquire full jurisdiction over that transferred case.”) When the drug court terminated Oke from the program, the matter was to be referred back to the originating court, in this case East Cleveland. Jurisdiction may well have been atissue, but since it was not raised, I agree with the majority that the sentence imposed by the drug

court must be vacated.