
    The State of Ohio v. Wheeler. The State of Ohio v. Williams. The State of Ohio v. Brown.
    [Cite as State v. Wheeler (1976), 49 Ohio Misc. 41.]
    (Nos. 74-CR-1063 and 76-CR-180, 75-CR-491 and 75-CR-109
    Decided July 26, 1976.)
    Common Pleas Court of Montgomery County.
    
      Mr. Lee C. Falke, prosecuting attorney, for plaintiff.
    
      Mr. Michael R. Eckhart, for defendant Wheeler (ease Nos. 74-CR-1063 and 76-CR-180).
    
      Mr. Paul M. Hunter, for defendant Hunter (case No. 75-CR-491).
    
      Mr. Alfred L. McCray, for defendant Brown (case No-75-CR-109).
   Love, J.

These cases involve requests for conditional probation for purposes of treatment and rehabilitation, filed under R. C. 2951.04. Each request was filed on July 2, 1976, by a currently incarcerated individual who claims to be a drug-dependent person.

Petitioner, Moses Wheeler, pled guilty in criminal case No. 74-CR-1063 on September 20, 1974, to possession of criminal tools. On October 18, 1974, he was sentenced to a term of six months to five years at the Ohio State Reformatory. On January 17, 1975, further execution of sentence was suspended and defendant was granted “shock” probation, with the court placing him under probation with specific conditions attached for a period not to exceed five years. Moses Wheeler was arrested for breaking and entering on February 7, 1976, in case No. 76-CR-180. This constituted violation of probation in the earlier offense, and, on March 19,1976, he was again sentenced to six months to five years at the Ohio State Reformatory. On April 1, 1976, Moses Wheeler was conveyed to the Ohio State Reformatory. On June 28, 1976, the court overruled Moses Wheeler’s motion for “shock” probation. On May 20, 1976, the court dismissed Moses Wheeler’s request for conditional probation filed under R. C. 2951.04 because that Section did not become effective until July 1,1976. On May 26, 1976, Moses Wheeler filed a motion for probation as a drug-dependent person in lieu of conviction under R. C. 3719.51.

Petitioner, Willie Roy Williams, was convicted by a jury of aggravated robbery on June 12, 1975, in criminal case No. 75-CR-491. On the same day, he was sentenced to a term of from six months to twenty-five years at Chillicothe. On June 24, 1975, he was conveyed there. The Court of Appeals for Montgomery County affirmed his conviction on January 31, 1976, in ease No. CA-4909. Willie Roy Williams filed an earlier request for conditional probation under R. C. 3719.51 and 2951.04 on May 10,1976. The court dismissed this request because (1) R. C. 3719.51 is only applicable where the petitioner is eligible for probation, and Willie Roy Williams was not eligible; and (2) R. C. 2951.04 did not become applicable until July 1, 1976.

Petitioner, Timothy Curtis Brown, was convicted by a jury of forgery (uttering) on June 20,1975, in criminal case No. 75-CR-109. He was sentenced on the same day to a term of from two to five years at Chillicothe. The Court of Appeals for Montgomery County, Ohio, affirmed his conviction on March 19, 1976, in case No. CA-4924.

Petitioners, Willie Roy Williams and Timothy Curtis Brown, base their requests for conditional probation on both R. C. 2951.04 and 3719.51. Petitioner, Moses Wheeler, bases his request for conditional probation solely on R. C. 2951.04; however, his motion of May 26, 1976, for probation as a drug-dependent person in lieu of conviction, is based on R. C. 3719.51.

R. C. 2951.04 became effective July 1, 1976, as part of the 1975 Ohio Drug Act (Am. Sub. H. B. 300). In pertinent part, this Section states:

“(A) If the court has reason to believe that an offender convicted of a felony or misdemeanor is a drug dependent person or is in danger of becoming a drug dependent person, the court may, and when the offender has been convicted, the court shall advise the offender that he has a right to request conditional probation for purposes of treatment and rehabilitation.”

The Section provides that within a reasonable time after receipt of the request for conditional probation, the court “shall hold a hearing” to determine the offender’s eligibility. As an aid to this determination, the court may refer the offender for medical and psychiatric examination. If the court finds that an offender is eligible it may “suspend execution of the sentence imposed” and place the offender on the requested conditional probation.

The primary question to be resolved in the cases of these three defendants is whether the court has jurisdiction to consider requests for conditional probation, filed under R. C. 2951.04, where the petitioners have already been delivered into the custody of the institutions in which they are to serve their sentences. One source states:

“There is no set time for making the motion, and theoretically it could be made at any time up to the time the offender is delivered into the custody of the institution in which he is to serve his sentence. If it is made after that time, the court loses jurisdiction to grant anything but shock probation.” Swisher and Young, Drug Abuse Control: A Guide to the 1975 Ohio Drug Act (1976), at page 9:15.

This statement is based on B. C. 2929.51, which became effective Januáry 1, 1974. This Section provides:

“(A) At the time of sentencing, or at any time before an offender is delivered into the custody of the institution-in which he is to serve his sentence, when an indefinite term of imprisonment for felony is imposed, the court may suspend the sentence and place the offender on probation pursuant to Section 2951.02 of the Bevised Code. * * *
“(B) After an offender is delivered into the custody of the institution in which he is to serve his sentence, when an indefinite term of imprisonment for felony is imposed, and'during the period prescribed by Section 2947.061 of the Bevised Code, the court may suspend the balance of the sentence and place the offender on probation pursuant to such section.” (Emphasis added.)

This Section was construed by the Court of Appeals for Ottawa County as limiting the court’s jurisdiction over incarcerated offenders to that specifically granted by B. C. 2947.061, the “shock” probation statute. In State v. Ramey (1975), 46 Ohio App. 2d 184, 187, that court stated: '

“It has long been established that trial courts have only thát power to suspend execution of sentence as is authorized by statute.”

' ’ The court concluded that once an offender has been delivered into the custody of the institution in which he is to serve his sentence, the trial courts power to suspend execution of that sentence is limited to “shock” probation. Suspension of sentence under any other method can be done-by the trial court only prior to-sentencing.

. • ■ The-court is of the opinion that B. C. 2951.04, cannot be utilized as a method of suspending execution of sentence after an offender has been delivered into the custody of- the institution in which -he is to serve the imposed sentence. The trial court possesses jurisdiction to entertain a request for conditional probation filed under this Section only prior to sentencing, and loses jurisdiction once the offender is incarcerated. Therefore, the requests for conditional probation filed by petitioners Moses Wheeler, Willie Roy Williams and Timothy Curtis Brown, under R. C. 2951.04, must be denied, upon the ground that the court is without jurisdiction to act under that statute because all three petitioners, at the time of filing these- requests, had been delivered into custody of institutions in which they were to serve their sentences.

Petitioners, Willie Roy Williams and Timothy Curtis Brown, have also invoked R. C. 3719.51, as a basis for conditional probation. Likewise, petitioner, Moses Wheeler, earlier filed a request for probation in lieu of conviction, based upon R. C. 3719.51. However, that Section provides no firmer support for petitioners’ requests. First, R. C. 3719.51 has been repealed, effective July 1, 1976. R. C. 2951.04 replaced said Section, effective July 1, 1976. The court does not express an opinion as to the applicability of R. C. 2951.04 to offenses committed prior to the effective date. Secondly, courts, in interpreting R. C. 3719.51, have tied it to narrow time limitations. In State v. Ramey, supra, the Court of Appeals for Ottawa County held that the trial court had jurisdiction over a request filed under R. C. 3719.51 only prior to delivery into incarceration. In State v. Stewart (1971), 31 Ohio Misc. 34, the Hamilton County Court of Common Pleas held that R. C. 3719.51 must be invoked by a defendant in the same term of court as when he has been sentenced. And, in State v. Armstrong (1973), 40 Ohio App. 2d 46, the Court of Appeals for Franklin County held that R. C. 3719.51 must be invoked within the same time period prescribed for “shock” probation motions, i. e., not earlier than 30 days nor later than 60 days after the defendant is delivered into the custody of the institution in which he is to serve his sentence. The court is of the opinion that Ramey prescribes the proper approach, i. e., that the trial court could grant probation under R. C. 3719.51 only prior to delivery into custody of the institution in which sentence is to be served. The Ramey court felt that Armstrong and Stewart reached different results mainly because those decisions did not consider R. C. 2929.51, which was not effective until 1974. Therefore, since petitioners failed to file requests under R. C. 3719.51, prior to delivery into custody of their respective institutions, no relief is possible under R. C. 3719.-51.

Accordingly, because the court lacks jurisdiction to grant conditional probation on the basis of drug dependency after the offender has been delivered into the custody of the institution in which he is to serve his sentence, the requests of petitioners, Moses Wheeler, Willie Eoy Williams and Timothy Curtis Brown, for conditional probation as drug-dependent persons should be and hereby is denied.

Petitions denied. 
      
      Local Rule of Court 1.00 provides that the calendar year is divided into three terms of court, commencing on the first Monday of January, May and September.
     
      
      Petitioner Williams is not eligible for probation in any event because the offense of which he was convicted (aggravated robbery) “was committed while the offender was armed with a firearm.” See R. C. 2951.02. Both R. C. 2951.04 and 3719.51 do not permit conditional probation as a drug-dependent person unless the offender has committed an offense for which probation may be granted.
     