Judge Rocky A. Coss
Judge Rocky A. Coss
By the Hon. Judge Rocky A. Coss
Highland County Common Pleas Court

Under a proposed change in House Bill 49, the Ohio Budget Bill, a sentence of incarceration for a felony five (F5) offense cannot be served in prison unless one of the following apply:

• Offense is a offense of violence;
• Offense is a sex offense;
• Offense has a mandatory sentence;
• Offender has a prior conviction for felony offense of violence; or
• Offender has a prior conviction for felony sex offense.

Sentences for all other fifth-degree felonies are to be served in one of following facilities:

• County jail;
• Multi-county jail;
• Municipal jail;
• Municipal-county jail;
• Multi-county-municipal jail or workhouse;
• Community alternative sentencing center;
• District community alternative sentencing center; or
• Community based-correctional facility.

Questions raised in the bill’s language

There appears to be no limit to the number of fifth-degree felonies that a person can commit and not be required to serve a prison term.

If a person on community control supervision for a fifth-degree felony commits a new fifth-degree felony, there can be no prison sentence because neither of the sentences can be served in a prison.

There is no guidance on what will happen if a sentence is imposed for a fifth-degree felony and higher-degree felony offenses.

The language suggests that a person sentenced to a higher-degree felony would have to serve that time in an ODRC facility and the fifth-degree felony sentence in a local facility.

What is the effect on concurrent sentences?

If the fifth-degree felony cannot be served in an ODRC facility, does this mean they must be served consecutively?

It does not address the issue of offenders who commit a fifth-degree felony who are on post-release control for a felony not included in one of the five exceptions.

For example, a person on mandatory post-release control for a second-degree felony drug offense commits a fifth-degree felony. Since the sentence has to be served in a local facility, then can the sentencing court in that case impose a sentence for the PRC violation to be served consecutively in an ODRC facility after the fifth-degree felony sentence is complete? Would it be able to be imposed at all since it would not be a sentence to an ODRC facility?

Costs of incarceration in a local facility will be borne by the counties. The ODRC has reportedly stated that they will provide $20 million in grants in the first fiscal year and $40 million in the second year of the biennium to offset costs of housing prisoners in local facilities and for providing treatment or other programming to offenders.

This will be totally inadequate to cover extra costs of personnel, medical costs, food, uniforms and the facilities themselves.

The effect of this proposal effectively makes a fifth-degree felony a misdemeanor – which is the sole responsibility of the counties, since all jail time will be served locally. However, the collateral consequences for felonies remain, including legal disabilities for firearms, disqualification from licenses for certain occupations and the stigma of a felony record.

Does this make sense?

This proposal eliminates the “stick” from the “carrot-and-stick” approach, which is what gets most people into treatment when charged with a felony. Most of these offenders have been under misdemeanor community control supervision prior to being charged with a felony. Most have served time in the county jails and been released for treatment previously.

The threat of serving a prison sentence is sometimes a motivation particularly for non-drug offenses. For drug offenders, at some point they must be held accountable for failure to comply with treatment and other supervision, particularly if they commit new offenses. Sometimes, this is the only way to save them from committing more crimes or overdosing.

Will this stimulate crime by smart career criminals?

A con artist can scam people forever and never get a felony conviction above a fifth-degree felony since the threshold for many fourth-degree felony theft offenses is $7,500.

A true drug dealer can sell heroin, methamphetamine, cocaine and other drugs in amounts less than bulk which are generally fifth-degree felonies and never be sent to prison for these offenses. Counties cannot afford to incarcerate these offenders for long periods. Some states are getting tough on heroin dealers, yet this would send a different message, sell in an amount that is a fifth-degree felony and never face prison time.

This proposal is not good policy and will not work.

Counties simply do not have the resources to deal with the increased number of offenders that will have to be dealt with locally, and the money that the state is providing to counties is simply a political Band-Aid, not a solution.

Judge Rocky A. Coss has served as Judge of the Common Pleas Court General and Domestic Relations Divisions since August of 2008. He has served as member of the Ohio Supreme Court’s Advisory Committee on Case Management since 2011 and has been a presenter on case management for new judges’ training conducted by the Ohio Judicial Conference. Last year, he was appointed by the Supreme Court of Ohio to serve as a member of the Board of Professional Conduct for an unexpired term ending December 31, 2017.