Opinion
No. 89-1730
Submitted March 6, 1990 —
Decided May 30, 1990.
Criminal law — Probation — Trial court retains jurisdiction to revoke probation and reinstate sentence, when — "Absconds," as used in R.C. 2951.07, construed.
APPEAL from the Court of Appeals for Cuyahoga County, No. 58264.
The record indicates that on October 15, 1985, the grand jury indicted petitioner-appellee, Albert Townsend, for breaking and entering in violation of R.C. 2911.13. Townsend pled guilty to attempted breaking and entering. On December 23, 1985, Townsend was sentenced to six months' incarceration; however, the sentence was suspended and Townsend was placed on probation for two years and ordered to pay court costs and a fine.
In November 1986, Townsend willfully stopped reporting to his probation officer. The probation department warned Townsend by letter and telephone that he faced revocation of probation. In February 1987, the trial court issued a capias warrant for Townsend's arrest because he had failed to report to the probation department. However, it was not until July 1989 that Townsend was arrested pursuant to the capias, as well as on separate charges. The record before the court fails to disclose whether the probation officer knew Townsend's whereabouts after the capias was issued.
In August 1989, the trial court found that Townsend had willfully violated the terms of his probation and reimposed the original six months' jail sentence. Townsend then applied for a writ of habeas corpus in the Court of Appeals for Cuyahoga County, claiming that respondent-appellee, Gerald McFaul, Cuyahoga County Sheriff, was unlawfully restraining Townsend. At a hearing, Townsend admitted that he failed to report, but claimed that he never left Cuyahoga County. By a split decision (David T. Matia, J., dissenting), the court of appeals granted the writ of habeas corpus, relying upon State v. Williams (1988), 43 Ohio App.3d 184, 540 N.E.2d 300. The state of Ohio appeals.
See the opinion of then Judge Douglas in In re Petition of Gentry (1982), 7 Ohio App.3d 143, 146, 7 OBR 187, 189-190, 454 N.E.2d 987, 990-991, at fn. 1.
John P. Parker, for appellee.
John T. Corrigan, prosecuting attorney, Karen L. Johnson and George J. Sadd, for appellant.
We decide today that the term "absconds," as used in R.C. 2951.07, can include a probationer who willfully fails to report to his probation officer even though he may have remained within the territorial jurisdiction of the trial court. Hence, the state need not prove that the probationer left the court's territorial jurisdiction in order to toll the running of his probation period pursuant to R.C. 2951.07.
A trial court retains jurisdiction over a defendant placed on probation in accordance with R.C. 2951.07, which provides:
"Probation under section 2951.02 of the Revised Code continues for such period as the judge or magistrate determines, and may be extended. The total period of probation shall not exceed five years. If the probationer absconds or otherwise absents himself from the jurisdiction of the court without permission from the county department of probation or the court to do so, or if he is confined in any institution for the commission of any offense whatever, the probation period ceases to run until such time as he is brought before the court for its further action."
The state argues that the phrase "or otherwise absents himself from the jurisdiction of the court without permission," is a wholly independent clause, not modifying "absconds" in any way. Thus, a defendant might abscond — by willfully evading the court's lawful supervision — without in fact leaving the jurisdiction. In contrast, petitioner-appellee argues that the word "otherwise" does modify the word "absconds," so as to require the state to prove that the probationer left "from the jurisdiction."
In this case, the court of appeals issued no opinion; however, in the entry granting the petition, the court relied on State v. Williams (1988), 43 Ohio App.3d 184, 540 N.E.2d 300. Williams, in interpreting R.C. 2951.07, concluded, in a split decision, that a "probationer must abscond from the jurisdiction" in order for the period of probation to be tolled. Id. at 186, 540 N.E.2d at 302. Judge Krupansky, dissenting, argued the majority's interpretation "rewards injustice by permitting a probation violator, appellant, to terminate his probation at his pleasure without penalty since he absconded within the jurisdiction of the court." Id. at 189, 540 N.E.2d at 305.
Returning to the present case, dissenting Judge Matia presented similar views. He read "`absconds," as used in R.C. 2951.07 to include any action by a probationer who frustrates the trial court's supervision of his probation, irrespective of where the probationer absconds."
Applying normal standards of statutory construction we find the word "absconds" is not qualified by the words "from the jurisdiction." The phrase "from the jurisdiction" applies only to "or otherwise absents." The word "abscond" has a clearly defined legal meaning, standing alone; it needs no clarification or modification from the statutory words appearing after it. "Abscond" is widely and normally interpreted to include hiding within a jurisdiction from service of process. See 1 Words and Phrases (1964) 247, Abscond; Black's Law Dictionary (5 Ed. 1979) 8.
We find this interpretation fits within the object and purpose of the statute which is to deal with those who, by their voluntary act, frustrate supervision of their probation. As we noted long ago:
"It is a rule of interpretation, of universal application, that a law is to be so construed as to carry out the intention of the maker, and that to ascertain that intention, not merely is the language of the law, to be looked to, but also the subject-matter to which it relates, the evil provided against, and the attending circumstances and understanding, at the time the law was framed." (Emphasis sic.) Bank of Toledo v. Toledo (1853), 1 Ohio St. 622, 637.
It makes little sense to qualify "absconds" by requiring the state to prove the probation violator left the jurisdiction. To so interpret R.C. 2951.07 constricts the word to less than its normal meaning, frustrates the legislature's intention, and rewards a wrongdoer for his own wrong. Thus, we specifically disapprove State v. Williams, supra, to the extent it holds that "absconds" requires proof that the probationer left the jurisdiction. "`* * * Courts of law are not warranted in giving such a construction to the acts of a legislature, as must necessarily work injustice and be fraught with injurious consequences, unless the intent of the legislature that they shall be so understood, is manifest and clear beyond any rational doubt. * * *'" Lessee of Allen v. Parish (1827), 3 Ohio 187, 198, quoted in part by Judge Krupansky in State v. Williams, supra, at 189, 540 N.E.2d at 304-305.
The judgment of the court of appeals is reversed, and the cause is remanded to that court for further proceedings.
Judgment reversed, relief denied and cause remanded.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.