State v. Murphy , 2022 Ohio 1551 ( 2022 )

[Cite as State v. Murphy, 2022-Ohio-1551.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
CASE NO. 6-21-11
PLAINTIFF-APPELLEE,
v.
DANIEL PATRICK MURPHY, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20212070
Judgment Reversed and Cause Remanded
Date of Decision: May 9, 2022
APPEARANCES:
Emily P. Beckley for Appellant
Andrew R. Tudor for Appellee
Case No. 6-21-11
WILLAMOWSKI, J.
{¶1} Defendant-appellant Daniel P. Murphy (“Murphy”) brings this appeal
from the judgment of the Court of Common Pleas of Hardin County sentencing him
to 18 months in prison and ordering the sentence to be served consecutive to that in
a federal case. Murphy argues on appeal that the imposition of consecutive
sentences in this case is contrary to law. For the reasons set forth below, the
judgment is reversed.
{¶2} On October 6, 2021, Murphy entered a guilty plea to one count of
aggravated possession of drugs in violation of R.C. 2925.11(A), 2925.11(C)(1)(b),
a felony of the third degree. Doc. 47. The trial court proceeded to sentence Murphy
immediately. Doc. 48. The trial court ordered Murphy to serve a prison term of 18
months and ordered that the sentence be served consecutive to the sentence
previously imposed in United States District Court for the Northern District of Ohio
case number 3: 19CR00354. Doc. 48 at 4. At the time of the sentencing, Murphy
had been sentenced to supervision in the federal case, but did have a violation
pending. Tr. 5. The possible changes to the terms of supervision in the federal case
were still pending at the time of the sentencing hearing. Tr. 38-39. The parties all
chose to go forward with the sentencing at that time rather than waiting for a pre-
sentence investigation to be completed. Tr. 37. The federal hearing was scheduled
for November 1, 2021. Tr. 43. The trial court then apparently ordered that the Ohio
sentence be served consecutively to whatever sentence the federal court chose to
-2-
Case No. 6-21-11
impose at the November 1, 2021 hearing. Tr. 50. The trial court entered its
judgment entry reflecting its decision on October 7, 2021. Doc. 48. Murphy
appealed from this judgment and raised the following assignment of error.
The trial court erred when sentencing [Murphy] as the record
does not support consecutive sentences and/or the consecutive
sentences are contrary to law.
{¶3} Murphy’s sole assignment of error is that the trial court erred by
ordering the sentence in this case be served consecutive to that in the federal case.
We agree. At the time the sentence was imposed by the trial court, the sentence in
the federal court was supervision without a prison element, though he had a
violation of his supervision pending. So, imposing a prison term consecutive to
what was, at that time, zero prison time would result in an aggregate sentence of 18
months in prison. Additionally, the Supreme Court of Ohio has held that trial courts
do not have the authority to impose community-control sanctions on one felony
count to be served consecutively to a prison term imposed on another felony count.
State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, ¶ 24, 134 N.E.3d 164.
Here, the supervision sentence imposed by the federal courts, which is analogous to
Ohio’s community-control sanction, was imposed first. Although the Supreme
Court of Ohio did not specifically address this issue, the logic in Hitchcock would
apply and make it unreasonable for a trial court to impose a prison term consecutive
to a community-control sanction.
-3-
Case No. 6-21-11
{¶4} A review of the record and the brief filed by the State indicates that the
sentence may have been intended to run consecutive to any prison time imposed at
the violation hearing on November 1, 2021. The problem is that when this sentence
occurred on October 6, 2021, any sentence from a future hearing was speculative.
This Court recently reaffirmed prior holdings “that when a trial court orders a
sentence to run consecutively to sentences that had not yet been imposed, the trial
court has exceeded the authority granted to it by statute.” State v. Kavanaugh, 3d
Dist. Hardin No. 6-21-07, 2021-Ohio-4368 ¶ 7, citing State v. Ferguson, 3d Dist.
Union No. 14-02-14, 2003-Ohio-866 and State v. Sears, 3d Dist. Wyandot No. 16-
02-07, 2002-Ohio-6257. By imposing a sentence to run consecutive to one, which
had yet to be imposed by another court, the trial court exceeded the scope of its
statutory authority. For these reasons, the assignment of error is sustained.
{¶5} Having found prejudicial error to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Hardin County
is reversed and the matter is remanded for further proceedings in accordance with
this opinion.
Judgment Reversed
And Cause Remanded
ZIMMERMAN, P.J. and MILLER, J., concur.
/hls
-4-