State v. Ellinger , 2020 Ohio 555 ( 2020 )

[Cite as State v. Ellinger, 2020-Ohio-555.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case Nos. 2019 CA 00015 and
BRITANY N. ELLINGER 2019 CA 00016
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case Nos. 2015 CR 00478 and
2016 CR 00070
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 18, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ THOMAS R. ELWING
ASSISTANT PROSECUTOR 60 West Columbus Street
239 West Main Street, Suite 101 Pickerington, Ohio 43147
Lancaster, Ohio 43130
Fairfield County, Case Nos. 2019 CA 00015 and 2019 CA 00016 2
Wise, John, P. J.
{¶1} Appellant Britany N. Ellinger appeals from the decisions of the Fairfield
County Court of Common Pleas imposing a prison term as a sanction for violating
community control.
{¶2} Appellee is State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The undisputed facts and procedural history are as follows:
{¶4} On December 11, 2015, in case 15-CR-478, a seven-count indictment was
filed with the Fairfield County Common Pleas Court charging Appellant Britany N. Ellinger
with five (5) felonies and two (2) misdemeanors.
{¶5} On February 25, 2016, in case 16-CR-70, a bill of information was filed in
the same court charging Ellinger with twelve additional felonies.
{¶6} On March 1, 2016, the trial court conducted a combined plea and
sentencing hearing on both cases. Pursuant to a negotiated plea agreement, certain
charges were either amended, dismissed, or merged as allied offenses for purposes of
sentencing. Ultimately, Ellinger was sentenced on two counts in case 15-CR-478 and six
counts in case 16-CR-70 as follows:
15-CR-478
Count 1: Burglary (F3) - 5 years community control sanctions
Count4: Burglary (F3) - 5 years community control sanctions
16-CR-70
Count 1: Burglary (F3) - 5 years community control sanctions
Count 3: Burglary (F3) - 5 years community control sanctions
Fairfield County, Case Nos. 2019 CA 00015 and 2019 CA 00016 3
Count 6: Burglary (F3) - 5 years community control sanctions
Count 8: Burglary (F3) - 5 years community control sanctions
Count 10: Burglary (F2) - 3 years in prison
Count 11: Burglary (F3) - 5 years community control sanctions
{¶7} All eight of the above sentences were ordered to run consecutively and the
five years of community control sanctions imposed on seven of the counts was ordered
to begin upon Ellinger's release from prison on the three-year term imposed for Count 10
of case 16-CR-70.
{¶8} On March 30, 2017, the trial court granted judicial release on Count 10 and
Ellinger began serving a five-year period of community control sanctions as to all eight
counts for which she had been sentenced on the two cases.
{¶9} Ellinger would later appear before the trial court on February 26, 2018, and
admit to violating the terms of community control. The matter was deferred for disposition
until a hearing on March 8, 2018, where the trial court allowed Ellinger to remain on
community control sanctions, but ordered her to complete an in-patient program at a
community-based correctional facility.
{¶10} On March 4, 2019, Ellinger again appeared before the trial court and
admitted to violating the terms of community control. This time, the trial court imposed a
total prison sanction of seven (7) years. Twelve-month, consecutive prison terms were
ordered on seven of the eight counts for which Ellinger was under community control. On
the one remaining count, Count 10, of Case 16-CR-70, the trial court ordered that
community control sanctions would continue after service of the seven-year prison term.
Fairfield County, Case Nos. 2019 CA 00015 and 2019 CA 00016 4
{¶11} At a hearing conducted on March 4, 2019, the trial court found that Appellant
had violated the terms of her community control sanctions. The trial court imposed a
prison term as a sanction. Entries journalizing the revocation of community control and
the imposition of a prison term were filed on March 8, 2019.
{¶12} Ellinger now appeals from the decision of the trial court to revoke community
control and impose a prison term, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM AS A
SANCTION FOR VIOLATING COMMUNITY CONTROL WHERE THE TRIAL COURT
FAILED TO PROVIDE STATUTORILY REQUIRED NOTICE OF THE SPECIFIC
PRISON TERM THAT MAY BE IMPOSED FOR A COMMUNITY CONTROL VIOLATION.
{¶14} “II. THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM AS A
SANCTION FOR VIOLATING COMMUNITY CONTROL WHERE THE SENTENCE
PLACING APPELLANT ON COMMUNITY CONTROL SANCTIONS WAS NOT
AUTHORIZED BY STATUTE AND WAS THEREFORE VOID.”
II.
{¶15} For purposes of judicial economy, we shall address Appellant’s
assignments of error out of order. In her second assignment of error, Appellant argues
the trial court erred in imposing a prison term as a sanction for violating community control
in this case. We agree.
{¶16} We begin by noting that Appellee concedes the trial court erred in
sentencing Appellant to a term of community control to be served consecutively to a term
of imprisonment.
Fairfield County, Case Nos. 2019 CA 00015 and 2019 CA 00016 5
{¶17} We previously approved sentences in which a trial court imposed
community control consecutive to a prison term. In State v. Hitchcock, we determined that
in a case in which a defendant is sentenced on three separate counts, a trial court may
impose two sixty-month prison terms, consecutive to each other (Counts I and II), and
consecutive to a term of community control (Count III). 5th Dist. Fairfield No. 16-CA-41,
2017-Ohio-8255, appeal accepted, 152 Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 877.
See also, State v. Williams, 5th Dist. Fairfield No. 17-CA-43, 2018-Ohio-4580, ¶ 22,
motion to certify allowed, 154 Ohio St.3d 1519, 2019-Ohio-768, 118 N.E.3d 257.
{¶18} The Ohio Supreme Court has now overruled our decision, determining as
follows in State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, at ¶
24:
Because no provision of the Revised Code authorizes trial courts to
impose community-control sanctions on one felony count to be served
consecutively to a prison term imposed on another felony count, we must
conclude that trial courts may not do so. We accordingly * * * conclude that
unless otherwise authorized by statute, a trial court may not impose
community-control sanctions on one felony count to be served
consecutively to a prison term imposed on another felony count.
{¶19} Therefore, we conclude that in the instant case, the trial court was not
authorized to impose a term of community control consecutive to a term of imprisonment.
Appellant’s sentences are reversed and vacated, and this matter is remanded to the trial
court for further proceedings.
{¶20} Appellant’s first assignment of error is therefore sustained.
Fairfield County, Case Nos. 2019 CA 00015 and 2019 CA 00016 6
II.
{¶21} Based on our disposition of Appellant’s second assignment of error and the
need for resentencing in this matter, we decline to address Appellant’s first assignment
of error.
{¶22} We accordingly reverse the judgment of the Fairfield County Court of
Common Pleas and remand this case to the trial court for resentencing consistent with
this opinion. Hitchcock, supra, 2019-Ohio-3246 at ¶ 25.
{¶23} The judgment of the Fairfield County Court of Common Pleas is reversed
and remanded for further proceeding consistent with the law and this opinion.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0206