State v. Roberts , 2016 Ohio 5319 ( 2016 )

[Cite as State v. Roberts, 2016-Ohio-5319.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103307
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BARRY D. ROBERTS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-592427-A
BEFORE: Stewart, J., Jones, A.J., and Keough, J.
RELEASED AND JOURNALIZED: August 11, 2016
ATTORNEY FOR APPELLANT
Richard Agopian
1415 West Ninth Street, Second Floor
Cleveland, OH 44113
ALSO LISTED:
Barry D. Roberts, pro se
Inmate No. 671791
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Mary McGrath
Fallon Radigan
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Barry Roberts pleaded guilty to one count of domestic
violence and one count of endangering children. The court imposed a 36-month prison
term for the domestic violence count and time-served on the misdemeanor endangering
children count. The court also ordered Roberts “to have no contact with the victim.”
{¶2} The sole assignment of error in this appeal is premised on State v. Anderson,
143 Ohio St. 3d 173, 2015-Ohio-2089, 35 N.E.3d 512, where the Supreme Court held that
“the General Assembly intended prison and community-control sanctions as alternative
sentences for a felony offense[,]” so that “when a prison term and community control are
possible sentences for a particular felony offense, absent an express exception, the court
must impose either a prison term or a community-control sanction or sanctions.” Id. at ¶
31. A no-contact order is a form of community control sanction, id. at ¶ 17, so it is
generally illegal for the court to impose a felony sentence and a no-contact order. Id. at ¶
32.
{¶3} The state concedes that “the no contact order is contrary to the holding in
Anderson” because the court had no authority to order both a prison term and a
community control sanction for the offenses that Roberts committed. It suggests that the
sentencing entry be modified to delete the no-contact order, particularly given that the
court did not mention the no-contact order during sentencing (at sentencing, Roberts
voluntarily agreed to avoid contact with the victims). We agree with the state’s
concession and its suggested disposition of this appeal. We sustain the assignment of
error and remand so that the court can issue a new sentencing entry that deletes the
no-contact order.
{¶4} Judgment reversed and remanded.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE
LARRY A. JONES, SR., A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR