State v. Anderson , 2016 Ohio 7044 ( 2016 )

[Cite as State v. Anderson, 2016-Ohio-7044.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102427
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARLO A. ANDERSON
DEFENDANT-APPELLANT
DECISION EN BANC:
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585997-A
BEFORE: The En Banc Court
RELEASED AND JOURNALIZED: September 29, 2016
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue
Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John Patrick Colan
Anthony Thomas Miranda
Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} There is arguably nothing more unassailable than the trial court’s discretion
to fashion final sentences. Any legislative or legal decision seen as limiting that
discretion will arouse passionate debate.1 Nevertheless, as an intermediate appellate
court, we must constrain ourselves to the questions of law, and apply not only the
statutory language as written but also the clear precedent of the Ohio Supreme Court. In
this case, the trial court imposed a sentence beyond that which it was authorized to
impose, and therefore, we must reverse. We are not so much limiting a trial court’s
sentencing authority as we are recognizing the boundaries of the legislative grant of
discretion.
{¶2} The trial judge wanted to maintain personal supervision over Marlo Anderson
after his release from prison for the apparent and noble purpose of ensuring Anderson
would stay on a path to rehabilitation. This resulted in the dual imposition of postprison
supervision by two separate entities and will result in the unnecessary fiscal burden
imposed on two state agencies charged with the same task. This goal of allowing the
court to set the appropriate sanctions and conditions on offenders leaving prison could
have been accomplished in an authorized manner through the procedures outlined under
R.C. 2967.29, which provides a method for the court of common pleas to cooperate with
1Mary Beth Lane, The Columbus Dispatch, Judges are offended by new law on sentencing
(Mar. 4, 2012); http://www.dispatch.com/content/stories/local/2012/03/04/
judges-are-offended-by-new-law-on-sentencing.html (accessed June 6, 2016) (article explained, from
trial court judges’ perspective, how application of a new statute granting an executive agency certain
authority in sentencing co-opted judicial discretion).
the Department of Rehabilitation and Correction in supervising offenders. R.C.
2967.29(B)(4). The court, after consultation with the board of county commissioners,
could enter into an agreement with the department of corrections allowing the court and
the parole board to make joint decisions relating to parole and postrelease control to the
extent permitted by section 2967.28 of the Revised Code. If such an agreement was in
place in Cuyahoga County, there would have been no need for the dual imposition of
postprison monitoring because the trial court could cooperate in structuring the guidelines
of the defendant’s postprison monitoring. R.C. 2967.29(B)(6).
{¶3} Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State
Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court determined that a
conflict existed between the original panel majority decision in State v. Anderson, 8th
Dist. Cuyahoga No. 102427, 2015-Ohio-5136, and State v. Heidrick, 8th Dist. Cuyahoga
No. 96822, 2012-Ohio-1739, ¶ 8. Although our original panel decision in Anderson,
2015-Ohio-5136, was not the first to question prior decisions allowing the imposition of
consecutive community control sanctions, it is nonetheless the vehicle chosen to resolve
our intradistrict differences. State v. Abernathy, 8th Dist. Cuyahoga No. 102716,
2015-Ohio-4769, ¶ 8-10 (trial court is not authorized to impose consecutive community
control jail terms); see also State v. Dansby-East, 8th Dist. Cuyahoga Nos. 102656,
102657, 102658, and 102659, 2016-Ohio-202, ¶ 21; State v. Peterson, 8th Dist. Cuyahoga
No. 102428, 2015-Ohio-4581, ¶ 13 (recognizing that the Ohio Supreme Court’s decision
in Barnhouse only applies to preclude the consecutive imposition of community control
sanctions). In light of the conflict, we agreed to hear the matter en banc to clarify this
district’s black-letter law.2
{¶4} Before issuing the original panel decision, in light of newer developments in
the law impacting the issues as framed by Anderson, this court requested the parties to
brief whether
R.C. 2929.13(A) or 2929.41(A) or any other statutory provision allow for
the consecutive imposition of community control sanctions, either with a
prison term or without a prison term, pursuant to State v. Barnhouse, 102
Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, or State v. Anderson,
143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512.
The supplemental briefing was sought in accordance with State v. Tate, 140 Ohio St.3d
442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, and because this court recognizes that
sentences not authorized by law are void. State v. T.M., 8th Dist. Cuyahoga No. 101194,
2014-Ohio-5688, ¶ 25 (Stewart, J., dissenting), citing State v. Simpkins, 117 Ohio St.3d
420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 20, and State v. Hooks, 135 Ohio App.3d 746,
750, 735 N.E.2d 523 (10th Dist.2000); State v. Ocel, 7th Dist. Jefferson No. 08 JE 22,
2009-Ohio-2633, ¶ 2; State v. Keslar, 4th Dist. Hocking No. 98CA20, 1999 Ohio App.
LEXIS 5570, *17 (Nov. 17, 1999), citing State v. Bruce, 95 Ohio App.3d 169, 642
N.E.2d 12 (12th Dist.1994), and State v. Thomas, 80 Ohio App.3d 452, 609 N.E.2d 601(3d Dist.1992). Both parties responded.
2The original announcement of decision, State v. Anderson, 8th Dist. Cuyahoga No. 102427,
2015-Ohio-5136, released December 10, 2015, is hereby vacated. This opinion is the court’s
journalized decision in this appeal.
{¶5} The issue posed here is whether a trial court may impose a term of residential
or nonresidential community control sanctions on one felony count, to be served
consecutively to a term of imprisonment imposed on another. We must answer that
question in the negative. The legislature has not authorized a trial court to impose
community control sanctions to be served consecutively to sanctions imposed on separate
counts, except in limited but expressly delineated circumstances that are inapplicable to
Anderson’s sentence. The original panel in our Anderson appeal followed Abernathy in
light of State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512,3 and,
after reviewing Anderson’s assigned errors, the panel acknowledged the overlooked
decision in Barnhouse.
{¶6} In State v. Anderson, the Supreme Court of Ohio did not directly deal with the
consecutive imposition of a community control sanction and a prison term.
Nevertheless, State v. Anderson reaffirmed an apparently forgotten limitation to a trial
court’s authority in sentencing. In State v. Anderson, the Ohio Supreme Court
unambiguously held that “‘the only sentence which a trial judge may impose is that
provided for by statute * * *.’” Id. at ¶ 12, citing State v. Beasley, 14 Ohio St.3d 74, 75,
471 N.E.2d 774 (1984), quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d
811 (1964); see also State v. Morris, 55 Ohio St.2d 101, 112, 378 N.E.2d 708 (1978),
3In light of the confusion that will inevitably follow from having to discuss multiple “State v.
Anderson” cases, the Ohio Supreme Court’s decision will be referred to as “State v. Anderson,” while
any reference to Anderson, 8th Dist. Cuyahoga No. 102427, 2015-Ohio-5136, our original majority
opinion, will be denoted as such for the sake of clarity.
citing Toledo Mun. Court v. State ex rel. Platter, 126 Ohio St. 103, 184 N.E. 1 (1933) (“It
has long been recognized in this state that the General Assembly has the plenary power to
prescribe crimes and fix penalties.”); see also Wilson v. State, 5 N.E.3d 759, 762
(Ind.2014), quoting Wilson v. State, 988 N.E.2d 1221, 1224 (Ind.2013) (Robb, C.J.,
dissenting) (“sentencing is a creature of the legislature”; “courts are limited to imposing
sentences that are authorized by statute, rather than only being limited to sentences that
are not prohibited by statute.” (Emphasis sic.)).
{¶7} Appellate courts had all too often flipped that proposition of law on its head
and affirmed sentences under the rationale that the legislature had not specifically
precluded the imposed sentence, including the panel’s decision in Heidrick. See, e.g.,
State v. Anderson, 9th Dist. Summit No. 26640, 2014-Ohio-1206, ¶ 34; Heidrick, 8th
Dist. Cuyahoga No. 96822, 2012-Ohio-1739, at ¶ 12 (noting that nothing in the statute
precludes the imposition of the appealed sentence, and therefore, the conviction was
affirmed); see also State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-5677, ¶
4; State v. Meredith, 4th Dist. Athens No. 02CA5, 2002-Ohio-4508, ¶ 13. Therefore, the
State v. Anderson decision undermined the rationale supporting our decision in Heidrick.
Accordingly, the time was ripe to question the Heidrick outcome.
{¶8} With that background and analytical framework in mind, we can now turn to
the merits of the case, in which Marlo Anderson appeals the trial court’s imposition of
community control sanctions (two years of community control including an indefinite
term of confinement in a community-based correctional facility (“CBCF”)) on the identity
fraud count, a felony of the fifth degree, to be served consecutively to a three-year
aggregate sentence of imprisonment (consecutive terms of one year on a firearm
specification and two years for robbery).
{¶9} Anderson was charged in pertinent part with three felonies, abduction,
robbery, and identity theft, for luring a victim into Anderson’s car and robbing him at
gunpoint. When the victim entered the car, Anderson and three accomplices took the
victim’s cell phone and bank card. One of the attackers used a Taser on the back of the
victim’s neck several times to torture the victim into divulging his PIN. The victim
finally relented, and the quartet proceeded to three separate ATMs where Anderson posed
as the victim to withdraw cash. When the attackers stopped at one of the ATMs, the
victim managed to escape. Anderson drove by the victim’s home in an attempt to find
him.
{¶10} Anderson filed the current appeal after pleading guilty and being sentenced.
Anderson first claims the trial court failed to “properly” consider the merger issue
regarding the robbery and abduction charges, arguing that his state of mind, or animus,
was never addressed. We can summarily dispose of his first argument. In this case, the
trial court determined that the acts constituting the robbery and those constituting the
abduction were committed with separate conduct. Because the acts were deemed to be
committed separately, no inquiry into the defendant’s animus was necessary. The Ohio
Supreme Court held that
offenses cannot merge and the defendant may be convicted and sentenced
for multiple offenses: (1) [if] the offenses are dissimilar in import or
significance — in other words, each offense caused separate, identifiable
harm [or was committed against separate victims], (2) [if] the offenses were
committed separately, [or] (3) [if] the offenses were committed with
separate animus or motivation.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. The merger
analysis was stated in the disjunctive: any one of the factors warrants separate
punishment. The trial court was not required to determine Anderson’s animus and did
not err by avoiding any discussion of Anderson’s “state of mind.”
{¶11} Anderson also challenges the imposition of a two-year term of community
control to be served consecutively to his three-year term of imprisonment — specifically
imposed by the trial court pursuant to R.C. 2929.14(C)(4). A mandatory three-year term
of postrelease control was also imposed. As already alluded to, we agree with
Anderson’s claim that the trial court was without authority to impose the residential and
nonresidential community control sanctions on felony counts to be served consecutively
to the prison term on the undisturbed counts. As a result, the community control
sanctions imposed on the identity fraud count, a felony of the fifth degree, are void as a
matter of law.
{¶12} The legislature must provide the trial court with authority to impose
community control sanctions to be served consecutive to a prison term imposed on a
separate felony count. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35
N.E.3d 512. The first step of our analysis is to classify the community control sanctions
with respect to the statutory sentencing scheme. The community control sanctions in this
case include both residential and nonresidential sanctions. Unfortunately, we have to
analyze those sanctions differently. The residential sanctions, as will be discussed in
further detail, are sentences of imprisonment within the meaning of R.C. 2929.41(A) that
must be served concurrently due to the lack of an exception. Nonresidential sanctions
are not sentences of imprisonment, so the analysis on that issue hinges on the legislature’s
grant of authority to impose the nonresidential sanctions consecutive to a prison term
imposed on a separate count. State v. Anderson.
{¶13} For this reason, we begin our review with a discussion of the residential
sanction of CBCF and how those sanctions are impacted by the plain and ordinary
language codified in R.C. 2929.41. In Ohio, R.C. 2929.41 controls the trial court’s
authority to impose a prison or jail term, or other sentence of imprisonment consecutive to
another such term. R.C. 2929.41(A) provides:
Except as provided in division (B) of this section, division (C) of section
2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a
prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United
States. Except as provided in division (B)(3) of this section, a jail term or
sentence of imprisonment for misdemeanor shall be served concurrently
with a prison term or sentence of imprisonment for felony served in a state
or federal correctional institution.
(Emphasis added.) There are only three exceptions to the concurrent service of jail or
prison terms or a sentence of imprisonment: (1) for misdemeanor sentences pursuant to
R.C. 2929.41(B); (2) for felony prison terms pursuant to R.C. 2929.14(C)(4); or (3) for
sentences for certain violent sex offenses pursuant to R.C. 2971.03.
{¶14} The first and third exceptions are inapplicable to the residential term
imposed at a CBCF. Neither party claims that R.C. 2971.03 is applicable, and R.C.
2929.14(C)(4) is limited to the imposition of consecutive “prison terms.” State v.
Alexander, 8th Dist. Cuyahoga No. 102708, 2016-Ohio-204, ¶ 6; State v. Maloney, 12th
Dist. Clermont No.CA99-01-006, 1999 Ohio App. LEXIS 4600, *7 (Sept. 27, 1999);
State v. Kroger, 12th Dist. Clermont No. CA99-05-050, 2000 Ohio App. LEXIS 1393(Apr. 3, 2000). “Prison” is defined as a residential facility used for the confinement of
convicted felony offenders under the control of the Department of Rehabilitation and
Correction. R.C. 2929.01(AA). On the other hand, “‘[c]ommunity control sanction’
means a sanction that is not a prison term and that is described” in sections 2929.15
through 2929.18 of the Revised Code. (Emphasis added.) R.C. 2929.01(E). A term of
confinement in a CBCF is a community control sanction. State v. Richmond, 8th Dist.
Cuyahoga No. 97531, 2012-Ohio-3946, ¶ 13; R.C. 2929.16(A)(1). Courts are authorized
to impose CBCF and other residential sanctions as a community control sanction pursuant
to R.C. 2929.16. As a result, residential community control sanctions are not prison
terms as statutorily defined and R.C. 2929.14(C)(4) is simply inapplicable.
{¶15} A term of residential sanctions cannot be imposed consecutive to a prison
term because as the Ohio Supreme Court recognized, residential sanctions are sentences
of imprisonment. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, at
¶ 12; State v. Peterson, 8th Dist. Cuyahoga No. 102428, 2015-Ohio-4581, ¶ 13
(acknowledging that the Barnhouse decision precludes the imposition of consecutive
residential sanctions); Abernathy, 8th Dist. Cuyahoga No. 102716, 2015-Ohio-4769, ¶
8-10; Dansby-East, 8th Dist. Cuyahoga Nos. 102656, 102657, 102658, and 102659,
2016-Ohio-202, ¶ 21. There is no definition for “sentence of imprisonment” in the
Revised Code. R.C. 1.05(A) provides that “imprisoned” or “imprisonment” means being
“imprisoned under a sentence imposed for an offense * * * in * * * a community-based
correctional facility.” Serving a term in a CBCF is “imprisonment” as statutorily
defined.
{¶16} It stands to follow that the imposition of a term at a CBCF is a “sentence of
imprisonment.” Barnhouse. R.C. 2929.41(A) unambiguously provides that “a prison
term, jail term, or sentence of imprisonment shall be served concurrently with any other
prison term, jail term, or sentence of imprisonment imposed by a court of this state”
unless an exception applies. Because no exceptions in R.C. 2929.41(A) authorize the
consecutive service of a “sentence of imprisonment,” a term of imprisonment at a CBCF
cannot be imposed consecutive to a prison term. Abernathy; Dansby-East; Peterson.
We acknowledge that the trial court imposed a six-month term at a CBCF during the
sentencing hearing, but in the final sentencing entry indicated the term at a CBCF was
indefinite. In light of the fact that we find no authority to impose any term at a CBCF to
be served consecutive to a prison term, correcting the record at this point in time would
be futile.
{¶17} The only remaining question is whether any nonresidential community
control sanctions pursuant to R.C. 2929.17 may be imposed consecutive to a prison term.
The state has not cited any section of the Revised Code authorizing the imposition of
consecutive nonresidential community control sanctions, or for authority for those
sanctions to take effect following an offender’s release from a prison term.
{¶18} The only notable, and express, exception to this lack of authority to impose
residential or nonresidential sanctions consecutive to a prison term on a separate count is
for certain OVI offenses. See R.C. 2929.15(A)(1). In that section, the legislature
expressly authorized the imposition of community control sanctions to be served upon the
offender’s release from the mandatory prison term when the sanctions are imposed on a
third- or fourth-degree felony OVI offense. R.C. 2929.15(A)(1), provides:
[I]n addition to the mandatory prison term or mandatory prison term and
additional prison term imposed under that division, the court also may
impose upon the offender a community control sanction or combination of
community control sanctions under section 2929.16 or 2929.17 of the
Revised Code, but the offender shall serve all of the prison terms so
imposed prior to serving the community control sanction.
(Emphasis added.) Although another panel in this district cited R.C. 2929.15(A)(1) for
the proposition that an offender shall serve all prison terms imposed before serving any
community control sanction, the legislature expressly limited application of that exception
to sentences imposed pursuant to divisions (G)(1) and (2) of section 2929.13 of the
Revised Code, for certain felony OVI offenses. State v. May, 8th Dist. Cuyahoga No.
97354, 2012-Ohio-2766, ¶ 27-28. That portion of R.C. 2929.15(A)(1) had no
applicability to the sexual battery conviction underlying the May case and, more
importantly, has no applicability to the current facts of this case. Id. at ¶ 1. We were
wrong and now overrule May inasmuch as that panel concluded that R.C. 2929.15(A)(1)
authorizes all community control sanctions to commence after service of the prison term.
{¶19} Sections R.C. 2929.13 through 2929.17 are otherwise silent with respect to
imposing nonresidential sanctions to be served consecutively to prison terms. That
legislative silence is deafening. In the absence of an express grant of authority to order
the imposition of nonresidential sanctions to be served consecutive to prison terms, those
sanctions cannot be so imposed. State v. Anderson, 143 Ohio St.3d 173,
2015-Ohio-2089, 35 N.E.3d 512; see, e.g., R.C. 2929.15(A)(1) (demonstrating the
legislature’s knowledge of the language necessary to create authority for the imposition of
community control sanctions to be served after the offender is released from a prison or
jail term, or other sentence of imprisonment).
{¶20} Further, R.C. 2929.41 only addresses prison terms, jail terms, or sentences
of imprisonment. Nonresidential community control sanctions are not prison terms.
R.C. 2929.01(E). They are also not jail terms. R.C. 2929.01(S) (“jail term” means a
term in a jail that is imposed pursuant to R.C. 2929.24 and 2929.25, both of which pertain
to misdemeanor sentencing). Because nonresidential sanctions are not prison or jail
terms, the facts of this case do not involve R.C. 2971.03, and because the state provided
no statutory authority for the imposition of nonresidential community control sanctions to
be served consecutively to other sentences of imprisonment, Anderson’s sentence on the
identity fraud count is void.
{¶21} Our previous decisions consistently overlooked the implications of
Barnhouse, and therefore, we can no longer rely on any of those previous decisions to
authorize the sentence at issue. As the state notes, courts have routinely held that
community control sanctions on one count can be imposed consecutively to a prison term
on another. See, e.g., State v. Kinder, 5th Dist. Delaware No. 03CAA12075,
2004-Ohio-4340; Purvis, 8th Dist. Cuyahoga No. 101608, 2015-Ohio-1149;4 Heidrick,
8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8; State v. Leedy, 4th Dist. Meigs Nos.
13CA7 and 13CA8, 2015-Ohio-1718, ¶ 7-8, citing Heidrick at ¶ 8-9; State v. Randolph,
12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350, ¶ 6-7; State v. Ramsey, 6th Dist.
Wood No. WD-04-004, 2004-Ohio-5677, ¶ 4. The rationale in all those cases relied on
the proposition that the legislature had not prohibited the imposition of consecutive
community control sanctions, and therefore, the courts concluded that the trial court then
possessed the authority to impose the particular sentence. That inverted rationale was
4In addition and for a more basic reason, we can no longer follow the proposition of law set
forth in Purvis — that consecutive residential sanctions pursuant to R.C. 2929.16 can be imposed on
multiple felonies. The Purvis panel relied on State v. Barnhouse, 4th Dist. Athens No. 02CA22,
2002-Ohio-7082, for a proposition of law subsequently overturned by the Ohio Supreme Court.
Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, at ¶ 12.
overruled in State v. Anderson and demonstrates why we can no longer rely on our
decisions in Heidrick.
{¶22} The only other analysis supporting the Heidrick line of decisions was that
R.C. 2929.13(A) provides that a court that imposes “a sentence upon an offender for a
felony may impose any sanction or combinations on the offender.” (Emphasis added.)
Heidrick at ¶ 7; see also State v. Santiago, 8th Dist. Cuyahoga No. 102433,
2015-Ohio-4674, ¶ 5, 16 (a combination of sanctions can be imposed on an individual
felony count and noting that the defendant did not challenge the imposition of community
control sanctions to be served consecutive to the prison term); State v. Martin, 8th Dist.
Cuyahoga No. 100723, 2014-Ohio-3913, ¶ 9 (relying on the flawed precedent from State
v. May affirming consecutive service of community control sanctions on separate counts);
State v. Carswell, 8th Dist. Cuyahoga Nos. 101313 and 101314, 2015-Ohio-764, ¶ 8 (also
relying on Martin and May). R.C. 2929.13(A), however, is limited to authorizing the
imposition of a combination of sanctions on a singular felony offense and is silent as to
imposing consecutive service of community control sentences upon multiple felonies.
Barnhouse at ¶ 15; State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824,
¶ 9; Peterson, 8th Dist. Cuyahoga No. 102428, 2015-Ohio-4581, at ¶ 13. R.C.
2929.13(A), 2929.15(A)(1), 2929.16, and 2929.17 employ similar language authorizing
trial courts to impose a combination of community control sanctions for a single “felony
offense.” Peterson. As the Ohio Supreme Court noted in Barnhouse, the legislature’s
indication that a combination of sanctions may be imposed for a felony offense is
immaterial to resolving whether the sanctions can be imposed consecutively to one
another. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, at ¶ 15. In
light of the similarity of the language carried throughout the pertinent sentencing statutes,
we see no reason to limit the Barnhouse decision solely based on the court’s analyzing
R.C. 2929.16 alone. Authorizing the combination of community control sanctions for a
single felony offense is not authorization to impose consecutive service of those sanctions
imposed on multiple felonies under a plain reading of the language. Id.; Peterson.
{¶23} Finally, although not relevant, we note that any reliance on R.C. 2951.07
and 2929.141 to support the trial court’s authority to impose consecutive community
control sanctions would be misplaced. Each section addresses how a sentence is
executed, not how it is imposed in the first instance. R.C. 2929.141(A) provides:
Upon the conviction of or plea of guilty to a felony by a person on
post-release control at the time of the commission of the felony, the court
may terminate the term of post-release control, and the court may [as one of
two options], * * * [i]mpose a sanction under sections 2929.15 to 2929.18
of the Revised Code for the violation that shall be served concurrently or
consecutively, as specified by the court, with any community control
sanctions for the new felony.
Id. R.C. 2929.141 deals with penalties for the violation of postrelease control and has no
applicability to sentencing offenders for the first time. We need not discuss that section
further, although it is noteworthy that the legislature is well aware of the language
required to authorize the consecutive imposition of community control sanctions. R.C.
2951.07, in turn, provides as follows:
A community control sanction continues for the period that the judge or
magistrate determines and, subject to the five-year limit specified in section
2929.15 or 2929.25 of the Revised Code, may be extended. If the offender
under community control absconds or otherwise leaves the jurisdiction of
the court without permission from the probation officer, the probation
agency, or the court to do so, or if the offender is confined in any institution
for the commission of any offense, the period of community control ceases
to run until the time that the offender is brought before the court for its
further action.
(Emphasis added.) R.C. 2951.07.
{¶24} For the sake of argument, we will presume the possibility that the second
sentence of R.C. 2951.07 could be read as the legislative grant of authority to support the
trial court’s decision, in a final sentencing entry, to order the community control sanctions
to be served following the offender’s release from prison. The argument would then
follow that if the community control period ceases to run upon the offender’s
confinement, the trial court could impose community control sanctions to be served
following the offender’s release from prison by simply imposing both confinement and
community control sanctions simultaneously through operation of R.C. 2951.07.
{¶25} There is an inherent flaw with that argument. R.C. 2951.07 applies to all
sentences involving community control sanctions, whether imposed upon multiple counts
or as a combination of sanctions on a single felony count. We need to approach our
analysis with that in mind. If we interpreted R.C. 2951.07 as the legislative authority for
the imposition of community control sanctions to be served following an offender’s
release from a prison term in this case, or as authority supporting the imposition of
consecutive service of those sanctions, we would cause inextricable conflicts with other
statutory sections.
{¶26} For example, R.C. 2929.15(A)(1) is a specific grant of authority to impose
community control sanctions to be served following an offender’s release from a prison
term imposed on a felony OVI conviction. If we were to read R.C. 2951.07 as providing
authority to impose all community control sanctions to be served following an offender’s
release from any jail or prison term, or other sentence of imprisonment in general, the
language in R.C. 2929.15(A)(1) would be superfluous because R.C. 2951.07 as a general
grant of authority would subsume the more limited grant of authority in R.C.
2929.15(A)(1).
{¶27} The Ohio Supreme Court recently provided guidance on resolving this type
of seemingly contradictory, statutory language. State v. Polus, Slip Opinion No.
2016-Ohio-655. In that case, the trial court imposed a jail term on a misdemeanor
offense to be served consecutively to a prison term imposed on the felony offense
pursuant to R.C. 2929.41(B)(1). The appellate court affirmed, claiming an ambiguity in
the statute because R.C. 2929.41(A) contained two pertinent exceptions to concurrent
service of a sentence of misdemeanor imprisonment, one for misdemeanor offenses in
general, imposed pursuant to R.C. 2929.41(B)(1), and another more specific provision
referencing misdemeanor violations of R.C. 4510.11, 4510.14, 4510.16, 4510.21, or
4511.19 imposed to be served consecutively to convictions under R.C. 2903.04, 2903.06,
2903.07, 2903.08, or 4511.19. There was no dispute that the more specific subdivision
was not applicable, so the trial court’s only authority to impose consecutive service was
through R.C. 2929.41(B)(1), in which the lower courts determined that the legislature
intended a general grant of authority for all misdemeanor sentences.
{¶28} As the Ohio Supreme Court determined, the lower courts’ interpretation —
that R.C. 2929.41(B)(1) authorized consecutive service of all misdemeanor sentences in
general — caused the more specific provision of R.C. 2929.41(B)(3) to be superfluous
because the more general rule of subdivision (B)(1) subsumed the limited exception to
concurrent sentencing delineated in division (B)(3). Polus at ¶ 11-12. Courts must
presume that all statutory language was inserted for a reason. Id. In order to give
meaning to R.C. 2929.41(B)(3), application of the exception provided in R.C.
2929.41(B)(1) was also limited to certain enumerated misdemeanors instead of being
interpreted as a general exception.
{¶29} In this case, therefore, we cannot read R.C. 2951.07 as authorization for the
trial court’s imposition of any community control sanctions to be served following the
offender’s release from any prison or jail term. In doing so, we would be rendering the
more specific language of R.C. 2929.15(A)(1) superfluous. If R.C. 2951.07 is read to
authorize in the general sense that which R.C. 2929.15(A)(1) did in the more limited and
specific sense, there would be no need for the limited express grant of authority.
{¶30} Thus we can only conclude that the legislature limited the trial court’s
authority — to impose community control sanctions to be served following the offender’s
release from a prison term — to certain felony offenses. R.C. 2929.15(A)(1); Anderson
(“absent an express exception, the court must impose either a prison term or a
community-control sanction or sanctions” on an individual felony, although the
combination of sanctions in R.C. 2929.13(A) was not discussed); but see Peterson, 8th
Dist. Cuyahoga No. 102428, 2015-Ohio-4581, at ¶ 13 (R.C. 2929.15 authorizes the trial
court to generally impose a combination of community control sanctions on a single
felony count). R.C. 2951.07 is, therefore, a statute that guides courts on the execution of
community control sanctions, not the imposition of those sanctions. As such, the
statutory section is irrelevant to determining the limitations placed on a trial court’s
authority to impose community control sanctions to be served following the offender’s
release from a prison term imposed on a separate count.
{¶31} In light of the foregoing, we must vacate Anderson’s conviction as it
pertains to the community control sanctions imposed on the identity fraud count based on
our analysis from Abernathy, Dansby-East, and Peterson. Because there is no statutory
authority for the imposition of community control sanctions to be served consecutive to,
or following the completion of, a prison or jail term or other sentence of imprisonment,
the trial court was without authority to impose the same. The sentence imposed on the
identity fraud count is void and must be vacated.
{¶32} Anderson’s sentence on the identify theft is vacated, and the case is
remanded for resentencing on that count alone. Anderson’s conviction for robbery and
abduction is otherwise affirmed.
It is ordered that appellant and appellee share 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.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., J.,
EILEEN T. GALLAGHER, J.,
LARRY A. JONES, SR., A.J.,
KATHLEEN ANN KEOUGH, J., and
TIM McCORMACK, J., CONCUR
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY
MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION
PATRICIA ANN BLACKMON, J.,
EILEEN A. GALLAGHER, J.,
MARY EILEEN KILBANE, J., and
ANITA LASTER MAYS, J., CONCUR WITH THE SEPARATE DISSENTING
OPINION
MARY J. BOYLE, J., DISSENTING:
{¶33} I respectfully dissent. Consistent with my dissenting opinion in the original
panel decision, and as this court and several other districts have long held, I would answer
the en banc question in the affirmative — that is, I would hold that a trial court has the
discretion and the authority to impose a prison term on one felony offense and community
control sanctions on a separate felony offense, and order the community control sanctions
commence upon the defendant’s release from prison.
{¶34} When choosing an appropriate sentence, trial courts must first consider R.C.
2929.11, which sets forth the overriding purposes and principles of felony sentencing.
R.C. 2929.11(A) states:
A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. To achieve
those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or both.
(Emphasis added.)
{¶35} Under R.C. 2929.12, a court retains discretion to determine the most
effective way to comply with the purposes and principles of sentencing. In exercising
this discretion, the court is required to consider a series of factors that pertain to the
seriousness of the offense and the recidivism of the offender. These factors include the
injuries suffered by the victim, the motivations of the offender, the offender’s prior
convictions, the offender’s remorse, and any mitigating factors. Id.{¶36} The defendant in this case, Anderson, was young — only 22 years old — at
the time of sentencing. At the sentencing hearing, the trial court heard from his
probation officer who informed the court that Anderson had failed several drug tests, did
not comply with his outpatient drug treatment program, or verify that he had attended
GED classes. Anderson’s father and mother also spoke to the court. Anderson’s father
told the court that he spent many years of his life having substance abuse issues, and
blamed himself for many of Anderson’s problems. Anderson’s mother informed the
court that Anderson had a learning disability and said that she attempted to help Anderson
attend his AA meetings. Anderson stated that being in jail for 197 days on this case was
“eye-opening,” and that he learned he wanted to get his life together and be a more
productive member of society.
{¶37} The following took place at Anderson’s sentencing hearing:
THE COURT: With regard to * * * the identity fraud offense,
Count 8, that is a felony of the fifth degree. I’m going to run that
consecutive to the robbery and abduction, and I’m going to order you to be
on probation for that charge.
I’m going to have you — when you’re released from prison, you’re
going to come back and be placed in the CBCF facility for a six-month
period. CBCF is a confinement facility next to the post office in
downtown Cleveland. It is not a jail. It is not a prison. It is a bunk bed
facility that has about 150 to 200 men where you will get drug treatment
training, you will get GED schooling, you will get training for Thinking For
a Change. In other words, making better decisions about yourself and you
will do that in a confinement setting, but very different than prison or jail.
You will be allowed to be released from that facility after you do
three months, if you have done everything properly. You will have to
return there in the evening to stay overnight, but you will be back out in the
community during the day to either take care of your business or take care
of working or start working, but you will come back during the evening and
stay there until you complete your stay. It is a maximum of six months.
For many people it is three months to six months.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You need to have some of these issues addressed,
and this is the proper way to do that. If you get that treatment in prison,
great, but you’re going to at least have a program where if it doesn’t happen
there, it will happen at the CBCF. You will be placed on probation for a
two-year time period.
You will also be on post-release control at the same time, so I’m not
adding anything more to that. It will be part of that same sentence. I’m
sentencing you to a total of three years, one with the gun specification and
two with the robbery, because your conduct that night is such that it is very
serious.
I know you’ve got issues, and I’m trying to address those issues, but
it’s important to address the conduct, and I’m trying to match the conduct
with what I think is the appropriate sentence and to make it as minimum a
sentence that I could impose that deals with the nature of your conduct.
You have a lot of family support. You’re going to need that family
support. I expect that they will continue to be with you during that time
period and help you through this process.
{¶38} After reviewing what occurred at the sentencing hearing, it is clear that the
trial court was attempting to appropriately punish Anderson for his conduct in committing
the offenses and protect the public, while at the same time attempting to rehabilitate a
22-year-old offender so that he could become a more productive and law-abiding citizen
after he served his sentence. Notably, the trial court imposed a sentence using the
minimum sanctions it deemed necessary — as it was required to do. The majority’s en
banc decision, however, essentially removes a trial court’s sentencing discretion, which is
counterintuitive and against the overriding purposes and principles of felony sentencing
under R.C. 2929.11.
{¶39} The en banc majority asserts that the trial court could accomplish its “noble
purpose of ensuring Anderson would stay on a path to rehabilitation” if the common pleas
court and the department of corrections entered into an agreement under the provisions
set forth in R.C. 2967.29. R.C. 2967.29(A) provides:
A court of common pleas may cooperate with the department of
rehabilitation and correction in the supervision of offenders who return to
the court’s territorial jurisdiction after serving a prison term. The court,
after consultation with the board of county commissioners, may enter into
an agreement with the department allowing the court and the parole board
to make joint decisions relating to parole and post-release control to the
extent permitted by section 2967.28 of the Revised Code.
{¶40} I disagree that the trial court could accomplish its “noble” goal if the court
and the department of corrections entered into an agreement pursuant to R.C. 2967.29.
This provision relates to “parole and postrelease control.” Neither the court nor the
parole board can impose a term in a CBCF as part of a defendant’s postprison monitoring.
But if a court sentences a defendant to community control sanctions that includes three
to six months in a CBCF, it is only common sense that the odds a defendant would break
his or her addiction would greatly increase. Thus, I disagree that a court could
accomplish the same “noble” goal through postrelease control.
{¶41} In State v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, the
certified intradistrict conflict case, this court was faced with nearly an identical set of
facts. The trial court sentenced Heidrick to five years in prison on one felony count and
one year of community control sanctions on another felony count, and ordered
“community control to commence upon release from prison.” Id. at ¶ 3. The trial court
further ordered, among other things, that as part of Heidrick’s community control
sanctions, he be screened for placement in the Northwest Community Based Correctional
Facility for up to six months.
{¶42} We explained in Heidrick that R.C. 2929.13(A), which states “a court that
imposes a sentence upon an offender for a felony may impose any sanction or
combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18
of the Revised Code,” provides a trial court with discretion to impose a prison term for
one offense and community control sanctions for a separate offense. Id. at ¶ 7-8, citing
State v. Randolph, 12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350, ¶ 6-7; State v.
Aitkens, 8th Dist. Cuyahoga Nos. 79851 and 79929, 2002-Ohio-1080; and State v.
Molina, 8th Dist. Cuyahoga No. 83166, 2004-Ohio-1110, ¶ 10. We went on to hold in
Heidrick that “[t]he trial court may also order that the sentence of community control * *
* begin upon the accused’s release from prison.” Id. at ¶ 8, citing State v. Ramsey, 6th
Dist. Wood No. WD-04-004, 2004-Ohio-5677, ¶ 4; State v. Kinder, 5th Dist. Delaware
No. 03CAA12075, 2004-Ohio-4340, ¶ 31.
{¶43} This court has recently reaffirmed the same holding — that a trial court has
the discretion under R.C. 2929.13(A) to impose a prison term on one felony offense and
community control sanctions on another felony offense, and order that the community
control sanctions commence upon completion of the prison term. See State v. Santiago,
8th Dist. Cuyahoga No. 102433, 2015-Ohio-4674 (upheld a sentence that included a
prison term for one offense and a “jail term, CBCF, and community control sanction” on
another offense, with community control sanctions beginning once the defendant was
released from prison). See also State v. Martin, 8th Dist. Cuyahoga No. 100723,
2014-Ohio-3913; State v. Carswell, 8th Dist. Cuyahoga Nos. 101313 and 101314,
2015-Ohio-764; State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766; and State
v. LaSalla, 8th Dist. Cuyahoga No. 99424, 2013-Ohio-4596. We noted in Martin and
Carswell that although a trial court cannot impose both a prison sentence and community
control sanctions for the same offense, it may do so for separate offenses, and it may
order the community control sanctions to commence upon the defendant’s release from
prison.5 Martin at ¶ 8-9; Carswell at ¶ 8.
{¶44} Other districts have also held that a trial court may impose a prison term on
one offense and community control sanctions on another offense and order the
community control sanctions to commence when the offender is released from prison.
See State v. Leedy, 4th Dist. Meigs No. 13CA7 and 13CA8, 2015-Ohio-1718; State v.
Meredith, 4th Dist. Athens No. 02CA5, 2002-Ohio-4508; State v. Kinder, 5th Dist.
Delaware No. 03CAA12075, 2004-Ohio-4340; State v. O’Connor, 5th Dist. Delaware
No. 04CAA04-028, 2004-Ohio-6752; State v. Boylen, 5th Dist. Tuscarawas No.
5The offenses in Martin and Carswell were felonies.
2012AP060039, 2012-Ohio-5503; State v. Ramsey, 6th Dist. Wood No. WD-04-004,
2004-Ohio-5677; and Randolph.
{¶45} It is my view that the holding in State v. Barnhouse, 102 Ohio St.3d 221,
2004-Ohio-2492, 800 N.E.2d 874, is limited to prohibiting trial courts from “impos[ing]
consecutive jail sentences.” Id. at the syllabus. Under Ohio’s sentencing statutes, trial
courts can only impose jail sentences for misdemeanor offenses or as part of a community
control sanction.
{¶46} It is also my view that State v. Anderson, 143 Ohio St.3d 173,
2015-Ohio-2089, 35 N.E.3d 512, is not applicable to the issues raised in this case. The
Ohio Supreme Court held in Anderson that “[a] trial court cannot impose a prison term
and a no-contact order [which is a community control sanction] for the same felony
offense.” (Emphasis added.) Id. at ¶ 1. Thus, it is my view that the en banc majority
applies the dicta in Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, too
broadly.
{¶47} I further believe that the holding in the majority en banc decision, vacating
Anderson’s sentence for the identity fraud count, essentially removes the trial court’s
sentencing discretion. When sentencing Anderson for identity fraud, the trial court had
the option of either sentencing him to prison or community control sanctions. If the en
banc majority’s interpretation is correct, then any community control sanctions that the
trial court imposed would have to be served concurrent to the prison term. But if
Anderson is in prison, he would not be able to serve his community control sanction —
rendering both the purposes and principles of sentencing under R.C. 2929.11(A) and the
trial court’s discretion under R.C. 2929.13(A) meaningless.
{¶48} Additionally, the majority en banc decision’s approach eliminates a trial
court’s discretion to impose community control sanctions on a separate felony count but
would leave intact the trial court’s authority to impose a prison term on that same count
and order the prison term consecutive to the other felony counts (provided the trial court
complies with the consecutive sentence findings under R.C. 2929.14(C)(4)). Such an
approach also directly contravenes R.C. 2929.11 and the General Assembly’s directive
that trial courts use “the minimum sanctions” necessary to accomplish the purposes and
principles of felony sentencing. I cannot agree that any decision from the Ohio Supreme
Court sought to eliminate a trial court’s discretion and authority to impose a less
restrictive sanction on a separate felony count.
{¶49} Moreover, it is axiomatic that an offender cannot serve a sentence of
community control sanctions while in prison. Thus, community control sanctions must
begin when an offender is released from prison. Because of this, it is my view that a
trial court need not even use the words “consecutive” or “concurrent” when sentencing an
offender to prison on one felony offense and community control sanctions on a separate
felony offense because community control sanctions cannot commence until the offender
is released from prison.
{¶50} I fear that the holding in the en banc majority decision will have far reaching
effects in removing a trial court’s discretion when sentencing a defendant. For example,
under the en banc majority’s decision, trial court judges will no longer be able to sentence
defendants to prison for an offense in one case and to community control sanctions for an
offense in a separate case, as the trial court judge in Molina did. See id., 8th Dist.
Cuyahoga No. 83166, 2004-Ohio-1110 (defendant was charged with drug trafficking in
January 2001; while that case was still pending, defendant was charged with drug
trafficking in another case; trial court sentenced defendant to six months in prison for the
first case and “consecutive four years” of community control sanctions for the second
case). Nor will a trial court judge be able to sentence a defendant to community control
sanctions for an offense and order that it commence after the defendant completes a
prison sentence for a separate case in another county, or state for that matter. There are
endless scenarios where trial court judges will now lose their ability to sentence
defendants within their sound discretion — because although the sentencing statutes
cannot address every possible situation (and thus, are silent on the matter), it simply
would not make sense to interpret the law any other way.
{¶51} Thus, based on well-established law in this district and others, I would
answer the en banc question (and the issue raised sua sponte by this court) in the
affirmative, and hold that a trial court has the authority to impose a prison term on one
felony offense and community control sanctions on a separate felony offense, and order
the community control sanctions commence upon the defendant’s release from prison.