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State v. Rutschilling

Court of Appeals of Ohio, Third District, Mercer

December 26, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
AARON N. RUTSCHILLING, DEFENDANT-APPELLANT. STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
AARON N. RUTSCHILLING, DEFENDANT-APPELLANT.

         Appeal from Mercer County Common Pleas Court Trial Court Nos. 15-CRM-061, 14-CRM-060

          Bryan Scott Hicks for Appellant

          Matthew J. Fox and Joshua A. Muhlenkamp for Appellee

          OPINION

          WILLAMOWSKI, J.

         {¶1} Defendant-appellant Aaron N. Rutschilling ("Rutschilling") brings this appeal from the judgments of the Court of Common Pleas of Mercer County revoking his community control and judicial release and sentencing him to prison. Rutschilling challenges the consecutive nature of the sentences and the effectiveness of his trial counsel. For the reasons set forth below, the judgments are reversed.

         {¶2} On May 15, 2014, the Mercer County Grand Jury indicted Rutschilling on one count of trafficking in marijuana in violation of R.C. 2925.03(A)(1), (C)(3)(a), (C)(3)(b), a felony of the fourth degree. ADoc. 6[1]. The case was assigned the number 14-CRM-060. Id. Rutschilling entered a plea of not guilty. Doc. 21. On December 11, 2014, Rutschilling filed a motion for intervention in lieu of conviction for the indicted charge as well as an expected charge for possession of heroin. ADoc. 39. On January 7, 2015, the State filed a bill of information in case number 14-CRM-060 alleging an additional charge that Rutschilling had possessed heroin on or about April 19, 2014, in violation of R.C. 2925.11(A), (C)(6)(a), a felony of the fifth degree. ADoc. 40. On March 25, 2015, Rutschilling and the State entered into a negotiated plea agreement. ADoc. 78. Rutschilling agreed to enter pleas of guilty to an amended indictment count of trafficking in marijuana in violation of R.C. 2925.03(A)(1); (C)(3)(a), a felony of the fifth degree, and one count of possession of heroin in violation of R.C. 2925.11(A); (C)(6)(a), a felony of the fifth degree, as charged in the bill of information. Id. Rutschilling also agreed to waive prosecution by indictment and consented to be prosecuted by the bill of information. Id. In exchange, the State agreed to amend the trafficking in marijuana charge from a fourth degree felony to a fifth degree felony. Id. The State also agreed not to oppose intervention in lieu of conviction. Id. No sentencing agreement was reached. Id. On March 20, 2015, an arraignment on the possession of heroin charge and a change of plea hearing on the amended trafficking in marijuana charge was held. ADoc. 83. At that time, Rutschilling entered pleas of guilty pursuant to the negotiated plea agreement. Id. The trial court accepted the pleas of guilty and scheduled sentencing for a later date. Id.

         {¶3} While Rutschilling was awaiting sentencing, the State filed a bill of information in case no. 15-CRM-061 alleging that Rutschilling had illegally conveyed a drug of abuse onto the grounds of a governmental facility in violation of R.C. 2921.36(A)(2); (G)(2), a felony of the third degree. BDoc. 5. Rutschilling consented to being charged by the bill of information and entered a plea of guilty. BDoc. 14. This plea was made pursuant to a negotiated plea agreement in which Rutschilling agreed to enter a plea of guilty and the State agreed not to oppose Community Control Sanctions including a residential sanction at the W.O.R.T.H. Center. BDoc. 15. On May 6, 2015, the trial court held a hearing on the charge. BDoc. 18. Rutschilling entered a plea of guilty in accord with the agreement and the trial court accepted the plea. Id. The matter was continued for sentencing. Id.

         {¶4} On May 27, 2015, a sentencing hearing was held on both cases. ADoc. 101 and BDoc. 24. In case number 14-CRM-060, the trial court sentenced Rutschilling to a term of community control for up to three years. ADoc. 101. The trial court informed Rutschilling that if he violated the sanctions, he could receive "a prison term of Eleven (11) months on each count." Id. . at 7. The judgment entry was silent as to whether the terms would be served concurrently or consecutively. Id. In case number 15-CRM-061, the trial court sentenced Rutschilling to a term of community control of up to three years. BDoc. 24. Rutschilling was informed that a violation of the sanctions could result in a prison term of 30 months. Id. at 6. No discussion was held as to whether this sentence would be concurrent or consecutive to the others.

         {¶5} On November 3, 2015, the State filed a notice of failure to comply with community control sanctions in case number 15-CRM-061. BDoc. 37. The notice alleged that Rutschilling had been unsuccessfully terminated from the W.O.R.T.H. Center. Id. A hearing was held on November 18, 2015, at which Rutschilling admitted to the violation. BDoc. 55. As a result of the violation, the trial court sentenced him to 30 months in prison. BDoc. 60. The trial court also tolled the community control sanctions imposed in 14-CRM-60 due to the prison term being imposed. ADoc. 108.

         {¶6} On June 14, 2016, Rutschilling filed a motion for judicial release in case number 15-CRM-061. BDoc. 72. A hearing was held on the motion on July 20, 2016. BDoc. 85. The trial court then granted the motion for judicial release and imposed community control sanctions for up to three years. Id. The trial court informed Rutschilling that a violation of the sanctions could result in imposition of the balance of his prison term. Id. No discussion about the sentences in case number 14-CRM-060 occurred at this hearing.

         {¶7} On February 8, 2017, the State filed a notice of failure to comply with community control sanctions in both case number 14-CRM-060 and 15-CRM-061.[2]ADoc. 119 and BDoc. 92. The notice alleged that Rutschilling had been arrested for OVI, had tested positive for fentanyl and marijuana, and had failed to take drug tests when requested. Id. A hearing was held on the violations on March 22, 2017. ADoc. 134 and BDoc. 105. Rutschilling admitted the violations and the matter was set for disposition. Id. The disposition hearing was held on April 12, 2017. At the hearing the trial court sentenced Rutschilling as follows.

In this case, [the decision whether to order the sentence in 15-CRM-191 to be served consecutive or concurrent to the others is] an academic decision, because I'm willing to at least follow the recommendation from the defense, that's not opposed by the State, and impose a concurrent sentence, so the consequence, what I consider the principles and purposes of sentencing, the prior criminal history, the attempts at rehabilitation, the prior prison sentence, and the judicial release, is [sic] order that 22 months in 14-CR-60, order the 30 months in 15-CR-61, those to be served consecutive to each other. And then 11 months in 15-CRM-191 to be served concurrent with the two consecutive sentences, so that takes it then to 52-month total sentence, with credit for what we think today is 506 days jail time previously served.

Apr. 12, 2017, Tr. 5-6. After a discussion with the State, the time served was adjusted to be 529 days. Id. at 7. No other discussion regarding the sentence imposed was held on the record.[3] On May 24, 2017, Rutschilling filed notices of appeal in 14-CRM-060 and 15-CRM-061. ADoc. 147 and BDoc. 118. The appeals were consolidated. On appeal, Rutschilling raises the following assignments of error.

         First ...


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