from Mercer County Common Pleas Court Trial Court Nos.
Scott Hicks for Appellant
Matthew J. Fox and Joshua A. Muhlenkamp for Appellee
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.
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. 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.
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.
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.
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.
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
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.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. 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.