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State v. Hitchcock

Supreme Court of Ohio

August 15, 2019

The State of Ohio, Appellee,
v.
Hitchcock, Appellant.

          Submitted February 20, 2019

          Certified by the Court of Appeals for Fairfield County, No. 16-CA-41, 2017-Ohio-8255.

          R. Kyle Witt, Fairfield County Prosecuting Attorney, and Mark A. Balazik, Assistant Prosecuting Attorney, for appellee.

          Parks and Meade, L.L.C., and Darren L. Meade, for appellant.

          Fischer, J.

         {¶ 1} In this case, we are tasked with answering the certified-conflict question whether a trial court may impose community-control sanctions on one felony count to be served consecutively to a prison term imposed on a separate felony count. We answer that question in the negative and 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.

         I. Factual and Procedural Background

         {¶ 2} In 2016, appellant, Jeffery A. Hitchcock, was charged with four third-degree felony counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A) and (B)(3) and one first-degree misdemeanor count of endangering children in violation of R.C. 2919.22(A) and (E)(2)(a). Each of the felony counts alleged identical conduct: that Hitchcock engaged in sexual conduct with a particular minor.

         {¶ 3} Appellee, the state of Ohio, and Hitchcock reached a plea agreement in which Hitchcock agreed to plead guilty to three of the counts of unlawful sexual conduct with a minor (Counts One, Two, and Three) and the state agreed to move to dismiss the remaining count of unlawful sexual conduct with a minor (Count Four) and the count of endangering children (Count Five). The trial court accepted Hitchcock's pleas, found him guilty of Counts One, Two, and Three, and dismissed the remaining counts.

         {¶ 4} The trial court found that the offenses occurred on different dates and that the offenses were not allied offenses of similar import and did not merge for purposes of sentencing. The court found it necessary that Hitchcock serve a significant amount of time in prison to impress upon him the severity of his actions and to deter him and others from engaging in similar conduct in the future. The court also found it important that Hitchcock be in a position to work toward rehabilitation.

         {¶ 5} On both Count One and Count Two, the court ordered Hitchcock to serve a five-year prison term, with each term to run consecutively to the other. On Count Three, the court ordered Hitchcock to serve a five-year term of community control. The court ordered this community-control term to be served consecutively to the prison terms imposed on Counts One and Two. It reserved the authority to order Hitchcock to serve an additional, consecutive five-year prison term should he violate any of the terms or conditions of his community control. Pursuant to the community-control terms imposed by the court, Hitchcock was to be assessed for potential placement in a community-based correctional facility ("CBCF") for purposes of sex-offender treatment, and the court also ordered him to pay restitution. The community-control terms also included a number of nonresidential sanctions, including outpatient mental-health and substance-abuse counseling, intensive supervised probation, GPS monitoring, a no-contact order, and random house checks.

         {¶ 6} Hitchcock appealed his sentence, arguing in part that the trial court erred in requiring him to serve a term of community control consecutively to the prison terms that it imposed. The Fifth District Court of Appeals affirmed. The court first noted that Ohio's courts of appeals are split on the issue whether a trial court may require that a term of community-control sanctions imposed on one felony count be served consecutively to a prison term imposed on another felony count. The Fifth District concluded that a trial court may do so, reasoning that R.C. 2929.13(A) provides trial courts broad authority to impose" 'any sanction or combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18 of the Revised Code, '" 2017-Ohio-8255, ¶ 19. The court also emphasized R.C. 2929.11(A)'s directive that trial courts use the minimum sanctions that they determine are necessary to accomplish the purposes of felony sentencing without imposing an unnecessary burden on state- or local-government resources. Id. at ¶ 20-21.

         {¶ 7} The Fifth District certified that its judgment was in conflict with both the judgment of the Eighth District Court of Appeals in State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229 (8th Dist), and the judgment of the Twelfth District Court of Appeals in State v. Ervin, 2017-Ohio-1491, 89 N.E.3d 1 (12th Dist.). The court certified the conflict issue as "[w]hether 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 count."

         {¶ 8} We determined that a conflict exists, accepted the appeal, and held the case for our decision in State v. Paige, 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, in which we held that the trial court lacked statutory authority to impose a CBCF term as a community-control sanction to be served consecutively to a prison term imposed on a separate offense, id. at ¶ 13. 152 Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 877. After we announced our decision in Paige, we lifted the stay on this case and ordered briefing. 152 Ohio St.3d 1439, 2018-Ohio-1600, 96 N.E.3d 296.

         II. Analysis

         {¶ 9} Hitchcock argues that trial courts may impose only sentences authorized by statute and that they may not impose a particular sentence without express authority to do so. Because the Revised Code does not contain an express grant of authority to order the imposition of nonresidential community-control sanctions to be served consecutively to a prison term, Hitchcock contends, a trial court may not impose such a sentence. Hitchcock further argues that pursuant to this court's decision in Paige, the trial court lacked the authority to order that he be assessed for possible placement in a CBCF following his completion of his prison terms.

         {¶ 10} The state responds that Hitchcock's sentence is entirely proper and lawful. It notes the broad sentencing discretion granted trial courts under R.C. 2929.13(A) and the lack of statutory authority prohibiting trial courts from imposing a community-control sanction for one felony to be served consecutively to a prison term for another felony. In addition, the state argues that the trial court properly ordered Hitchcock to be assessed for possible placement in a CBCF following completion of his prison terms. In making this argument, the state asserts that this case is distinguishable from Paige because here, the trial court made the findings that R.C. 2929.14(C)(4)(b) and (c) require a trial court to make before imposing consecutive prison terms.

         A. Pursuant to Paige, a trial court lacks authority to order that a defendant be assessed for potential placement in a CBCF following completion of a prison term

         {¶ 11} Before considering the certified-conflict question, we first address the effect of Paige on this case. In Paige, we held that unless a statutory exception listed in R.C. 2929.41(A) applies to permit a CBCF term to run consecutively to a prison term, a trial court has no authority to order, as part of a community-control sentence, that a defendant be placed in a CBCF after completing a prison term imposed for another offense in that case. 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, at ¶ 13. Because vacating the improperly imposed CBCF term in Paige would not disturb the remainder of the validly imposed community-control sentence, we determined that the proper remedy in that case was to vacate only the improperly imposed residential sanction. Id. at ¶ 14.

         {¶ 12} As in Paige, none of the statutory exceptions listed in R.C. 2929.41(A) apply in this case. The state argues that because the trial court in this case made the findings required by R.C. 2929.14(C)(4)(b) and (c) before imposing consecutive prison terms, this case is distinguishable from Paige. However, R.C. 2929.14(C)(4) does not permit the consecutive terms imposed in this case. That statute permits a trial court to require an offender to serve multiple "prison terms" consecutively if the court makes certain findings. Id. R.C. 2929.41(A) delineates three different types of incarceration: (1) a "prison term"; (2) a "jail term"; and (3) a "sentence of imprisonment" Placement in a CBCF is not a prison term but, rather, a "sentence of imprisonment," as this court explained in Paige: "Pursuant to R.C. 1.05(A), 'imprisonment' includes a term in a CBCF. Thus, a term of confinement in a CBCF is a 'sentence of imprisonment' under R.C. 2929.41(A)." Id. at ¶ 12. This statement from Paige is confirmed by R.C. 2929.01(E), which specifies that a community-control sanction, such as a CBCF term, imposed pursuant to R.C. 2929.16 is a "sanction that is not a prison term." (Emphasis added.) Because a term of confinement in a CBCF is not a prison term, R.C. 2929.14(C)(4) does not permit a court to impose a CBCF term consecutively to a prison term.

         {¶ 13} Pursuant to Paige, the trial court in this case had no authority to order, as part of a community-control sentence, that Hitchcock be placed in a CBCF after completing a separate prison term. Although the court in this case ordered that Hitchcock be assessed for potential placement in a CBCF (rather than order him to be placed in a CBCF, as the trial court did in Paige), ...


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