Submitted February 20, 2019
Certified by the Court of Appeals for Fairfield County, No.
Kyle Witt, Fairfield County Prosecuting Attorney, and Mark A.
Balazik, Assistant Prosecuting Attorney, for appellee.
and Meade, L.L.C., and Darren L. Meade, for appellant.
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.
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
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
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
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
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.
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
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.
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
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),