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State v. Fullmer

Court of Appeals of Ohio, Tenth District

September 3, 2019

State of Ohio, Plaintiff-Appellee,
Brent T. Fullmer, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas No. 08CR-3997

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Valerie B. Swanson, for appellee.

          Yeura Venters, Public Defender, and George M. Schumann, for appellant.


          Valerie B. Swanson.

          George M. Schumann.


          NELSON, J.

         {¶ 1} Many convicted felons argue that for any particular count, they should receive a sentence of community control rather than prison. This is not such a case.

         {¶ 2} Rather, this case poses a question very recently addressed by the Supreme Court of Ohio in State v. Hitchcock, Ohio St.3d, 2019-Ohio-3246. Although the lead opinion there expressed in full the views of a single Justice, we understand that case to direct that absent specific statutory authority, "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." Id. at ¶ 24. Believing ourselves bound by that rule even with regard to a sentence imposed during the timeframe and under the circumstances described below, we will reverse the community control sentences challenged here and remand to the common pleas court for resentencing in accordance with law.

         {¶ 3} This matter relates back to sentencing decisions initially made in 2010, notably (perhaps) during the post-Foster period during which statutes governing consecutive sentences had been excised from the Code. In July of that year, the trial court took up the sentencing of defendant Brent T. Fullmer, whose peripatetic record of dishonesty over the previous decade and a half caused the judge to remark that "[i]t almost looks like you're trying to go to prison in every state in the union." July 23, 2010 Sentencing Proceedings at 16. Given the circumstances of the cases, the judge appears to have been sorely tempted to send the defendant away to prison for many of the 26-plus years that the various felony convictions in the three cases before him might have permitted. "It would be real simple to add up the maximum sentences and send you away," the judge told Mr. Fullmer. Id. at 21.

         {¶ 4} Instead, the judge sentenced Mr. Fullmer to a total of two years in prison covering four felonies in two cases not at issue here, consecutive to concurrent sentences of five years incarceration on each of two third-degree felony identity fraud counts under Franklin C.P. No. 08CR-3997, to be followed by five years of community control for ten additional counts in that case of identity fraud, forgery, and theft as fourth and fifth-degree felonies. Id. at 16-19; July 30, 2010 Judgment Entry. Defense counsel had argued that Mr. Fullmer's previous incarcerations had not given him "help that he has been so desperately requesting," and the sentencing court was of the view that even though "the State and the victim[s might] think I need my head examined for not just locking you up and throwing away the key," such a decades'-long sentence would deprive victims of any chance at restitution (as then ordered in the amount 0f $10, 292). July 23, 2010 Sentencing Proceedings at 7-8, 21; July 30, 2010 Judgment Entry.

         {¶ 5} Mr. Fullmer did not appeal from that sentence. He was granted judicial release from prison on July 26, 2016, with case terminations for time served on the two one-year sentences and with 137 days left on his five-year term in Franklin C.P. No. 08CR-3997. He also did not appeal from the five years of community control reasserted by the trial court in conjunction with the judicial release. See July 25, 2016 Entry Granting Judicial Release (with incorrect Franklin C.P. No. 08CR-4000); September 12, 2018 Nunc Pro Tunc Entry Granting Judicial Release (correcting case number to 08CR-3997). In the words of his counsel, he "subsequently absconded" (with conditions of his community control unfulfilled). August 14, 2018 Motion to Terminate Probation at 1. When eventually brought back before the trial court, he was found to have violated the terms of his community control, but the judge restored him to active community control under intensive supervision with drug screening and employment requirements. The judge denied his motion to terminate community control. October 23, 2018 Amended Entry.

         {¶ 6} Appealing from that denial, Mr. Fullmer's unflinching position is that the community control sentences "on counts 3 through 12 must be vacated and the matter remanded for resentencing on counts 3 through 12"-with no option of community control on the table for those ten felonies. Appellant's Brief at 20. His current position is informed by his view that he may "collaterally attack his community control sanction as contrary to law" and therefore void. Id. at 6. Echoing an argument that now appears to have been adopted by the Supreme Court in Hitchcock, he posits a single assignment of error: "The trial court erred in denying the defendant-appellant's motion to vacate his community control sanction that was ordered consecutive to his prison ...

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