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State v. Green

Court of Appeals of Ohio, Twelfth District, Warren

December 16, 2019

STATE OF OHIO, Appellee,
v.
RYAN GREEN, Appellant.

          CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case Nos. 18CR34859, 18CR34992, 18CR35203

          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, for appellee

          Anzelmo Law, James A. Anzelmo, for appellant

          OPINION

          RINGLAND, J.

         {¶ 1} Appellant, Ryan Green, appeals his sentence in the Warren County Court of Common Pleas. For the reasons detailed below, we reverse the decision of the trial court and remand for further proceedings.

         {¶ 2} Green pled guilty to felony counts in three cases. In Case No. 18CR34992, he pled guilty to possession of heroin, possession of a fentanyl-related compound, and aggravated possession of drugs. In Case No. 18CR34859, he pled guilty to three counts of aggravated possession of drugs and one count of possession of drugs. Additionally, in Case No. 19CR35203, Green pled guilty to illegal conveyance of drugs of abuse.

         {¶ 3} In Case No. 19CR35203, the trial court sentenced Green to a 24-month prison term. In Case Nos. 18CR34992 and 18CR34859, the trial court sentenced Green to three years of community control. As a condition of community control, the trial court ordered Green to complete a treatment program in a community-based correctional facility ("CBCF"). The trial court ordered Green's community control with CBCF to run consecutive to his prison sentence. Green now appeals, raising a single assignment of error for review:

         {¶ 4} THE TRIAL COURT ERRED BY ORDERING RYAN GREEN TO SERVE HIS PRISON SENTENCE CONSECUTIVE TO HIS COMMUNITY CONTROL SENTENCE, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

         {¶ 5} In his sole assignment of error, Green argues the trial court erred by ordering him to serve community control consecutive to his prison term. The state concedes the error.

         {¶ 6} We review the imposed sentence under the standard of review set forth in R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. An appellate court may modify or vacate a sentence only if the appellate court finds by clear and convincing evidence that "the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id. A sentence is not clearly and convincingly contrary to law where the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within the permissible statutory range." State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03- 026, 2019-Ohio-4209, ¶ 36. Thus, this court may "increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1.

         {¶ 7} In State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, the Supreme Court held that "'the only sentence which a trial judge may impose is that provided for by statute * * *.'" Id. at ¶ 12, quoting State v. Beasley, 14 Ohio St.3d 74, 75 (1984). Recently, the Court held that a trial court has no authority to impose community control sanctions on one felony count to be served consecutively to a prison term imposed on another felony count. State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, ¶ 1. This is because there is no provision in the Revised Code that authorizes a trial court to impose community control sanctions on one felony count to be served consecutively to a prison term imposed on another felony count. Id. at ¶ 24. In addition, "[b]ecause 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." Id. at ¶ 12.

         {¶ 8} In the present case, the trial court sentenced Green to a 24-month prison term in Case No. 19 CR 35203 and ordered him to serve a consecutive term of community control with placement in a CBCF in Case Nos. 18CR34859 and 18CR34992. The 24-month prison term in Case No. 19CR35203 was authorized by law; however pursuant to Hitchcock, the consecutive community control sanction with the CBCF condition was not. Accordingly, we reverse the trial court's sentencing decision in Case Nos. 18CR34859 and 18CR34992. Green's sole assignment of error is sustained.

         {¶ 9} Judgment ...


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