Court of Appeals of Ohio, Twelfth District, Warren
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case
Nos. 18CR34859, 18CR34992, 18CR35203
P. Fornshell, Warren County Prosecuting Attorney, Kirsten A.
Brandt, for appellee
Anzelmo Law, James A. Anzelmo, for appellant
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
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 ...