State v. Alexander , 2016 Ohio 204 ( 2016 )


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  • [Cite as State v. Alexander, 
    2016-Ohio-204
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 102708
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    ANTONIO ALEXANDER
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-12-559220-B
    BEFORE: S. Gallagher, J., Stewart, P.J., and Boyle, J.
    RELEASED AND JOURNALIZED: January 21, 2016
    ATTORNEY FOR APPELLANT
    Ruth R. Fischbein-Cohen
    3552 Severn Road #613
    Cleveland, Ohio 44118
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    By: Andrew J. Santoli
    Assistant Prosecuting Attorney
    Justice Center - 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    SEAN C. GALLAGHER, J.:
    {¶1} In 2013, Antonio Alexander pleaded guilty to, among other counts irrelevant to the
    current appeal, a misdemeanor child endangerment offense and a misdemeanor offense of
    disseminating matter harmful to a juvenile. The court placed him on community control, with
    the advisement that any violation could lead to a sentence to be served consecutive to the other.
    After finding Alexander in violation of the terms of his community control sanctions, the trial
    court sentenced him to six months on each misdemeanor count, to be served consecutive to the
    other but credited him with 34 days of time served. Alexander’s sentences on the remaining
    counts are to be served concurrently. His aggregate jail sentence is one year. In a single
    assignment of error, Alexander complains that the trial court failed to make the
    R.C. 2929.14(C)(4) findings required before the imposition of consecutive sentences.
    {¶2} We find no merit to the assigned error. R.C. 2929.14(C)(4) does not apply to a
    conviction that includes consecutive service of misdemeanor jail terms.          R.C. 2929.41(B)
    authorizes consecutive service of jail terms up to 18 months without findings.
    {¶3} R.C. 2929.41(A) provides as follows:
    Except as provided in division (B) of this section, division (C) of section 2929.14,
    or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail
    term, or sentence of imprisonment shall be served concurrently with any other
    prison term, jail term, or sentence of imprisonment imposed by a court of this
    state, another state, or the United States. Except as provided in division (B)(3) of
    this section, a jail term or sentence of imprisonment for misdemeanor shall be
    served concurrently with a prison term or sentence of imprisonment for felony
    served in a state or federal correctional institution.
    (Emphasis added.) There are only three exceptions to the concurrent service of jail or prison
    terms, or a sentence of imprisonment: (1) for misdemeanor sentences pursuant to R.C.
    2929.41(B); (2) for felony prison terms pursuant to R.C. 2929.14(C)(4); or (3) for sentences for
    certain violent sex offenses pursuant to R.C. 2971.03. In consideration of the fact that the
    second and third exceptions are inapplicable to the current case, our review is necessarily limited
    to R.C. 2929.41(B) and whether the imposition of consecutive jail terms for misdemeanors was
    an exception to the general rule of concurrent sentences.
    {¶4} A trial court is authorized to impose misdemeanor jail sentences to be served
    consecutively pursuant to R.C. 2929.41(B). State v. Mitchell, 8th Dist. Cuyahoga
    No. 101542, 
    2015-Ohio-1146
    , ¶ 14, citing State v. Barker, 8th Dist. Cuyahoga No.
    99320, 
    2013-Ohio-4038
    , ¶ 22. R.C. 2929.41(B) provides as follows:          A jail
    term or sentence of imprisonment for a misdemeanor shall be served
    consecutively to any other prison term, jail term, or sentence of imprisonment
    when the trial court specifies that it is to be served consecutively or when it is
    imposed for a misdemeanor violation of section 2907.322, 2921.34, or 2923.131
    of the Revised Code.
    When consecutive sentences are imposed for misdemeanor under this division, the
    term to be served is the aggregate of the consecutive terms imposed, except that
    the aggregate term to be served shall not exceed eighteen months.
    (Emphasis added.) Upon a plain reading, and in contrast to consecutive prison terms pursuant to
    R.C. 2929.14(C)(4), the statute authorizes trial courts to order consecutive service of jail terms
    for misdemeanor offenses up to 18 months without making findings.
    {¶5} In support of his argument that the R.C. 2929.14(C)(4) findings are required before
    imposing misdemeanor jail terms to be served consecutively, Alexander relies on Beachwood v.
    Chatmon, 8th Dist. Cuyahoga Nos. 101767 and 101768, 
    2015-Ohio-425
    , in which a panel from
    this court reversed a conviction because the findings pursuant to R.C. 2929.14(C)(4) were not
    included. In Chatmon, however, the state conceded that the findings were required and lacking.
    Id. at ¶ 1. Although this concession was improvidently accepted, the concession nonetheless
    limits any authoritative value of that panel’s decision. The majority opinion was devoid of any
    discussion involving the applicability of R.C. 2929.41(B) and the inapplicability of R.C.
    2929.14(C)(4) in reviewing the imposition of consecutive service of misdemeanor jail terms. As
    such, Chatmon does not stand for the proposition that courts apply R.C. 2929.14(C)(4)
    notwithstanding R.C. 2929.41(B), as Alexander argues.         Chatmon is distinguishable and
    accordingly must be limited in application.
    {¶6} Contrary to the Alexander’s position, R.C. 2929.14(C)(4) is limited to the
    imposition of consecutive “prison terms” and is not applicable to the current case. State v.
    Peterson, 8th Dist. Cuyahoga No. 102428, 
    2015-Ohio-4581
    , ¶ 7; State v. Maloney, 12th Dist.
    Clermont No. CA99-01-006, 
    1999 Ohio App. LEXIS 4600
    , *7 (Sept. 27, 1999); State v. Kroger,
    12th Dist. Clermont No. CA99-05-050, 
    2000 Ohio App. LEXIS 1393
     (Apr. 3, 2000). “Prison”
    is defined as a residential facility used for the confinement of convicted felony offenders under
    the control of the Department of Rehabilitation and Correction. R.C. 2929.01 (AA). On the
    other hand, “jail term” is defined as a jail sentence imposed pursuant to the misdemeanor
    sentencing statute, R.C. 2929.24. Prison and jail are two separate types of imprisonment.
    {¶7} In this case, Alexander’s sentence included consecutive service of two six-month jail
    terms pursuant to R.C. 2929.41(B)(1). R.C. 2929.14(C)(4), the statutory section authorizing the
    imposition of consecutive service of prison terms, is not applicable. The trial court was not
    required to make the R.C. 2929.14(C)(4) findings prior to ordering consecutive service of the
    misdemeanor jail terms. We overrule the sole assigned error and affirm Alexander’s conviction.
    It is ordered that appellee recover from appellant costs herein taxed. The court finds
    there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common pleas
    court to carry this judgment into execution. The defendant’s conviction having been affirmed,
    any bail pending appeal is terminated.   Case remanded to the trial court for execution of
    sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    SEAN C. GALLAGHER, JUDGE
    MELODY J. STEWART, P.J., and
    MARY J. BOYLE, J., CONCUR