State v. Martin , 2014 Ohio 3913 ( 2014 )

[Cite as State v. Martin, 2014-Ohio-3913.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100723
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GINO MARTIN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-568316-B, CR-13-572752-A, CR-13-578497-B
BEFORE: Rocco, J., Jones, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: September 11, 2014
-i-
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Gino Martin appeals from his sentences for numerous
trafficking offenses and for having a weapon while under a disability. On appeal,
Martin asserts that the trial court erred in imposing a “split” sentence that imposed both a
prison term and community control sanctions for the same offense. Because there is no
split sentence in this case, we reject Martin’s argument and we affirm the trial court’s
final judgment.
{¶2} This case involves three different case numbers and three separate journal
entries. The trial court rendered sentences in all three cases on November 25, 2013.
Each case is discussed below.
Case Number CR-13-572752-A
{¶3} In CR-13-572752-A, Martin pleaded guilty to three counts of trafficking
under R.C. 2925.03(A)(2), all fifth-degree felonies (Counts 2, 6, 7); to one count of
trafficking under R.C. 2925.03(A)(1), a fifth-degree felony (Count 9); and to one count of
having a weapon while under a disability under R.C. 2923.13(A)(3), a third-degree felony
(Count 11). Two of the counts carried forfeiture specifications under R.C. 2941.1417.
{¶4} Martin was sentenced to 6 months imprisonment on count 2, to 12 months
imprisonment on count 9, and to 9 months imprisonment on count 11, all to run
concurrent with all other counts in the case. The trial court determined that counts 6 and
7 merged, and the trial court sentenced Martin on count 7 to a term of 6 months
imprisonment, to run concurrent with all other counts in the case.1 In total, Martin
1
The original journal entry contained a clerical error stating that counts 10 and 7 merge.
would serve 12 months in prison for the counts to which he pleaded guilty in
CR-13-572752-A. The journal entry further provided that, upon completion of his
prison sentences, Martin was to be delivered to the county jail so that he could start
serving his community-control sanctions in CR-13-578497-B and CR-13-568316-B (see
below). Martin was also ordered to forfeit a handgun, an automobile, and cash.
Case Number CR-13-578497-B
{¶5} In Case Number CR-13-578497-B, Martin pleaded guilty to a single
trafficking offense under R.C. 2925.03(A)(2), a fifth-degree felony. The trial court
sentenced Martin to one year of community control sanctions under the supervision of the
adult probation department. The trial court ordered that Martin be screened for
placement into the Community Based Correctional Facility (“CBCF”). If found to be
eligible, Martin was ordered to successfully complete the CBCF program. The sentence
further provided that if Martin violated the terms and conditions of the community control
sanctions, he could be sanctioned to up to 12 months in prison.
Case Number CR-12-568316-B
{¶6} In CR-12-568316-B, Martin pleaded guilty to a single trafficking offense
under R.C. 2925.03(A)(1), a fifth-degree felony. The trial court sentenced Martin to one
year of community control sanctions under the supervision of the adult probation
This error was corrected in a nunc pro tunc entry on May 19, 2014.
department. The community control sanctions would run concurrent with the
community control sanctions imposed in CR-13-578497-B. The trial court ordered that
Martin be screened for placement into the CBCF. If found to be eligible, Martin was
ordered to successfully complete the CBCF program. If Martin violated the terms and
conditions of the community control sanctions, he could be sanctioned to up to 12 months
in prison to be served concurrent with CR-13-578497-B.
{¶7} Martin filed notices of appeal in all three cases and sets forth a single
assignment of error for our review:
The trial court erred in imposing a split sentence, which included both a
prison term and community control sanctions, where the sanctions
automatically included additional incarceration.
We will not reverse the sentence imposed in this case unless we clearly and convincingly
find that it is contrary to law. See R.C. 2953.08(G)(2). Because the sentence is not
contrary to law, we find no merit to the assignment of error.
{¶8} “[T]he sentencing statute does not allow a trial court to impose both a prison
sentence and community control for the same offense.” (Emphasis added.) State v.
Jacobs, 189 Ohio App. 3d 283, 2010-Ohio-4010, 938 N.E.2d 29, ¶ 5 (8th Dist.). Such
split sentences are prohibited; instead, the trial court must “‘decide which sentence is
most appropriate — prison or community control sanctions — and impose whichever
option is deemed to be necessary.’” Id., quoting State v. Vlad, 153 Ohio App. 3d 74,
2003-Ohio-2930, 790 N.E.2d 1246, ¶ 16.
{¶9} But where a trial court sentences a defendant for separate offenses, the trial
court may impose a prison term for one offense and community control sanctions for
another offense, and it may order the sentences to be run consecutively. State v. May,
8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766, ¶ 29-31, citing R.C. 2929.13(A) and
State v. Connor, 5th Dist. Delaware No. 04CAA04-028, 2004-Ohio-6752, ¶ 28-29. See
also State v. LaSalla, 8th Dist. Cuyahoga No. 99424, 2013-Ohio-4596, ¶ 34.
{¶10} In the instant case, the trial court imposed concurrent prison sentences for
each of the separate counts in CR-13-572752-A. The trial court imposed a community
control sanction for the single count in CR-13-578497-B. And the trial court imposed a
separate community control sanction for the single count in CR-12-568316-B. The
community control sentences were to run concurrent with one another and consecutive to
the prison sentences. The trial court did not impose a split sentence on any one of the
counts. Martin’s argument, therefore, lacks merit. This case is governed by our
decision in May and we overrule the sole assignment of error.
{¶11} The trial court’s judgment is affirmed.
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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR