State v. Paige (Slip Opinion) , 153 Ohio St. 3d 214 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Paige, Slip Opinion No. 2018-Ohio-813.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2018-OHIO-813THE STATE OF OHIO, APPELLANT, v. PAIGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Paige, Slip Opinion No. 2018-Ohio-813.]
Criminal law—Sentencing—Trial court did not impose improper split sentence by
sentencing defendant to prison term on one count and concurrent
community-control sanction on separate count—Trial court lacked
authority under R.C. 2929.41(A) to order, as part of defendant’s
community-control sanction, that he be placed in a community-based-
correctional facility (“CBCF”) after his completion of separate prison
term—Court of appeals’ judgment reversed and sentence reinstated except
for condition requiring placement in CBCF.
(No. 2016-1848—Submitted December 5, 2017—Decided March 7, 2018.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 104109, 2016-Ohio-7615.
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SUPREME COURT OF OHIO
O’CONNOR, C.J.
{¶ 1} In this appeal, we review a sentence consisting of community-control
sanctions, including a community-residential sanction, imposed on one offense, to
run concurrently with a prison term imposed on a separate offense. We conclude
that the concurrent term of community control was proper but that the residential-
sanction portion of the sentence was not authorized by statute. Accordingly, we
reverse the judgment of the Eighth District Court of Appeals.
RELEVANT BACKGROUND
{¶ 2} Appellee, Michael T. Paige, pleaded guilty to one count each of sexual
battery, abduction, and domestic violence. For sentencing purposes, the trial court
merged the sexual-battery and abduction counts, and the state elected to proceed
with sentencing on the sexual-battery count.
{¶ 3} On the sexual-battery count, the trial court sentenced Paige to serve a
42-month prison term, minus jail-time credit, followed by five years of mandatory
postrelease control. On the domestic-violence count, the court sentenced Paige to
five years of community-control supervision. The community-control sentence
included several conditions, including that upon his release from prison for the
sexual-battery count, Paige must return to the county jail for assessment and
transfer to a community-based-correctional-facility (“CBCF”). As additional
conditions of the community-control sentence, the trial court ordered Paige to
successfully complete an anger-management program and prohibited him from
having contact with the victim while on community control. The trial court also
imposed three years of mandatory postrelease control and classified Paige as a Tier
III sex offender.
{¶ 4} On appeal to the Eighth District Court of Appeals, Paige asserted the
following assignment of error:
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January Term, 2018
The trial court erred in [imposing] a sentence, which
included both a prison term and community control sanctions at the
same time, and where the community control sanctions continued
after the completion of the prison sentence, which also included
additional confinement in CBCF.
(Brackets sic.) 2016-Ohio-7615, ¶ 1. The appellate court agreed and vacated the
sentence on the domestic-violence count. It concluded that because Paige was
ordered to serve a portion of the community-control sentence in prison and a portion
upon release in a CBCF, the sentence on the domestic-violence count was a “split
sentence” not permitted by statute. Id. at ¶ 8.
{¶ 5} We accepted jurisdiction over the state’s discretionary appeal. 150
Ohio St.3d 1407, 2017-Ohio-6964, 78 N.E.3d 908.
ANALYSIS
{¶ 6} Split sentences are prohibited in Ohio. Generally, pursuant to the
felony-sentencing statutes, a court must impose either a prison term or a
community-control sanction as a sentence for a particular felony offense—a court
cannot impose both for a single offense. State v. Anderson, 143 Ohio St.3d 173,
2015-Ohio-2089, 35 N.E.3d 512, ¶ 31. The trial court complied with that rule here
by imposing a prison sentence on the sexual-battery count and, separately, a five-
year period of community control on the domestic-violence count. Thus, the trial
court did not impose a split sentence.
{¶ 7} Paige argues, however, that the “effective sentence” on the domestic-
violence count is both a prison term and community-control supervision because
the prison term is “incorporated” into the term of community control as a result of
the concurrently running sentences on each offense. The court of appeals also
seemed to view the sentences on each offense together when it concluded that “by
making the community control sentence longer than that imposed for the sexual
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SUPREME COURT OF OHIO
battery count, the trial court imposed a split sentence for the domestic violence
count, which is prohibited.” 2016-Ohio-7615, at ¶ 10.
{¶ 8} We have been clear that the “sentencing package” doctrine, by which
federal courts may consider multiple offenses as a whole and impose an
overarching sentence, is not applicable in Ohio’s state courts, and “appellate courts
may not utilize the doctrine when reviewing a sentence or sentences.” State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 10. Thus, the court
of appeals erred to the extent that it considered the sentences for each offense
together as a whole. The only task before us is to determine whether the
community-control sentence imposed on the domestic-violence count was proper.
{¶ 9} We agree with the state that the mere fact that the sentences on each
offense were to run concurrently does not mean that the community-control
sentence imposed on the domestic-violence count included a prison term. The
prison term was imposed on the sexual-battery count, and a period of community-
control supervision was imposed separately on the domestic-violence count. This
complies with our recent decision in Anderson.
{¶ 10} Additionally, nothing in the sentencing statutes requires the duration
of a community-control sanction to match that of a concurrent prison term. The
only applicable requirement is that “[t]he duration of all community control
sanctions imposed upon an offender under this division shall not exceed five years.”
R.C. 2929.15(A)(1). Thus, we do not accept the appellate court’s conclusion that
the length of the community-control sentence resulted in an improper split sentence
here.
{¶ 11} However, the trial judge specifically ordered, as part of the
community-control sentence imposed on the domestic-violence count, that Paige
be placed in a CBCF upon completion of the prison term imposed on the sexual-
battery count. Paige argues that this constitutes an improper consecutive term of
imprisonment.
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January Term, 2018
{¶ 12} Notably, the state concedes that the trial court erred when it ordered
Paige’s placement in a CBCF upon his release from prison. R.C. 2929.41(A)
provides that 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” unless a statutory exception applies. (Emphasis added.) Pursuant to R.C.
1.05(A), “imprisonment” includes a term in a CBCF. Thus, a term of confinement
in a CBCF is a “sentence of imprisonment” under R.C. 2929.41(A).
{¶ 13} A confinement term in a CBCF is a permissible community-
residential sanction for certain felony offenders pursuant to R.C. 2929.16(A)(1).
But here, none of the statutory exceptions in R.C. 2929.41(A) apply to permit the
CBCF term to run consecutively to the prison term imposed on the sexual-battery
count. State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229, ¶ 16 (8th Dist.); see
also State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874(concluding that because the General Assembly expressly provided statutory
exceptions to the general rule that sentences of imprisonment must be run
concurrently and because jail sentences did not qualify as an exception under R.C.
2929.41(A), jail sentences may not be imposed consecutively). Accordingly, the
trial court had no statutory authority to order, as part of the community-control
sanction, that Paige be placed in a CBCF after his completion of the separate prison
term. Judges must impose only those sentences provided for by statute. Anderson,
143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, at ¶ 12. Thus, the trial court’s
imposition of a CBCF term as a community-control sanction, to be served
consecutively to a prison term imposed on a separate offense, was improper.
{¶ 14} We turn, then, to the remedy. The state asserts that the proper
remedy is to vacate only the improperly imposed residential sanction and leave the
remaining conditions of the community-control sentence intact. We agree with this
approach here. Under R.C. 2929.15(A)(1), a court may impose on a felony offender
who is not required to serve a mandatory prison term one or more community-
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SUPREME COURT OF OHIO
control sanctions authorized by statute. Here, the trial court imposed a five-year
period of community-control supervision with a number of conditions, including
completion of anger-management training, a no-contact order, and placement in a
CBCF (as discussed above). Because vacating the improperly imposed CBCF term
does not disturb the remainder of the community-control sentence, we conclude
that the proper remedy is to vacate only that portion of the community-control
sentence.
CONCLUSION
{¶ 15} Accordingly, we reverse the judgment of the Eighth District Court
of Appeals and reinstate the sentence imposed on the domestic-violence count
except for the condition requiring Paige’s placement in a CBCF upon his release
from prison, which we vacate.
Judgment reversed,
and sentence vacated in part
and reinstated in part.
O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE, and RICE, JJ., concur.
CYNTHIA W. RICE, J., of the Eleventh District Court of Appeals, sitting for
O’NEILL, J.
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Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank
Romeo Zeleznikar and Kerry Sowul, Assistant Prosecuting Attorneys, for
appellant.
Mark A. Stanton, Cuyahoga County Public Defender, and Paul A. Kuzmins,
Assistant Public Defender, for appellee.
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