State v. Richards , 2020 Ohio 5159 ( 2020 )

[Cite as State v. Richards, 2020-Ohio-5159.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-200094
TRIAL NO. B-1905865
Plaintiff-Appellee, :
vs. :
O P I N I O N.
DENNIS RICHARDS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: November 4, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael Trapp, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} After entering a guilty plea, defendant-appellant Dennis Richards was
convicted of trespass in a habitation, a fourth-degree felony. The trial court
sentenced him to a prison term of 12 months to be followed by a one-year term of
community control. Richards now appeals.
{¶2} In his sole assignment of error, Richards argues the trial court erred as
a matter of law by requiring him to serve a term of community control after imposing
a prison term for the same offense. He requests that this court vacate the term of
community control from his sentence.
Unauthorized Split Sentence
{¶3} Under Ohio law, prison and community-control sanctions are
alternative punishments for felony offenses and split sentences are generally not
statutorily authorized. See State v. Anderson, 143 Ohio St. 3d 173, 2015-Ohio-2089,
35 N.E.3d 512, ¶ 21-31. Thus, absent an express exception, the sentencing court must
determine the appropriate sanction from the alternatives, in accordance with the
sentencing statutes, and impose only that sanction. See id. at ¶ 31; State v. Tolbert,
1st Dist. Hamilton No. C-170711, 2019-Ohio-2557, ¶ 32.
{¶4} Here, the trial court imposed a prison term to be followed by a term of
community control. No statutory exception applied to allow the imposition of a term
of community control after the sentencing court found a prison term appropriate.
Thus, the trial court erred as a matter of law by imposing an unauthorized split
sentence. Anderson at ¶ 31. Accordingly, we sustain the assignment of error.
Remedy
{¶5} Although the parties agree that the trial court erred, they disagree on
the proper remedy for the improper split sentence. Richards contends that this court
should vacate the term of community control from his sentence because it is “void.”
But the trial court had both subject-matter and personal jurisdiction in this case, so
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OHIO FIRST DISTRICT COURT OF APPEALS
no part of Richards’s sentence could be void. See State v. Harper, Slip Opinion No.
2020-Ohio-2913, ¶ 42.
{¶6} The state contends the entire sentence should be vacated and the cause
remand for a new sentencing hearing. According to the state, the error is similar to
those instances where the court improperly imposes sentences on two or more allied
offenses of similar import. When an appellant prevails on that sentencing error, the
proper remedy is to vacate the sentences affected by the allied-offenses error and
remand the matter for the state’s necessary election and a new sentencing hearing
involving the remaining offense or offenses. See State v. Wilson, 129 Ohio St. 3d 214,
2011-Ohio-2669, 951 N.E.2d 381, paragraph one of the syllabus and ¶ 18.
{¶7} We are not convinced by the state’s reasoning that the entire sentence
should be vacated and the matter remanded for a new sentencing hearing. The
sentencing error in this case involves a single offense. Richards does not challenge
the appropriateness of the prison sanction imposed for that offense, only the trial
court’s authority to additionally impose a term of community control. While that
term of community control is not void, it is voidable, and Richards has successfully
challenged in this appeal the trial court’s action imposing that part of the sentence.
Because vacating the unauthorized community-control sanction does not disturb the
unchallenged prison sanction, we need only vacate the community-control sanction
and leave the 12-month prison term intact. See State v. Paige, 153 Ohio St. 3d 214,
2018-Ohio-813, 103 N.E.3d 800, ¶ 14; Anderson, 143 Ohio St. 3d 173, 2015-Ohio-
2089, 35 N.E.3d 513, at ¶ 32; Tolbert, 1st Dist. Hamilton No. C-170711, 2019-Ohio-
2557, at ¶ 34.
Conclusion
{¶8} Because the trial court erred by imposing a community-control
sanction after imposing a prison term for the single offense of trespass in a
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OHIO FIRST DISTRICT COURT OF APPEALS
habitation, we vacate the community-control sanction from Richards’s sentence. In
all other respects, we affirm.
Judgment accordingly.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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