State v. Hitchcock (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Hitchcock, Slip Opinion No. 2019-Ohio-3246.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-3246
THE STATE OF OHIO, APPELLEE, v. HITCHCOCK, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Hitchcock, Slip Opinion No. 2019-Ohio-3246.]
Criminal law—Sentencing—Trial court lacked authority to order, as part of
community-control sentence, that defendant be placed in community-based
correctional facility after completing separate prison term—Court of
appeals’ judgment reversed and cause remanded for resentencing.
(No. 2018-0012—Submitted February 20, 2019—Decided August 15, 2019.)
CERTIFIED by the Court of Appeals for Fairfield County, No. 16-CA-41,
2017-Ohio-8255.
________________
FISCHER, J.
{¶ 1} In this case, we are tasked with answering the certified-conflict
question whether a trial court may impose community-control sanctions on one
felony count to be served consecutively to a prison term imposed on a separate
felony count. We answer that question in the negative and conclude that unless
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otherwise authorized by statute, a trial court may not impose community-control
sanctions on one felony count to be served consecutively to a prison term imposed
on another felony count.
I. Factual and Procedural Background
{¶ 2} In 2016, appellant, Jeffery A. Hitchcock, was charged with four third-
degree felony counts of unlawful sexual conduct with a minor in violation of R.C.
2907.04(A) and (B)(3) and one first-degree misdemeanor count of endangering
children in violation of R.C. 2919.22(A) and (E)(2)(a). Each of the felony counts
alleged identical conduct: that Hitchcock engaged in sexual conduct with a
particular minor.
{¶ 3} Appellee, the state of Ohio, and Hitchcock reached a plea agreement
in which Hitchcock agreed to plead guilty to three of the counts of unlawful sexual
conduct with a minor (Counts One, Two, and Three) and the state agreed to move
to dismiss the remaining count of unlawful sexual conduct with a minor (Count
Four) and the count of endangering children (Count Five). The trial court accepted
Hitchcock’s pleas, found him guilty of Counts One, Two, and Three, and dismissed
the remaining counts.
{¶ 4} The trial court found that the offenses occurred on different dates and
that the offenses were not allied offenses of similar import and did not merge for
purposes of sentencing. The court found it necessary that Hitchcock serve a
significant amount of time in prison to impress upon him the severity of his actions
and to deter him and others from engaging in similar conduct in the future. The
court also found it important that Hitchcock be in a position to work toward
rehabilitation.
{¶ 5} On both Count One and Count Two, the court ordered Hitchcock to
serve a five-year prison term, with each term to run consecutively to the other. On
Count Three, the court ordered Hitchcock to serve a five-year term of community
control. The court ordered this community-control term to be served consecutively
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to the prison terms imposed on Counts One and Two. It reserved the authority to
order Hitchcock to serve an additional, consecutive five-year prison term should he
violate any of the terms or conditions of his community control. Pursuant to the
community-control terms imposed by the court, Hitchcock was to be assessed for
potential placement in a community-based correctional facility (“CBCF”) for
purposes of sex-offender treatment, and the court also ordered him to pay
restitution. The community-control terms also included a number of nonresidential
sanctions, including outpatient mental-health and substance-abuse counseling,
intensive supervised probation, GPS monitoring, a no-contact order, and random
house checks.
{¶ 6} Hitchcock appealed his sentence, arguing in part that the trial court
erred in requiring him to serve a term of community control consecutively to the
prison terms that it imposed. The Fifth District Court of Appeals affirmed. The
court first noted that Ohio’s courts of appeals are split on the issue whether a trial
court may require that a term of community-control sanctions imposed on one
felony count be served consecutively to a prison term imposed on another felony
count. The Fifth District concluded that a trial court may do so, reasoning that R.C.
2929.13(A) provides trial courts broad authority to impose “ ‘any sanction or
combination of sanctions on the offender that are provided in sections 2929.14 to
2929.18 of the Revised Code,’ ” 2017-Ohio-8255, ¶ 19. The court also emphasized
R.C. 2929.11(A)’s directive that trial courts use the minimum sanctions that they
determine are necessary to accomplish the purposes of felony sentencing without
imposing an unnecessary burden on state- or local-government resources. Id. at
¶ 20-21.
{¶ 7} The Fifth District certified that its judgment was in conflict with both
the judgment of the Eighth District Court of Appeals in State v. Anderson, 2016-
Ohio-7044, 62 N.E.3d 229 (8th Dist.), and the judgment of the Twelfth District
Court of Appeals in State v. Ervin, 2017-Ohio-1491, 89 N.E.3d 1 (12th Dist.). The
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court certified the conflict issue as “[w]hether a trial court may impose a term of
residential or nonresidential community control sanctions on one felony count, to
be served consecutively to a term of imprisonment imposed on another count.”
{¶ 8} We determined that a conflict exists, accepted the appeal, and held the
case for our decision in State v. Paige, 153 Ohio St. 3d 214, 2018-Ohio-813, 103
N.E.3d 800, in which we held that the trial court lacked statutory authority to
impose a CBCF term as a community-control sanction to be served consecutively
to a prison term imposed on a separate offense, id. at ¶ 13. 152 Ohio St. 3d 1405,
2018-Ohio-723, 92 N.E.3d 877. After we announced our decision in Paige, we
lifted the stay on this case and ordered briefing. 152 Ohio St. 3d 1439, 2018-Ohio-
1600, 96 N.E.3d 296.
II. Analysis
{¶ 9} Hitchcock argues that trial courts may impose only sentences
authorized by statute and that they may not impose a particular sentence without
express authority to do so. Because the Revised Code does not contain an express
grant of authority to order the imposition of nonresidential community-control
sanctions to be served consecutively to a prison term, Hitchcock contends, a trial
court may not impose such a sentence. Hitchcock further argues that pursuant to
this court’s decision in Paige, the trial court lacked the authority to order that he be
assessed for possible placement in a CBCF following his completion of his prison
terms.
{¶ 10} The state responds that Hitchcock’s sentence is entirely proper and
lawful. It notes the broad sentencing discretion granted trial courts under R.C.
2929.13(A) and the lack of statutory authority prohibiting trial courts from
imposing a community-control sanction for one felony to be served consecutively
to a prison term for another felony. In addition, the state argues that the trial court
properly ordered Hitchcock to be assessed for possible placement in a CBCF
following completion of his prison terms. In making this argument, the state asserts
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that this case is distinguishable from Paige because here, the trial court made the
findings that R.C. 2929.14(C)(4)(b) and (c) require a trial court to make before
imposing consecutive prison terms.
A. Pursuant to Paige, a trial court lacks authority to order that a defendant be
assessed for potential placement in a CBCF following completion of a prison term
{¶ 11} Before considering the certified-conflict question, we first address
the effect of Paige on this case. In Paige, we held that unless a statutory exception
listed in R.C. 2929.41(A) applies to permit a CBCF term to run consecutively to a
prison term, a trial court has no authority to order, as part of a community-control
sentence, that a defendant be placed in a CBCF after completing a prison term
imposed for another offense in that case. 153 Ohio St. 3d 214, 2018-Ohio-813, 103
N.E.3d 800, at ¶ 13. Because vacating the improperly imposed CBCF term in Paige
would not disturb the remainder of the validly imposed community-control
sentence, we determined that the proper remedy in that case was to vacate only the
improperly imposed residential sanction. Id. at ¶ 14.
{¶ 12} As in Paige, none of the statutory exceptions listed in R.C.
2929.41(A) apply in this case. The state argues that because the trial court in this
case made the findings required by R.C. 2929.14(C)(4)(b) and (c) before imposing
consecutive prison terms, this case is distinguishable from Paige. However, R.C.
2929.14(C)(4) does not permit the consecutive terms imposed in this case. That
statute permits a trial court to require an offender to serve multiple “prison terms”
consecutively if the court makes certain findings. Id. R.C. 2929.41(A) delineates
three different types of incarceration: (1) a “prison term”; (2) a “jail term”; and (3)
a “sentence of imprisonment.” Placement in a CBCF is not a prison term but, rather,
a “sentence of imprisonment,” as this court explained in Paige: “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).” Id. at ¶ 12.
This statement from Paige is confirmed by R.C. 2929.01(E), which specifies that a
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community-control sanction, such as a CBCF term, imposed pursuant to R.C.
2929.16 is a “sanction that is not a prison term.” (Emphasis added.) Because 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.
{¶ 13} Pursuant to Paige, the trial court in this case had no authority to
order, as part of a community-control sentence, that Hitchcock be placed in a CBCF
after completing a separate prison term. Although the court in this case ordered
that Hitchcock be assessed for potential placement in a CBCF (rather than order
him to be placed in a CBCF, as the trial court did in Paige), the fact remains that
there is no statutory basis for placing Hitchcock in a CBCF after his prison term is
completed.
B. Unless otherwise authorized by statute, a trial court may not impose
community-control sanctions on one felony count to be served consecutively to a
prison term imposed on another felony count
{¶ 14} We now turn to the certified-conflict question: whether a trial court
may impose community-control sanctions on one felony count to be served
consecutively to a prison term on another felony count.
{¶ 15} In considering this question, it is helpful to review the relevant
aspects of Ohio’s sentencing process. In Ohio, a court sentencing a defendant on
multiple felony counts must initially determine the limits of its discretion. Some
felonies involve mandatory prison terms or a specification that removes sentencing
discretion from the trial court. R.C. 2929.14(B).
{¶ 16} When sentencing a defendant on other felonies, such as the third-
degree felonies at issue in this case, the trial court has discretion to impose either a
prison term under R.C. 2929.14 or community-control sanctions under R.C.
2929.15. In making this determination, the trial court is sometimes guided by
statutory presumptions or preferences affixed to certain felony levels. R.C.
2929.13. The applicable statute might apply to the relevant felony either a
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rebuttable presumption of a prison term, R.C. 2929.13(D), or a preference for
community-control sanctions, R.C. 2929.13(B), or the statute might be neutral—
without a presumption or preference either way, R.C. 2929.13(C).
{¶ 17} In exercising its discretion to impose either a prison term or
community-control sanctions for an offense, the trial court must consider the
overriding purposes of felony sentencing under R.C. 2929.11 and the aggravating
and mitigating factors enumerated in R.C. 2929.12.
{¶ 18} As this court has previously stated, in Ohio, judges have no inherent
power to create sentences, and the only sentence that a trial judge may impose is
that provided for by statute. State v. Anderson, 143 Ohio St. 3d 173, 2015-Ohio-
2089, 35 N.E.3d 512, ¶ 10, 12.
{¶ 19} In Anderson, we explained that in 1995, the General Assembly
fundamentally altered Ohio’s criminal sentencing system by enacting a
comprehensive sentencing scheme in Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV,
7136 (“S.B. 2”). Id. at ¶ 14. With this in mind, we clarified that because the
parameters of sentencing are established by the legislature, Ohio courts may impose
only sentences that are authorized by statute. Id. at ¶ 13. The scheme enacted by
the General Assembly in S.B. 2 stands in contrast to a system in which trial judges
may impose any sentence not prohibited by statute. See id.
{¶ 20} The Revised Code is silent as to whether a community-control
sanction imposed for one felony runs concurrently with or consecutively to a prison
term imposed for another felony. We have previously held, however, that a
sentence consisting of community-control sanctions for one offense may run
concurrently with a prison term imposed for a separate offense. Paige, 153 Ohio
St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, at ¶ 1. This holding in Paige is
consistent with the scheme set forth in the Revised Code, in which trial courts are
given express authorization to impose a prison term for one offense and
community-control sanctions for another offense.
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{¶ 21} The general principle set forth in the Revised Code is that concurrent
sentences are the default and consecutive sentences are the exception. This general
principle is consistent with the rule of lenity, R.C. 2901.04(A). See State v. Elmore,
122 Ohio St. 3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38 (“The rule of lenity is
a principle of statutory construction that provides that a court will not interpret a
criminal statute so as to increase the penalty it imposes on a defendant if the
intended scope of the statute is ambiguous”). R.C. 2929.41(A), for example,
provides that prison terms, jail terms, and sentences of imprisonment “shall be
served concurrently” unless a statutory exception provides otherwise. One of those
exceptions is found in R.C. 2929.14(C)(4), which authorizes trial courts to run
multiple prison terms consecutively if they make certain findings.
{¶ 22} The existence of R.C. 2929.15(A)(1) further illustrates the general
principle that consecutive sentences are the exception rather than the general rule.
Under R.C. 2929.15(A)(1), if a trial court imposes a community-control sanction
in addition to a mandatory prison term for a third- or fourth-degree felony offense
of operating a vehicle while under the influence, then the community-control
sanction must be served consecutively to the prison term. Thus, when read in the
light of this court’s decision in Anderson, R.C. 2929.41(A) and 2929.15(A)(1)
support the proposition that consecutive sentences may be imposed only when the
Revised Code specifies that sentences may or must be imposed consecutively.
{¶ 23} Although R.C. 2929.13(A) grants trial courts broad discretion to
“impose any sanction or combination of sanctions on the offender that are provided
in sections 2929.14 to 2929.18 of the Revised Code,” the sentencing discretion of
trial courts is not unfettered. It is true that trial courts may impose either a prison
term or community-control sanctions on certain felony offenses, including the ones
at issue in this case. It is also true that the Revised Code does not prohibit trial
courts from imposing community-control sanctions on one felony to be served
consecutively to a prison term imposed on another felony. But this does not mean
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that trial courts are authorized to impose such consecutive terms. Absent express
statutory authorization for a trial court to impose the increased penalty of
consecutive sentences, the trial court must follow the default rule of running the
sentences concurrently.
{¶ 24} Because no provision of the Revised Code authorizes trial courts to
impose community-control sanctions on one felony count to be served
consecutively to a prison term imposed on another felony count, we must conclude
that trial courts may not do so. We accordingly answer the certified-conflict
question in the negative and conclude that unless otherwise authorized by statute, a
trial court may not impose community-control sanctions on one felony count to be
served consecutively to a prison term imposed on another felony count.
III. Conclusion
{¶ 25} We conclude that pursuant to our decision in Paige, there is no
statutory basis for ordering that an offender be assessed for placement in a CBCF
after that offender’s completion of a prison term imposed for another offense in that
case. We also answer the certified-conflict question in the negative and conclude
that unless otherwise authorized by statute, a trial court may not impose
community-control sanctions on one felony count to be served consecutively to a
prison term imposed on another felony count. We accordingly reverse the judgment
of the Fifth District Court of Appeals and remand this case to the trial court for
resentencing consistent with this opinion.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., concurs in judgment only.
DONNELLY, J., concurs in judgment only, with an opinion.
STEWART, J., concurs in judgment only, with an opinion.
DEWINE, J., concurs in part and dissents in part, with an opinion joined by
KENNEDY and FRENCH, JJ.
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_________________
DONNELLY, J., concurring in judgment only.
{¶ 26} I write separately to emphasize that we are missing a golden
opportunity to provide clear guidance to trial courts. The lead opinion properly
explains that a court sentencing a defendant on multiple felony counts must initially
determine the limits of its discretion, then consider statutory presumptions and
preferences as well as relevant aggravating and mitigating factors. The lead opinion
misses the mark, however, when it ignores the necessity for the court, while
considering the purposes of felony sentencing under R.C. 2929.11 and 2929.12, to
address a threshold question: whether the defendant is amenable to community-
control sanctions.
{¶ 27} A defendant is either amenable to community-control sanctions or
not; he or she cannot be both amenable and not amenable. If a defendant is
amenable to community-control sanctions, then the court may retain jurisdiction
over the defendant and place one or more of an array of restrictions on the defendant
to effectuate Ohio’s statutory sentencing principles. See R.C. 2929.15 through
2929.18. If the defendant is not amenable to community-control sanctions, then the
court must impose a sentence of confinement, the length of which the court
determines, in its discretion, as will best effectuate Ohio’s sentencing principles.
R.C. 2929.12(A). Upon sentencing, the court’s jurisdiction over the individual
comes to an end. State v. Gilbert, 143 Ohio St. 3d 150, 2014-Ohio-4562, 35 N.E.3d
493, ¶ 9. The defendant’s eventual reentry into society is governed by R.C.
2967.28, the postrelease-control statute.
{¶ 28} A review of the record in this case makes it readily apparent what
the trial court was attempting to accomplish by imposing the sentence it did. The
trial court, faced with appellant, Jeffery Hitchcock, a defendant who had committed
multiple and very serious offenses, after considering the facts of the case and the
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purposes of felony sentencing, concluded that a 15-year sentence was necessary to
protect the public, to punish Hitchcock, and to set him on a course toward
rehabilitation. In an effort to provide the public with an even greater level of
protection, the trial court wanted to retain jurisdiction on Count Three, so that after
completion of Hitchcock’s prison terms, the court would be able to oversee his
reentry into society by placing him in a community-based correctional facility. This
oversight would have been in addition to that of the Adult Parole Authority, which
would by law be assigned to oversee Hitchcock’s postrelease control. See R.C.
2967.28(D) through (F). The trial court’s sentence in this case, however well
intentioned, is not permitted under Ohio’s sentencing scheme.
{¶ 29} After finding that a defendant is not amenable to community-control
sanctions at a sentencing hearing, the only mechanism by which a sentencing court
may regain jurisdiction over the defendant is by granting judicial release pursuant
to statute. See R.C. 2929.20. If trial courts were able to oversee defendants’ reentry
into society by placing them in community-based correctional facilities after
completion of their prison terms, it would create an administrative quagmire. It
would force the Ohio Department of Rehabilitation and Correction to effectuate
postrelease control while also returning the defendant to the court’s jurisdiction for
imposition of community-control sanctions.
{¶ 30} The statutory scheme does not allow defendants to be both amenable
to community control and not amenable to community control. I would flatly
inform trial courts of this and not wait until the next case to do so. Accordingly, I
concur in judgment only.
_________________
STEWART, J., concurring in judgment only.
{¶ 31} I concur only in the lead opinion’s conclusion that there is no specific
statutory authorization for a sentencing judge to impose community-control
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sanctions on one felony count to be served consecutively to a prison term imposed
on another felony count.
{¶ 32} R.C. 2929.13(A) does not support the proposition that a sentencing
judge may order a term of community control imposed on one felony count to run
consecutively to a prison term imposed on another felony count. R.C. 2929.13(A)
states that “a court that imposes a sentence upon an offender for a felony may
impose any sanction or combination of sanctions on the offender that are provided
in sections 2929.14 to 2929.18 of the Revised Code.” The words “sentence” and
“felony” are written in the singular. This wording is consistent with the idea that
“[a] sentence is the sanction or combination of sanctions imposed for each separate,
individual offense” (emphasis added), State v. Saxon, 109 Ohio St. 3d 176, 2006-
Ohio-1245, 846 N.E.2d 824, paragraph one of the syllabus. Thus, R.C. 2929.13(A)
does nothing more than authorize a sentencing judge to impose a combination of
sanctions on a single felony count—for example, to impose both a prison term and
a financial sanction. See, e.g., R.C. 2929.18(A) (“the court imposing a sentence
upon an offender for a felony may sentence the offender to any financial sanction
or combination of financial sanctions authorized under this section”). R.C.
2929.13(A) says nothing about whether the judge may order sanctions imposed on
one count to be served consecutively to a sanction imposed on another count.
{¶ 33} Some, including the author of the opinion concurring in part and
dissenting in part, have argued that one cannot serve a term of community control
while one is serving a prison term. See, e.g., State v. Anderson, 2016-Ohio-7044,
62 N.E.3d 229, ¶ 49 (8th Dist.) (Boyle, J., dissenting). But that is not true: in State
v. Paige, 153 Ohio St. 3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 1, this court
unanimously determined that a five-year term of community control was properly
ordered to run concurrently with a 42-month prison term. And the concurring and
dissenting opinion’s reliance on R.C. 2929.15(A) for the proposition that a term of
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community control would be stayed anyway if an offender is serving a concurrent
prison term is misplaced. That provision states:
If the offender absconds or otherwise leaves the jurisdiction of the
court in which the offender resides without obtaining permission
from the court or the offender’s probation officer to leave the
jurisdiction of the court, or if the offender is confined in any
institution for the commission of any offense while under a
community control sanction, the period of the community control
sanction ceases to run until the offender is brought before the court
for its further action.
R.C. 2929.15(A)(1).
{¶ 34} The language “while under a community control sanction” means
that the provision applies only to offenders who are serving a term of community
control and are then confined in any institution for having committed an offense
while still under that community-control sanction. By stating that the term of
community control “ceases” upon subsequent confinement for another offense,
R.C. 2929.15(A) makes clear that it applies to offenders who are already serving a
term of community control. Because of this, R.C. 2929.15(A) gives no support to
the proposition that the term of community control imposed in this case would not
start to run until a prison term imposed on another count is completed.
{¶ 35} Finally, the argument made in the concurring and dissenting opinion
that our holding today limits a sentencing judge’s discretion under R.C. 2929.11(A)
ignores the well-established principle that a sentencing judge’s discretion exists
only to the extent that it has been provided by the legislature. See State v. Bates,
118 Ohio St. 3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 12 (“the authority for a
trial court to impose sentences derives from the statutes enacted by the General
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Assembly”). Of course, a sentencing judge has discretion to impose a prison term
on one count and community control on another count. The legislature has not,
however, specifically authorized the imposition of a term of community control on
one count to run consecutively to a prison term imposed on another count. We
cannot limit discretion that does not exist.
_________________
DEWINE, J., concurring in part and dissenting in part.
{¶ 36} Under the plain terms of Ohio’s sentencing statutes, a trial court is
authorized to impose on one count a term of imprisonment and on another count a
term of community control that commences upon an offender’s release from prison.
The lead opinion, however, ignores the plain language of the statutes and imposes
new limits on a trial court’s ability to craft an appropriate sentence. As a
consequence, I must dissent from the part of the lead opinion that concludes a trial
judge may not impose a community-control sanction to be served following a
prison term.
{¶ 37} In determining whether a sentence has been authorized by statute,
we must start with R.C. 2929.13(A). That provision provides that “a court that
imposes a sentence upon an offender for a felony may impose any sanction or
combination of sanctions on the offender that are provided in sections 2929.14 to
2929.18 of the Revised Code.” (Emphasis added.) Here, Jeffery Hitchcock was
convicted of violating R.C. 2907.04, a third-degree felony. For such a violation,
R.C. 2929.14(A)(3)(a) authorizes the trial court to impose a prison term of up to 60
months and R.C. 2929.15(A)(1) authorizes the trial court to impose a term of
community-control sanctions of up to five years. In my view, when R.C.
2929.13(A) says that a trial court may impose any sanction, it means the court may
impose any sanction. Thus, for each of the three felony counts, the trial court was
authorized to impose any of the sanctions authorized by R.C. 2929.14 and 2929.15.
Accordingly, the trial court acted within its statutory authority when it imposed 60-
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month prison terms for two of the offenses and a five-year community-control
sanction for the other.
{¶ 38} The lead opinion acknowledges that “trial courts may impose either
a prison term or community-control sanctions on certain felony offenses, including
the ones at issue in this case.” Lead opinion at ¶ 23. Nevertheless, the lead opinion
concludes that the community-control sentence that Hitchcock received is
impermissible because the trial court directed that it be served consecutively to his
prison terms. Id. at ¶ 24.
{¶ 39} But, of course, one cannot serve a term of “community” control
while one is in prison. By definition, a community-control sanction “is not a prison
term.” R.C. 2929.01(E); see State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229,
¶ 49 (8th Dist.) (Boyle, J., dissenting) (“It is axiomatic that an offender cannot serve
a sentence of community control sanctions while in prison” [emphasis deleted]).
Indeed, by statute, a term of community control is stayed while an offender is in
prison: “[I]f the offender is confined in any institution for the commission of any
offense while under a community control sanction, the period of the community
control sanction ceases to run until the offender is brought before the court for its
further action.” R.C. 2929.15(A). Thus, it is irrelevant that in this case the trial
judge explicitly labeled the sentences as consecutive. A trial judge is permitted to
sentence an offender to prison on one count and community control on another, and
the community-control sanction will necessarily not start to run until after the
prison term is complete.
{¶ 40} Today’s lead opinion is hard to reconcile with our recent decision in
State v. Paige, 153 Ohio St. 3d 214, 2018-Ohio-813, 103 N.E.3d 800. There we
dealt with a five-year sentence of community control that the sentencing judge
ordered to run concurrently with a 42-month prison term. Id. at ¶ 3. Contrary to
the suggestion of the second opinion concurring in judgment only, this does not
mean that the defendant served “community control” while in prison. See opinion
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concurring in judgment only, Stewart, J., at ¶ 33. To do so would be impossible—
one cannot be “under the general control and supervision of a department of
probation,” R.C. 2929.15(A)(2)(a), while held in prison. Rather, the clear intent of
the sentence imposed in Paige was that the defendant serve 42 months in prison
and after the completion of that time, serve an additional 18 months of community
control. While the sentencing judge in Paige labeled the sentence as a concurrent
term of community control and prison, the same result could have been achieved
by labeling the sentence as an 18-month term of community control to be served
consecutively to a 42-month prison term. One wonders how the lead opinion can
conclude that such a sentence is okay if the first label is attached but not the second.
{¶ 41} In saying that it is applying the “default rule” that sentences run
concurrently the lead opinion plays fast and loose with statutory text. Lead opinion
at ¶ 23. The primary source cited by the lead opinion for such a “default rule” is
R.C. 2929.41(A). That provision states that unless certain statutory exceptions
apply, “a prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of imprisonment.”
(Emphasis added.) By its terms, then, the lead opinion’s “default rule” should apply
only to sentences of imprisonment, not community-control sentences that do not
include sentences of imprisonment.
{¶ 42} As “further illustrat[ion]” of its default rule, the lead opinion cites
R.C. 2929.15(A)(1). Lead opinion at ¶ 22. That provision, however, simply
authorizes a trial court in certain circumstances to impose both a prison term and a
community-control sanction for a single driving-while-under-the-influence offense
and specifies that in such an instance the prison term shall be served first. The
provision does nothing more than establish a special rule allowing multiple
punishments for a single violation and specify the order in which the punishments
shall be served. The lead opinion’s suggestion that this provision supports its so-
called default rule defies reason.
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{¶ 43} The lead opinion also looks to the rule of lenity to justify its default
rule. Id. at ¶ 21. But it is hard to see how the rule of lenity supports a rule that
would allow a trial court to impose consecutive prison terms but not replace one of
those prison terms with a term of community control.
{¶ 44} Indeed, not only is the lead opinion’s proposed rule at odds with the
rule of lenity, but it also undercuts the guidance provided by R.C. 2929.11(A):
A court that sentences an offender for a felony shall be
guided by the overriding purposes of felony sentencing. The
overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others, to punish the offender,
and to promote the effective rehabilitation of the offender using the
minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local
government resources. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating
the offender, and making restitution to the victim of the offense, the
public, or both.
(Emphasis added.)
{¶ 45} Under the lead opinion’s proposed rule, however, a court would not
always be able to impose “the minimum sanctions” necessary to protect the public
and punish the offender. Take this case, for example: under the lead opinion, on
remand, the trial court may not impose a community-control sanction to run after
completion of the two consecutive 60-month prison terms, yet it would be perfectly
okay for the court to impose a third consecutive 60-month prison term. Never mind
that the trial judge has already found that community control, not prison, is the
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minimum sanction necessary to accomplish the purposes of felony sentencing as to
the third count.
{¶ 46} The result reached by the lead opinion also runs contrary to our
holding in State v. Saxon that “a judge sentencing a defendant pursuant to Ohio law
must consider each offense individually and impose a separate sentence for each
offense,” 109 Ohio St. 3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9. Under the
lead opinion, there would be no opportunity for the trial court in a case like this to
consider each offense individually: once the trial court has decided to impose a
prison term on one offense, the court would no longer be able to consider whether
a community-control sanction (which will necessarily commence after the prison
term) is appropriate for another offense.
{¶ 47} The first concurrence follows the same flawed logic in arguing that
a trial judge cannot impose a prison sentence on one count and community control
on another count because in sentencing the defendant to prison, the judge will have
already determined that the defendant is not amenable to community control.
Opinion concurring in judgment only, Donnelly, J., at ¶ 27. This, of course, ignores
both our holding in Saxon and the requirement that the judge impose the minimum
sanctions necessary to achieve the goals of felony sentencing. See R.C.
2929.11(A). In imposing a community-control sanction that follows a prison term,
the trial court will necessarily consider whether a term of community control is
appropriate after the prison term has been served. Contrary to what the concurrence
suggests, there is nothing in our sentencing statutes that limits the ability of a trial
court to impose such a combination of sentences.
{¶ 48} The end result of the lead opinion today would be to limit the
discretion of trial judges to craft sentences that minimize the amount of prison time
that offenders must serve. There are certainly situations in which a trial judge after
exercising his or her considered judgment might determine that rather than impose
a lengthy prison term, a more modest prison term followed by community control
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January Term, 2019
would be appropriate. Such a period of supervision might be helpful to ensure that
the offender continues to pursue substance-abuse or mental-health treatment, to
maintain a stay-away order from the crime victim, to ensure that restitution is paid,
or for a myriad of other reasons. But the result of the lead opinion would be that
these options are off the table. The only option left for the judge who does not
believe that a modest prison term is sufficient would be to add more prison time.
{¶ 49} And all that is too bad. The legislature has given us a statute
allowing a trial judge to impose the sentence—be it probation or prison—that the
judge finds is appropriate for each offense. See R.C. 2929.13(A), 2929.14(A), and
2929.15(A). The legislature has also directed trial judges to impose the minimum
sanctions that are necessary to protect the public and prevent future crime. R.C.
2929.11(A). These seem like good rules—I don’t know why this court would
choose to make up its own.
{¶ 50} I do agree with the lead opinion on one point though. Under our
decision in Paige, 153 Ohio St. 3d 214, 2018-Ohio-813, 103 N.E.3d 800, the portion
of the community-control sanction that ordered Hitchcock to be assessed for
possible placement in a community-based correctional facility (“CBCF”) should be
vacated. R.C. 2929.41(A) explicitly provides that a prison term, jail term, or
sentence of imprisonment shall be served concurrently unless a specific exception
applies. Because a sentence to a CBCF is a sentence of imprisonment and no
specific exception applies, Hitchcock may not be sentenced to a CBCF term to be
served consecutively to his prison terms.
{¶ 51} Thus, I would answer the certified question in the affirmative and
modify Hitchcock’s sentence to remove the provisions relating to the CBCF
assessment. Because the lead opinion sees it otherwise, I respectfully dissent in
part.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
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R. Kyle Witt, Fairfield County Prosecuting Attorney, and Mark A. Balazik,
Assistant Prosecuting Attorney, for appellee.
Parks and Meade, L.L.C., and Darren L. Meade, for appellant.
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