State v. Horner

[Cite as State v. Horner, 2016-Ohio-7608.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103719
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARISSA C. HORNER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-593413-B and CR-15-594917-B
BEFORE: S. Gallagher, J., Boyle, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 3, 2016
ATTORNEY FOR APPELLANT
Steve W. Canfil
55 Public Square, Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Melissa Riley
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Marissa C. Horner appeals the sentence imposed in two
underlying cases, Cuyahoga C.P. Nos. CR-15-593413-B and CR-15-594917-B. Upon
review, we affirm the maximum prison sentence imposed in case No. CR-15-594917-B,
we vacate the imposition of consecutive sentences and the sentence imposed in case No.
CR-15-593413-B, and we remand the matter to the trial court for resentencing in case No.
CR-15-593413-B and modification of the judgment entry in case No. CR-15-594917-B.
{¶2} In case No. CR-15-593413-B, appellant pleaded guilty to trafficking,
amended to a fourth-degree felony, with forfeiture specifications. All remaining counts
were nolled.
{¶3} In case No. CR-15-594917-B, appellant pleaded guilty to compelling
prostitution, a third-degree felony, amended to include the names of the victims. All
remaining counts were nolled.
{¶4} At sentencing, in case No. CR-15-594917-B, the court imposed a maximum
prison sentence of 36 months in prison. In case No. CR-15-593413-B, the court imposed
community control sanctions for three years. As a condition of the community control, if
found eligible, appellant was ordered into the community based correctional facility
program. The court ordered the sentences to be served consecutively, with the
community control sanctions to commence upon the completion of the prison term. The
court also imposed five years of mandatory postrelease control.
{¶5} Appellant timely filed this appeal. She raises two assignments of error for
our review. Under her first assignment of error, appellant claims the trial court erred in
failing to notify her of the consequences of failing to comply with the requirements of
community control. Under her second assignment of error, appellant claims the trial
court erred in sentencing her to the maximum sentence in case No. CR-15-594917-B and
to consecutive terms of incarceration.
{¶6} First, we address the sentence imposed in case No. CR-15-593413-B.
Appellant claims the court failed to inform her of the prison term she could receive if she
violated her community control sanctions. A review of the record reflects otherwise. At
sentencing, the trial court notified appellant that if she failed to comply with her
community control sanctions, the court could sentence her to a prison term of up to 18
months. Further, insofar as appellant complains the journal entry contains a flawed
reference to “two years community control sanctions,” rather than the three-year sentence
that was actually imposed and as is also reflected in the entry, this error would be subject
to a nunc pro tunc correction. Nonetheless, as discussed below, we must vacate the
sentence.
{¶7} Appellant also claims that the trial court erred in imposing consecutive
sentences, challenging the court’s findings. Because the trial court lacked authority to
impose consecutive sentences, we need not even address its findings.
{¶8} Although a trial court has discretion in imposing a sentence, the sentence
imposed must be within the boundaries of the legislative grant of authority. State v.
Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044, ¶ 1. As an intermediate
appellate court, we are bound to apply the statutory language as written and must adhere
to the clear precedent of the Ohio Supreme Court. Id. In this case, the trial court
imposed a sentence beyond that which it was authorized to impose.
{¶9} Trial courts may only impose sentences that are expressly authorized by
statute, as opposed to sentences that are not prohibited by statute. State v. Anderson, 143
Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 13. Moreover, trial courts are
duty-bound to apply sentencing laws as they are written and have no inherent power to
create sentences. Id. at ¶ 10. As a general rule, pursuant to R.C. 2929.41(A), a sentence
of imprisonment is to be served concurrently with any other sentence of imprisonment,
and only limited delineated exceptions exist. State v. Barnhouse, 102 Ohio St.3d 221,
2004-Ohio-2492, 808 N.E.2d 874, ¶ 11.
{¶10} At issue here is whether a trial court may impose consecutive service of
community control sanctions to a prison term. Recently, in Anderson, 8th Dist.
Cuyahoga No. 102427, 2016-Ohio-7044, the en banc majority of this court answered the
question in the negative. In that decision, the majority held: “Because there is no
statutory authority for the imposition of community control sanctions to be served
consecutive to, or following the completion of, a prison or jail term or other sentence of
imprisonment, [a] trial court [is] without authority to impose the same.” Id. at ¶ 31.
{¶11} As discussed in Anderson, “[a] term of residential sanctions cannot be
imposed consecutive to a prison term because as the Ohio Supreme Court recognized,
residential sanctions are sentences of imprisonment.” Id. at ¶ 15, citing Barnhouse at ¶
12. Such sentences must be served concurrently due to the lack of an exception to the
general rule in R.C. 2929.41(A). Anderson, 8th Dist. Cuyahoga No. 102427,
2016-Ohio-7044, at ¶ 12; Barnhouse at ¶ 18. Additionally, due to “the absence of an
express grant of authority to order the imposition of nonresidential sanctions to be served
consecutive to prison terms, those sanctions cannot be so imposed.” Anderson, 8th Dist.
Cuyahoga No. 102427, 2016-Ohio-7044, at ¶ 19. As found in Anderson, “we can only
conclude that the legislature limited the trial court’s authority — to impose community
control sanctions to be served following the offender’s release from a prison term — to
certain felony offenses [delineated under R.C. 2929.15(A)(1)].” Id. at ¶ 30.
{¶12} Because the trial court was without authority to impose community control
sanctions consecutive to a prison sentence, the sentence imposed in case No.
CR-15-593413-B is void and must be vacated.1
{¶13} Next, we address the sentence imposed in case No. CR-15-594917-B.
Appellant challenges the trial court’s imposition of the maximum sentence. A trial court
is not required to make any factual findings before imposing a maximum sentence. State
1
We note that R.C. 2967.29 provides a method for the court of common pleas
to cooperate with the department of rehabilitation and correction in supervising
offenders under parole or postrelease control. “The court, after consultation with
the board of county commissioners, may enter into an agreement with the
department allowing the court and the parole board to make joint decisions relating
to parole and post-release control to the extent permitted by section 2967.28 of the
Revised Code.” R.C. 2967.29(A). If such an agreement were in place, the court
could cooperate in structuring the guidelines of the defendant’s post-prison
monitoring. R.C. 2967.29(B)(6).
v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 14. Therefore, we review
the trial court’s sentence to determine if the sentence is otherwise contrary to law. R.C.
2953.08(G)(2). “A sentence is contrary to law if (1) the sentence falls outside the
statutory range for the particular degree of offense, or (2) the trial court failed to consider
the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors set forth in R.C. 2929.12.” State v. East, 8th Dist. Cuyahoga No.
102442, 2015-Ohio-4375, ¶ 6.
{¶14} Here, the trial court imposed a sentence within the statutory range, and the
journal entry states that “[t]he court considered all required factors of the law.” At
sentencing, the trial court stated it had reviewed the presentence investigation report, the
TASC assessment report, and a letter from appellant. The court indicated it heard the
testimony adduced at the trial of appellant’s codefendant. The court heard from one of
the victims at appellant’s sentencing hearing. Defense counsel presented the court with
mitigating evidence, and appellant personally addressed the court. Accordingly, because
the sentence was within the permissible statutory range and the trial court considered the
required factors of law, appellant’s maximum sentence is not contrary to law.
{¶15} Upon review, we affirm the 36-month maximum sentence imposed in case
No. CR-15-594917-B; we vacate the imposition of consecutive sentences and the
sentence imposed in case No. CR-15-593413-B; and we remand the matter to the trial
court for resentencing in case No. CR-15-593413-B and modification of the judgment
entry in case No. CR-15-594917-B.
{¶16} Judgment affirmed in part, vacated in part, and remanded to the lower court
for resentencing consistent with this opinion.
It is ordered that appellant and appellee share 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 resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, J., CONCURS;
MARY J. BOYLE, P.J., DISSENTS WITH SEPARATE OPINION
MARY J. BOYLE, P.J., DISSENTING:
{¶17} I respectfully dissent. I disagree with the majority that the “trial court
imposed a sentence beyond that which it was authorized to impose.” It is my view that
this case is distinguishable from our recent en banc decision, State v. Anderson, 8th Dist.
Cuyahoga No. 102427, 2016-Ohio-7044. In Anderson, the majority en banc decision
held that a trial court could not sentence an offender to prison for one felony offense and
community control sanctions for a separate felony offense — in the same case — and
order the community control sanctions to commence once the offender is released from
prison. See id. But in this case, unlike in the facts in Anderson, the trial court imposed
a 36-month prison sentence for a felony offense in one case and three years of community
control sanctions for a felony offense in a separate case. As I cautioned in my dissent in
Anderson, the majority is already attempting to extend Anderson beyond its holding. See
id. at ¶ 50 (Boyle, J., dissenting).
{¶18} As I emphasized in my dissent in Anderson, it is my view that State v.
Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, and State v.
Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, do not apply to the facts
in our en banc Anderson decision, nor do they apply to the facts in the present case. In
Barnhouse, the Ohio Supreme Court explicitly addressed only one question, stating at the
outset of its opinion: “[t]he issue presented in this case is whether a trial court may
impose consecutive jail sentences under R.C. 2929.16(A)(2).” Id. at ¶ 1. The Supreme
Court answered that question “in the negative,” thus preventing trial courts from
imposing “consecutive jail sentences.” Id. at the syllabus.
{¶19} Likewise, the Ohio Supreme Court’s Anderson decision only addressed the
question: “If a defendant is sentenced to prison for a term of incarceration, does the trial
court have authority to issue against the defendant, a ‘no contact’ order with the victim?”
Id. at ¶ 1. The court answered that question “in the negative” as well, holding that “[a]
trial court cannot impose a prison term and a no-contact order for the same felony
offense.” (Emphasis added.) Id. As I previously stated, the majority applies the dicta
in the Supreme Court’s Anderson case too broadly. See Anderson at ¶ 46.
{¶20} The facts in the present case are directly analogous to the facts in State v.
Molina, 8th Dist. Cuyahoga No. 83166, 2004-Ohio-1110, where this court upheld the trial
court’s imposition of a prison term for a felony offense in one case and community
control sanctions for a felony offense in a separate case, which were to commence upon
the defendant’s release from prison from his sentence in the first case.2 See id.{¶21} The majority now wants to remove a sentencing judge’s discretion when
sentencing a defendant for felony convictions in two separate cases. Again, as I stated in
my dissent in our en banc majority decision, the majority’s interpretation of Barnhouse
and the Supreme Court’s Anderson makes no sense in light of R.C. 2929.11, where the
General Assembly mandated that trial courts use “the minimum sanctions” necessary to
accomplish the purposes and principles of felony sentencing. See Anderson, 8th Dist.
Cuyahoga No. 102427, 2016-Ohio-7044, ¶ 48 (Boyle, J., dissenting). Indeed, the
majority would have upheld Horner’s sentence had the trial court imposed 36 months in
prison for the third-degree felony in the first case (as it did) and six to eighteen months in
prison for the fourth-degree felony in the second case (the range for fourth-degree
felonies), and ordered them to be served consecutively, for an aggregate sentence of a
2
The trial court judge in Molina was Judge Burt W. Griffin. Judge Griffin served on the
Ohio Criminal Sentencing Commission, which was responsible for the major sentencing overhaul in
S.B. 2. Judge Griffin also co-wrote the “bible” on Ohio felony sentencing law. See Griffin and
Katz, Ohio Felony Sentencing Law (Thompson West 2007).
possible 54 months in prison — rather than 36 months in prison and three years of
community control sanctions. Again, I stress that the majority’s interpretation of
Barnhouse and Anderson is counterintuitive and against the overriding principles and
purposes of Ohio’s felony sentencing laws.
{¶22} Thus, it is my view that the trial court in this case was fully within its power
to order defendant-appellant, Marissa Horner, to begin serving her sentence in the second
case once she served her prison sentence in the first case, i.e., the trial court could order
Horner to begin serving her community control sanctions for the second case once she
was released from prison in the first case.
{¶23} I would therefore affirm the trial court’s sentence in its entirety: 36-months
in prison for Cuyahoga C.P. No. CR-15-594917-B, and three years of community control
sanctions for Cuyahoga C.P. No. 15-593413-B, to commence upon Horner’s release from
prison in Cuyahoga C.P. No. 15-594917-B.