State v. Rutschilling

[Cite as State v. Rutschilling, 2017-Ohio-9252.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
CASE NO. 10-17-06
PLAINTIFF-APPELLEE,
v.
AARON N. RUTSCHILLING, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 10-17-07
PLAINTIFF-APPELLEE,
v.
AARON N. RUTSCHILLING, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 15-CRM-061, 14-CRM-060
Judgments Reversed and Remanded
Date of Decision: December 26, 2017
APPEARANCES:
Bryan Scott Hicks for Appellant
Matthew J. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-17-06 and 10-17-07
WILLAMOWSKI, J.
{¶1} Defendant-appellant Aaron N. Rutschilling (“Rutschilling”) brings this
appeal from the judgments of the Court of Common Pleas of Mercer County
revoking his community control and judicial release and sentencing him to prison.
Rutschilling challenges the consecutive nature of the sentences and the effectiveness
of his trial counsel. For the reasons set forth below, the judgments are reversed.
{¶2} On May 15, 2014, the Mercer County Grand Jury indicted Rutschilling
on one count of trafficking in marijuana in violation of R.C. 2925.03(A)(1),
(C)(3)(a), (C)(3)(b), a felony of the fourth degree. ADoc. 61. The case was assigned
the number 14-CRM-060. Id. Rutschilling entered a plea of not guilty. Doc. 21.
On December 11, 2014, Rutschilling filed a motion for intervention in lieu of
conviction for the indicted charge as well as an expected charge for possession of
heroin. ADoc. 39. On January 7, 2015, the State filed a bill of information in case
number 14-CRM-060 alleging an additional charge that Rutschilling had possessed
heroin on or about April 19, 2014, in violation of R.C. 2925.11(A), (C)(6)(a), a
felony of the fifth degree. ADoc. 40. On March 25, 2015, Rutschilling and the
State entered into a negotiated plea agreement. ADoc. 78. Rutschilling agreed to
enter pleas of guilty to an amended indictment count of trafficking in marijuana in
violation of R.C. 2925.03(A)(1); (C)(3)(a), a felony of the fifth degree, and one
1
As there are two cases appealed, the docket in case number 14-CRM-060 will be identified as “ADoc.” The
docket in case umber 15-CMR-061 will be identified as “BDoc.”
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Case No. 10-17-06 and 10-17-07
count of possession of heroin in violation of R.C. 2925.11(A); (C)(6)(a), a felony of
the fifth degree, as charged in the bill of information. Id. Rutschilling also agreed
to waive prosecution by indictment and consented to be prosecuted by the bill of
information. Id. In exchange, the State agreed to amend the trafficking in marijuana
charge from a fourth degree felony to a fifth degree felony. Id. The State also
agreed not to oppose intervention in lieu of conviction. Id. No sentencing
agreement was reached. Id. On March 20, 2015, an arraignment on the possession
of heroin charge and a change of plea hearing on the amended trafficking in
marijuana charge was held. ADoc. 83. At that time, Rutschilling entered pleas of
guilty pursuant to the negotiated plea agreement. Id. The trial court accepted the
pleas of guilty and scheduled sentencing for a later date. Id.
{¶3} While Rutschilling was awaiting sentencing, the State filed a bill of
information in case no. 15-CRM-061 alleging that Rutschilling had illegally
conveyed a drug of abuse onto the grounds of a governmental facility in violation
of R.C. 2921.36(A)(2); (G)(2), a felony of the third degree. BDoc. 5. Rutschilling
consented to being charged by the bill of information and entered a plea of guilty.
BDoc. 14. This plea was made pursuant to a negotiated plea agreement in which
Rutschilling agreed to enter a plea of guilty and the State agreed not to oppose
Community Control Sanctions including a residential sanction at the W.O.R.T.H.
Center. BDoc. 15. On May 6, 2015, the trial court held a hearing on the charge.
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Case No. 10-17-06 and 10-17-07
BDoc. 18. Rutschilling entered a plea of guilty in accord with the agreement and
the trial court accepted the plea. Id. The matter was continued for sentencing. Id.
{¶4} On May 27, 2015, a sentencing hearing was held on both cases. ADoc.
101 and BDoc. 24. In case number 14-CRM-060, the trial court sentenced
Rutschilling to a term of community control for up to three years. ADoc. 101. The
trial court informed Rutschilling that if he violated the sanctions, he could receive
“a prison term of Eleven (11) months on each count.” Id. at 7. The judgment entry
was silent as to whether the terms would be served concurrently or consecutively.
Id. In case number 15-CRM-061, the trial court sentenced Rutschilling to a term of
community control of up to three years. BDoc. 24. Rutschilling was informed that
a violation of the sanctions could result in a prison term of 30 months. Id. at 6. No
discussion was held as to whether this sentence would be concurrent or consecutive
to the others.
{¶5} On November 3, 2015, the State filed a notice of failure to comply with
community control sanctions in case number 15-CRM-061. BDoc. 37. The notice
alleged that Rutschilling had been unsuccessfully terminated from the W.O.R.T.H.
Center. Id. A hearing was held on November 18, 2015, at which Rutschilling
admitted to the violation. BDoc. 55. As a result of the violation, the trial court
sentenced him to 30 months in prison. BDoc. 60. The trial court also tolled the
community control sanctions imposed in 14-CRM-60 due to the prison term being
imposed. ADoc. 108.
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Case No. 10-17-06 and 10-17-07
{¶6} On June 14, 2016, Rutschilling filed a motion for judicial release in case
number 15-CRM-061. BDoc. 72. A hearing was held on the motion on July 20,
2016. BDoc. 85. The trial court then granted the motion for judicial release and
imposed community control sanctions for up to three years. Id. The trial court
informed Rutschilling that a violation of the sanctions could result in imposition of
the balance of his prison term. Id. No discussion about the sentences in case number
14-CRM-060 occurred at this hearing.
{¶7} On February 8, 2017, the State filed a notice of failure to comply with
community control sanctions in both case number 14-CRM-060 and 15-CRM-061.2
ADoc. 119 and BDoc. 92. The notice alleged that Rutschilling had been arrested
for OVI, had tested positive for fentanyl and marijuana, and had failed to take drug
tests when requested. Id. A hearing was held on the violations on March 22, 2017.
ADoc. 134 and BDoc. 105. Rutschilling admitted the violations and the matter was
set for disposition. Id. The disposition hearing was held on April 12, 2017. At the
hearing the trial court sentenced Rutschilling as follows.
In this case, [the decision whether to order the sentence in 15-
CRM-191 to be served consecutive or concurrent to the others is]
an academic decision, because I’m willing to at least follow the
recommendation from the defense, that’s not opposed by the
State, and impose a concurrent sentence, so the consequence,
what I consider the principles and purposes of sentencing, the
prior criminal history, the attempts at rehabilitation, the prior
prison sentence, and the judicial release, is [sic] order that 22
months in 14-CR-60, order the 30 months in 15-CR-61, those to
2
There was also a third case number 15-CRM-191 which was ordered to be served concurrently. That case
was not appealed and will not be addressed by this court.
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Case No. 10-17-06 and 10-17-07
be served consecutive to each other. And then 11 months in 15-
CRM-191 to be served concurrent with the two consecutive
sentences, so that takes it then to 52-month total sentence, with
credit for what we think today is 506 days jail time previously
served.
Apr. 12, 2017, Tr. 5-6. After a discussion with the State, the time served was
adjusted to be 529 days. Id. at 7. No other discussion regarding the sentence
imposed was held on the record.3 On May 24, 2017, Rutschilling filed notices of
appeal in 14-CRM-060 and 15-CRM-061. ADoc. 147 and BDoc. 118. The appeals
were consolidated. On appeal, Rutschilling raises the following assignments of
error.
First Assignment of Error
The reimposition [sic] of the prison term as consecutive sentence
was invalid.
Second Assignment of Error
The imposition of consecutive sentences was invalid.
Third Assignment of Error
Trial counsel provided ineffective assistance of counsel which
harmed [Rutschilling].
Violation of Judicial Release Sentence
{¶8} In the first assignment of error, Rutschilling alleges that the trial
court erred in re-imposing his sentence for judicial release consecutive to that
3
The trial court noted that there were extensive discussions held in chambers, but those discussions were not
put on the record. Tr. at 3.
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Case No. 10-17-06 and 10-17-07
for violation of the community control sanctions. This court has previously
held that judicial release sanctions and community control sanctions are not
the same. State v. Jones, 3d Dist. Mercer Nos. 10-07-26, 10-07-27, 2008-
Ohio-2117.
“The rules dealing with a violation of an original sentence of
community control (R.C. 2929.15) should not be confused with the
sections of the Revised Code regarding early judicial release (R.C.
2929.20) even though the language of R.C. 2929.20(I) contains the
term ‘community control’ in reference to the status of an offender
when granted early judicial release.” State v. Alexander, 3d Dist.
No. 14-07-45, 2008-Ohio-1485, ¶ 7, quoting State v. Mann, 3d Dist.
No. 3-03-42, 2004-Ohio-4703, ¶ 6. Under R.C. 2929.15, a
defendant’s original sentence is community control and he will
not receive a term of incarceration unless he violates the terms of
his community control, * * * whereas, when a defendant is
granted judicial release under R.C. 2929.20, he “has already
served a period of incarceration, and the remainder of that prison
sentence is suspended pending either the successful completion of
a period of community control or the defendant’s violation of a
community control sanction.” Alexander, 2008-Ohio-1485, at ¶ 7,
quoting Mann, 2004-Ohio-4703, at ¶ 8 citing R.C. 2929.20(I).
Jones, supra at ¶ 12. If a trial court grants a motion for judicial release, the offender
is placed under appropriate community control sanctions. R.C. 2929.20(I). The
trial court then reserves the right to re-impose the remainder of the prison term
originally imposed if the offender violates the sanctions. Id. “If the court [re-
imposes] the reduced sentence pursuant to this reserved right, it may do so either
concurrently with or consecutive to, any new sentence imposed upon the eligible
offender as a result of the violation that is a new offense.” Id. The trial court does
not have the authority to alter the original sentence except it may impose the
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Case No. 10-17-06 and 10-17-07
sentence consecutively to a new sentence imposed as a result of the judicial release
that was a new criminal offense. See Jones, supra; State v. Smith, 3d Dist. Union
No. 14-06-15, 2006-Ohio-5972, ¶ 13; State v. McConnell, 143 Ohio App. 3d 219,
2001-Ohio-2129, 757 N.E.2d 1167 (3d Dist.). “It is error for a trial court, after
revoking judicial release, to impose a greater or lesser sentence than the original
sentence.” State v. Thompson, 3d Dist. Crawford Nos. 3-16-01, 3-16-12, 2016-
Ohio-8401, ¶ 13.
{¶9} In this case, the original sentence was 30 months in prison. This
sentence was not ordered to be served consecutive to any sentence. Although the
violations of Rutschilling’s community control sanctions issued upon his judicial
release could potentially have constituted new criminal offenses, sentences for those
violations were not the ones that were ordered to be served consecutively. The
judicial release violation was ordered to be served consecutive to a community
control violation in an old case. R.C. 2929.20(I) does not allow the original sentence
to be altered by being served consecutive to old cases, only new offenses. Thus, the
trial court erred by ordering the sentence for the violation of the judicial release to
be served consecutive to the sentences for the violations of community control
violations in old cases.4 The first assignment of error is sustained.
4
The statute does not speak to whether a prison term imposed for a violation of community control sanctions
may be ordered to be served consecutive to the re-imposition of a prison term for a violation of judicial
release. This court does not address whether the trial court could run the sentences in 14-CRM-060
consecutive to the re-imposition of the sentence for the violation of judicial release in 15-CRM-061 as that
issue is not before us on appeal.
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Case No. 10-17-06 and 10-17-07
Imposition of Consecutive Sentences in 14-CRM-060
{¶10} Rutschilling claims in the second assignment of error that the trial
court erred in imposing consecutive sentences in 14-CRM-060.
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to [R.C. 2929.16, 2929.17, or 2929.18]
or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4). Before a trial court can impose consecutive sentences as a
result of a community control violation, it must comply with the sentencing
requirements of R.C. 2929.14(C). State v. Duncan, 12th Dist. Butler Nos. CA2015–
05–086, CA2015–06–108, 2016-Ohio-5559, 61 N.E.3d 61, ¶41-42. “When
imposing consecutive sentences, a trial court must state the required findings as part
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Case No. 10-17-06 and 10-17-07
of the sentencing hearing, and by doing so it affords notice to the offender and to
defense counsel.” State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-2177, ¶ 29, 16
N.E.3d 659. The failure to make the findings at the hearing cannot be corrected by
making them in the journal entry. Id. at ¶ 30.
{¶11} A review of the record in this case shows that the trial court did not
make any findings pursuant to R.C. 2929.14(C) at the sentencing hearing for the
violation of the community control sanctions and terms of the judicial release.
Instead the trial court merely stated that it had considered “the principles and
purposes of sentencing, the prior criminal history, the attempts at rehabilitation, the
prior prison sentence, and the judicial release, is [sic] order that 22 months in 14-
CR-60, order the 30 months in 15-CR-61, those to be served consecutive to each
other.” Apr. 12, 2017 Tr. at 5. The trial court failed to specifically address any of
the factors required by R.C 2929.14(C). While there may have been sufficient
credible evidence from which the trial court could have made the findings, it did not
do so. The statute and the holdings of the Ohio Supreme Court mandate that the
trial court make all of the enumerated findings at the sentencing hearing. R.C.
2929.14(C)(4) and Bonnell, supra. The trial court did not do so in this case. Thus,
the second assignment of error is sustained.
Ineffective Assistance of Counsel
{¶12} In the third assignment of error, Rutschilling claims he was denied the
effective assistance of counsel at the sentencing on the violations. As this court has
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found error in the sentencing, the matter will be remanded for resentencing. The
actions of counsel in the original hearing are thus moot and need not be reviewed
by this court. App.R. 12(A)(1)(c).
{¶13} Having found error in the particulars assigned and argued, the
judgments of the Court of Common Pleas of Mercer County are reversed and the
matter is remanded for further proceedings in accord with this opinion.
Judgments Reversed
And Remanded
PRESTON, P.J. and SHAW, J., concur.
/hls
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