State v. Falke

[Cite as State v. Falke, 2013-Ohio-4685.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13 CAA 03 0020
BOBBY J. FALKE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 12-CR-I-11-0442
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN JOHN R. CORNELY
Prosecuting Attorney 21 Middle Street
ERIC C. PENKAL P.O. Box 248
Assistant Prosecuting Attorney Galena, Ohio 43021
140 N. Sandusky Street 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 13 CAA 03 0020 2
Hoffman, P.J.
{¶1} Defendant-appellant Bobby J. Falke appeals the February 25, 2013
sentence entered by the Delaware County Court of Common Pleas. Plaintiff-appellee is
the state of Ohio.
PROCEDURAL HISTORY1
{¶2} On November 15, 2012, the Delaware County Grand Jury returned a three
count indictment against Appellant, charging him with receiving stolen property, in
violation of R.C. 2913.51; burglary, in violation of R.C. 2911.12(A)(2); and theft, in
violation of R.C. 2913.02(A)(1).
{¶3} On January 22, 2013, Appellant entered a plea of guilty to burglary, in
violation of R.C. 2911.12(A)(3), a lesser included charge to the burglary count charged
in the indictment. The state dismissed the remaining counts.
{¶4} On February 25, 2013, the trial court sentenced Appellant to thirty months
in prison to run consecutive to Licking County Case No. 09 CR 330.
{¶5} In Licking County Case No. 09 CR 330, the Licking County Court of
Common Pleas sentenced Appellant to three years of community control on December
4, 2009. The court informed Appellant if he violated the terms of his community control,
he would be sentenced to a term of three years in the state penitentiary.
{¶6} In Licking Case No. 09CR330, the state filed a motion to revoke
Appellant’s community control on March 21, 2013. On May 6, 2013, the trial court
revoked Appellant’s community control and ordered Appellant serve a stated prison
term of three years at the Orient Reception Center. The court ordered the sentence run
1
A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Delaware County, Case No. 13 CAA 03 0020 3
consecutively with the sentence imposed herein and in Franklin County Common Pleas
Court Case No. 08CR5593.
{¶7} Here, Appellant appeals his February 25, 2013 sentence in the Delaware
County Court of Common Pleas, assigning as error:
{¶8} “I. THE SENTENCE IN THIS CASE IS CONTRARY TO LAW AS THE
TRIAL COURT LACKED THE ABILITY TO ORDER THE PRISON SENTENCE TO
RUN CONSECUTIVE TO ANY POSSIBLE FUTURE PRISON SENTENCE IMPOSED
BY LICKING COUNTY, OHIO COMMON PLEAS COURT FOR APPELLANT’S
VIOLATION OF COMMUNITY CONTROL SANCTIONS PREVIOUSLY IMPOSED BY
THAT COURT.”
I.
{¶9} Previously, in State v. Malcolm, Licking App. No. 03CA09, 03CA10, 2003-
Ohio-5629, this Court held,
{¶10} "Appellant maintains the trial court erred and/or abused its discretion in
sentencing appellant. Specifically, appellant challenges the trial court's imposing the
sentence in 02–CR–00399 consecutive to the sentences yet to be announced in 94–
CR–00404 and 95–CR–00065. Appellant notes, at the time of sentencing on the felony
fleeing charge, the trial court had neither revoked appellant's probation or sentenced
appellant on the previous cases. Appellant argues the trial court could not have known
at the time it sentenced appellant on felony fleeing, if probation would be revoked, nor
what sentences would be imposed in the prior cases, if any.
{¶11} "Appellant relies upon State v. Watson (1992), 76 Ohio App.3d 258, 601
N.E.2d 230, asserting a court cannot sentence a defendant to a term which will run
Delaware County, Case No. 13 CAA 03 0020 4
consecutive to a sentence which will be imposed at some future time. The Twelfth
District held, ‘A trial court may not enter a sentence to be served consecutively with
sentences that are to be imposed in futuro. State v. White (1985), 18 Ohio St.3d 340, 18
OBR 381, 481 N.E.2d 596.’
{¶12} "In State v. White, supra, the Ohio Supreme Court stated:
{¶13} “'Appellant also raises the issue on appeal that the judgment of the
Delaware County trial court exceeded its jurisdiction in that it required sentences
imposed by the Delaware County court to be served consecutively with sentences in the
Clermont County court, which had not yet been imposed. Appellant asserts that a trial
court may only order a sentence consecutive to other sentences already imposed in
other counties* * *
{¶14} “' * * *this court is persuaded that the grant of discretion to a trial court
concerning the imposition of a consecutive sentence is based upon the premise that the
other sentence is either one being imposed by the trial court at that time or is a
sentence previously imposed, even if by another court, and is not a sentence in futuro.
{¶15} “' * * * When a trial court imposes a sentence and orders it to be served
consecutively with any future sentence to be imposed, it appears that such a sentence
interferes with the discretion granted the second trial judge to fashion an appropriate
sentence or sentences pursuant to the provisions of the Revised Code. The second trial
judge must have discretion pursuant to R.C. 2929.41(A) and (B) to fashion the sentence
to be imposed as a result of the conviction in his trial court. The sentences imposed by
the Delaware County court in this case have taken away the statutory discretion granted
the judge in the Clermont County court. It appears, therefore, that the Delaware County
Delaware County, Case No. 13 CAA 03 0020 5
court has exceeded the authority granted it by the General Assembly by ordering its
sentence to run consecutively with a sentence that had not yet been imposed by the
Clermont County court.'
{¶16} "In the case sub judice, Judge Spahr sentenced appellant regarding the
felony fleeing charge, and ran the sentence consecutive to the sentences imposed in
94–CR–00404 and 95–CR–00065, which were addressed one day following Judge
Spahr's ruling.
{¶17} "Appellant's probation violation hearing and the criminal charge of felony
fleeing are separate and distinct matters. The probation violation finding is not a second
penalty for a new offense, but rather involves reimposition of the original sentence. As
appellant had previously been sentenced in both 94–CR–00404 and 95–CR–00065, the
sentences were not in futuro but rather sentences now being reimposed due to the
revocation of appellant's probation. Accordingly, we find appellant's reliance on Watson
and White unpersuasive."
{¶18} In Malcolm, above, Appellant had previously began serving his prison
sentence, was released on probation, and then his sentence was then reimposed due to
revocation of his probation. The case herein is distinguishable from the procedural
scenario presented in Malcolm. Here, Appellant was sentenced to three years of
community control sanctions in Licking Co. Case No. 09 CR 330. The trial court
informed Appellant if he violated the terms and conditions of his community control
sanction he would be sentenced to a term of three years in the state penitentiary. We
find the warning of a possible prison sentence for a future community control violation is
not a sentence already imposed, but a sentence to be imposed in the future. The
Delaware County, Case No. 13 CAA 03 0020 6
Licking County Court of Common Pleas had yet to impose Appellant's sentence for
violating the terms of his community control. Accordingly, we find the procedural posture
presented in this case distinguishable from those presented to us in Malcolm.
{¶19} The Tenth District held in State v. Alexander, Franklin App. No. 04AP-942,
2005-Ohio-3564,
{¶20} "Defendant contends that the trial court erred when it ordered the
sentence to be served consecutively to any future sentence imposed by the federal
court resulting from the probation violation without specifically finding the factors
enumerated in R.C. 2929.14(E)(4)
{¶21} "The state properly concedes that the trial court was without authority to
order the sentence imposed herein to be served consecutively to a sentence not yet
imposed by the federal court. The essence of the trial court's sentence is that if
sometime in the future the federal court imposes a sentence of imprisonment upon
defendant based upon her probation violation, the sentence imposed in the instant case
would run consecutively to that sentence.
{¶22} “At the time of the offense, R.C. 2929.41(A) provided: 'Except as provided
in * * * division (E) of section 2929.14 * * * of the Revised Code, a sentence of
imprisonment shall be served concurrently with any other sentence of imprisonment
imposed by a court of this state, another state, or the United States.' R.C.
2929.14(E)(4) affords a trial court discretion to order consecutive sentences by
providing that '[i]f 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.' In State v. White (1985), 18 Ohio St.3d 340, 18 OBR 381, 481 N.E.2d
Delaware County, Case No. 13 CAA 03 0020 7
596, the Ohio Supreme Court discussed the nature of the trial court's discretion in
imposing consecutive sentences, stating, '[T]his court is persuaded that the grant of
discretion to a trial court concerning the imposition of a consecutive sentence is based
upon the premise that the other sentence is either one being imposed by the trial court
at that time or is a sentence previously imposed, even if by another court, and is not a
sentence in futuro.' Id. at 342, 18 OBR 381, 481 N.E.2d 596. The court further stated
that ‘[w]hen a trial court imposes a sentence and orders it to be served consecutively
with any future sentence to be imposed, * * * such a sentence interferes with the
discretion granted the second trial judge to fashion an appropriate sentence or
sentences.’ Id. at 342–343, 18 OBR 381, 481 N.E.2d 596. In other words, subsequent
trial courts must be afforded the same discretion as the initial trial court to fashion a
sentence as a result of a conviction before it. Id. at 343, 18 OBR 381, 481 N.E.2d 596.
Here, pursuant to White, the trial court exceeded the authority granted to it by statute by
ordering defendant's sentence to run consecutively with a sentence that is yet to be
imposed by the federal court."
{¶23} The Tenth District recently held in State v. Livesay, Franklin App. No.
12AP-181, 2012-Ohio-5039,
{¶24} "Defendant admits R.C. 2929.15(B)(1)(c) authorized the trial court to
impose a prison term and further acknowledges the trial court did not exceed the 17–
month prison term specified in the notice the court gave defendant at the time it
sentenced him in 2011. Relying on State v. White, 18 Ohio St.3d 340 (1985), defendant
nonetheless asserts the trial court erred in imposing a sentence for defendant's violation
of community control to be served consecutively to a case that did not exist at the time
Delaware County, Case No. 13 CAA 03 0020 8
of defendant's February 17, 2011 sentencing. In discussing consecutive sentences,
White stated 'this court is persuaded that the grant of discretion to a trial court
concerning the imposition of a consecutive sentence is based upon the premise that the
other sentence is either one being imposed by the trial court at that time or is a
sentence previously imposed, even if by another court, and is not a sentence in futuro.'
Id. at 342.
{¶25} "The trial court did not order defendant's 13–month sentence to be served
consecutively to a non-existing sentence; the Delaware County sentence preceded
imposition of the Franklin County 13–month sentence. Although defendant was advised
at his February 17, 2011 sentencing hearing of his potential 17–month sentence were
he to violate the terms of his community control, those months, as the parties seem to
agree, were not imposed until defendant violated the terms of his community control, at
which time the Delaware County conviction had resulted in the 18–month sentence
defendant was serving in another correctional institution. Indeed, defendant
acknowledges no Ohio court has applied White in the manner he suggests."
Delaware County, Case No. 13 CAA 03 0020 9
{¶26} In accordance with White, Alexander and Livesay, Appellant's sentence in
the Delaware County Court of Common Pleas is reversed, and the matter remanded to
the trial court for further proceedings in accordance with the law and this opinion.
By: Hoffman, P.J.
Delaney, J. concur,
Wise, J. dissents
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY
Delaware County, Case No. 13 CAA 03 0020 10
Wise, J., dissenting
(¶27) I respectfully dissent from the majority decision in this matter. I find the
situation in Malcolm is not distinguishable. I find Malcolm stands for the basic
proposition that a sentence “reimposed” due to revocation of a defendant’s probation is
not considered an in futuro sentence. See Malcolm at ¶24. I find that proposition is
applicable even if, as here, the original sentence in the earlier case consisted of an
order of community control. Moreover, R.C. 2929.01(E) categorizes community control
as a “sanction,” not as a form of deferred sentencing.
(¶28) Accordingly, I conclude the decision reached by the trial court in the case
sub judice was within the bounds of its sentencing discretion.
________________________________
HON. JOHN W. WISE
Delaware County, Case No. 13 CAA 03 0020 11
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BOBBY J. FALKE :
:
Defendant-Appellant : Case No. 13 CAA 03 0020
For the reason stated in our accompanying Opinion, Appellant's sentence in the
Delaware County Court of Common Pleas is reversed and the matter remanded to the
trial court for further proceedings in accordance with the law and this opinion. Costs to
the state.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY