State v. Hartman

[Cite as State v. Hartman, 2012-Ohio-874.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-10-11
v.
ROBERT J. HARTMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR-09-12-186
Judgment Reversed and Cause Remanded
Date of Decision: March 5, 2012
APPEARANCES:
Todd D. Wolfrum for Appellant
Peter R. Seibel for Appellee
Case No. 15-10-11
ROGERS, J.
{¶1} Defendant-Appellant, Robert Hartman (“Hartman”), appeals the
judgment of the Court of Common Pleas of Van Wert County, convicting him of
five counts of retaliation and sentencing him to twenty years in prison and to
community control. Finding that the sentence was contrary to law, we reverse the
judgment of the trial court.
{¶2} On December 17, 2009, the Van Wert County Grand Jury indicted
Hartman on six counts of retaliation in violation of R.C. 2921.05(A), felonies of
the third degree. At his arraignment, Hartman pled not guilty to the charges
contained in the indictment and a jury trial was scheduled. On August 23, 2010, a
change of plea and sentencing hearing was held. Hartman entered a guilty plea to
five counts of retaliation as contained in the indictment; the sixth count was
dismissed. The judgment entry of plea and sentence was filed September 7, 2010,
which read in pertinent part:
It is therefore [o]rdered that the Defendant is hereby sentenced
as follows:
Count I: Four years incarceration
Count II: Four years incarceration
Count III: Four years incarceration
Count IV: Four years incarceration
Count V: Four years incarceration
The sentence of four years as to Count I is imposed in the
custody of the Ohio Department of Rehabilitation and
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Correction; the sentences for Counts II, III, IV, and V totaling
sixteen years are hereby [r]eserved. All sentences are to be
served consecutively for an aggregate term of incarceration of
twenty years with sixteen years being reserved.
As to the reserved sentence the Defendant did execute the
Community Control Agreement and Order and was advised
[that] a condition of his [c]ommunity control is that while he is
incarcerated * * * he shall not commit any criminal offenses and
shall have no tickets, write-ups, excluding minor infractions. * *
* The Defendant was advised that if he violated the [c]ommunity
[c]ontrol he could be returned, his community control revoked,
and the reserved sixteen years added to his current sentence.
Docket No. 23.
{¶3} It is from this judgment Hartman appeals, asserting the following as
error for our review.
Assignment of Error No. I
IN VIOLATION OF THE OHIO FELONY SENTENCING
GUIDELINES, THE COURT HEREIN SENTENCED
DEFENDANT TO BOTH PRISON AND COMMUNITY
CONTROL.
{¶4} In his sole assignment of error, Hartman argues that the Ohio felony
sentencing guidelines do not permit a trial court to impose both a prison term and
community control, citing State v. Gardner, 3d Dist. No. 14-99-24 (Dec. 1, 1999).
We agree.
{¶5} An appellate court must conduct a meaningful review of the trial
court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-
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1181. A meaningful review means “that an appellate court hearing an appeal of a
felony sentence may modify or vacate the sentence and remand the matter to the
trial court for re-sentencing if the court clearly and convincingly finds that the
record does not support the sentence or that the sentence is otherwise contrary to
law.” Daughenbaugh at ¶ 8, citing Carter at ¶ 44; R.C. 2953.08(G).
{¶6} In 1996, new sentencing statutes contained in Am.Sub.S.B. No. 2
(“S.B. 2”) took effect, which inter alia, prohibit a trial court from imposing both a
prison sentence and community control sanctions on the same offense. State v.
Vlad, 153 Ohio App.3d 74, 78, 2003-Ohio-2930 (7th Dist.); State v. Hoy, 3d Dist.
Nos. 14-04-13, 14-04-14, 2005-Ohio-1093, ¶ 18. As we have explained:
[p]rior to S.B. 2, it was a regular practice in felony sentencing to
impose a prison sentence and then suspend the sentence and
grant probation with specific terms and conditions. That option
was removed by the felony sentencing statutes adopted as part of
S.B. 2. Hoy.
{¶7} This district has determined that “there is no provision in the
sentencing statute which permits a court to suspend a prison term or make
community control a condition of a suspended prison term.” State v. Riley, 3d
Dist. No. 14-98-38 (Nov. 12, 1998). Rather, current felony sentencing statutes,
contained primarily in R.C. 2929.11 to 2929.19, require trial courts to impose
either a prison term or community control sanctions on each count. State v.
Williams, 3d Dist. No. 5-10-02, 2011-Ohio-995, ¶ 17, citing Hoy. Pursuant to
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R.C. 2929.19(B), community control sanctions and prison terms are mutually
exclusive and cannot be imposed at the same time on the same count of
conviction. State v. Randolph, 12th Dist. No. CA2003-10-262, 2004-Ohio-3350, ¶
9. Because community control sanctions are directly imposed and do not follow
as a consequence of a suspended prison sentence, trial courts must decide which
sentence is most appropriate and impose whichever option is deemed to be
necessary. Vlad at ¶ 16.
{¶8} In the case sub judice, the trial court explicitly sentenced Hartman to
four years’ incarceration on each of the five counts of retaliation, to be served
consecutively for a total of twenty years’ incarceration. Docket No. 23. It then
“reserved” sixteen years’ incarceration on counts II through V and imposed
community control sanctions for an undisclosed period. Id. While the trial court’s
intention may have been to impose community control on counts II through V, its
procedure was flawed. It is clear that Hartman’s sentence does not comport with
the felony sentencing statutes in place since 1996, or with this Court’s
jurisprudence, as the trial court imposed both prison terms and community control
on each of counts II through V. Hartman’s sentence on those counts is therefore
clearly and convincingly contrary to law.
{¶9} Accordingly, we sustain Appellant’s assignment of error. Although
we find nothing to prevent a trial court from imposing a prison sentence on one
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count and community control on another, we find it necessary to reverse the entire
sentence in order that the trial court may clarify its intentions.
{¶10} Having found error prejudicial to Appellant herein, in the particular
assigned and argued, we reverse and remand to the trial court for proceedings
consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, J., concurs.
SHAW, P.J., concurs in Judgment Only.
/jlr
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