STATE OF OHIO v. MARLO A. ANDERSON
No. 102427
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 29, 2016
[Cite as State v. Anderson, 2016-Ohio-7044.]
JOURNAL ENTRY AND OPINION; DECISION EN BANC: AFFIRMED IN PART, VACATED IN PART, AND REMANDED;
PLAINTIFF-APPELLEE
vs.
DEFENDANT-APPELLANT
BEFORE: The En Banc Court
RELEASED AND JOURNALIZED: September 29, 2016
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue
Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John Patrick Colan
Anthony Thomas Miranda
Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} There is arguably nothing more unassailable than the trial court‘s discretion to fashion final sentences. Any legislative or legal decision seen as limiting that
{¶2} The trial judge wanted to maintain personal supervision over Marlo Anderson after his release from prison for the apparent and noble purpose of ensuring Anderson would stay on a path to rehabilitation. This resulted in the dual imposition of postprison supervision by two separate entities and will result in the unnecessary fiscal burden imposed on two state agencies charged with the same task. This goal of allowing the court to set the appropriate sanctions and conditions on offenders leaving prison could have been accomplished in an authorized manner through the procedures outlined under
{¶3} Pursuant to
{¶4} Before issuing the original panel decision, in light of newer developments in the law impacting the issues as framed by Anderson, this court requested the parties to brief whether
R.C. 2929.13(A) or2929.41(A) or any other statutory provision allow for the consecutive imposition of community control sanctions, either with a prison term or without a prison term, pursuant to State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, or State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512.
The supplemental briefing was sought in accordance with State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, and because this court recognizes that sentences not authorized by law are void. State v. T.M., 8th Dist. Cuyahoga No. 101194, 2014-Ohio-5688, ¶ 25 (Stewart, J., dissenting), citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 20, and State v. Hooks, 135 Ohio App.3d 746, 750, 735 N.E.2d 523 (10th Dist.2000); State v. Ocel, 7th Dist. Jefferson No. 08 JE 22, 2009-Ohio-2633, ¶ 2; State v. Keslar, 4th Dist. Hocking No. 98CA20, 1999 Ohio App. LEXIS 5570, *17 (Nov. 17, 1999), citing State v. Bruce, 95 Ohio App.3d 169, 642 N.E.2d 12 (12th Dist.1994), and State v. Thomas, 80 Ohio App.3d 452, 609 N.E.2d 601 (3d Dist.1992). Both parties responded.
{¶5} The issue posed here is whether 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. We must answer that question in the negative. The legislature has not authorized a trial court to impose community control sanctions to be served consecutively to sanctions imposed on separate counts, except in limited but expressly delineated circumstances that are inapplicable to Anderson‘s sentence. The original panel in our Anderson appeal followed Abernathy in light of State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512,3 and, after reviewing Anderson‘s assigned errors, the panel acknowledged the overlooked decision in Barnhouse.
{¶6} In State v. Anderson, the Supreme Court of Ohio did not directly deal with the consecutive imposition of a community control sanction and a prison term. Nevertheless, State v. Anderson reaffirmed an apparently forgotten limitation to a trial court‘s authority in sentencing. In State v. Anderson, the Ohio Supreme Court unambiguously held that “‘the only sentence which a trial judge may impose is that provided for by statute * * *.‘” Id. at ¶ 12, citing State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964), see also State v. Morris, 55 Ohio St.2d 101, 112, 378 N.E.2d 708 (1978), citing Toledo Mun. Court v. State ex rel. Platter, 126 Ohio St. 103, 184 N.E. 1 (1933) (“It has long been recognized in this state that the General Assembly has the plenary power to prescribe crimes and fix penalties.“); see also Wilson v. State, 5 N.E.3d 759, 762 (Ind.2014), quoting Wilson v. State, 988 N.E.2d 1221, 1224 (Ind.2013) (Robb, C.J., dissenting) (“sentencing is a creature of the legislature“; “courts are limited to imposing sentences that are authorized by statute, rather than only
{¶7} Appellate courts had all too often flipped that proposition of law on its head and affirmed sentences under the rationale that the legislature had not specifically precluded the imposed sentence, including the panel‘s decision in Heidrick. See, e.g., State v. Anderson, 9th Dist. Summit No. 26640, 2014-Ohio-1206, ¶ 34; Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, at ¶ 12 (noting that nothing in the statute precludes the imposition of the appealed sentence, and therefore, the conviction was affirmed); see also State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-5677, ¶ 4; State v. Meredith, 4th Dist. Athens No. 02CA5, 2002-Ohio-4508, ¶ 13. Therefore, the State v. Anderson decision undermined the rationale supporting our decision in Heidrick. Accordingly, the time was ripe to question the Heidrick outcome.
{¶8} With that background and analytical framework in mind, we can now turn to the merits of the case, in which Marlo Anderson appeals the trial court‘s imposition of community control sanctions (two years of community control including an indefinite term of confinement in a community-based correctional facility (“CBCF“)) on the identity fraud count, a felony of the fifth degree, to be served consecutively to a three-year aggregate sentence of imprisonment (consecutive terms of one year on a firearm specification and two years for robbery).
{¶9} Anderson was charged in pertinent part with three felonies, abduction, robbery, and identity theft, for luring a victim into Anderson‘s car and robbing him at gunpoint. When the victim entered the car, Anderson and three accomplices took the victim‘s cell phone and bank card. One of the attackers used a Taser on the back of the victim‘s neck several times to torture the victim into divulging his PIN. The victim finally relented, and the quartet proceeded to three separate ATMs where Anderson posed as the victim to withdraw cash. When the attackers stopped at one of the ATMs, the victim managed to escape. Anderson drove by the victim‘s home in an attempt to find him.
{¶10} Anderson filed the current appeal after pleading guilty and being sentenced. Anderson first claims the trial court failed to “properly” consider the merger issue regarding the robbery and abduction charges, arguing that his state of mind, or animus, was never addressed. We can summarily dispose of his first argument. In this case, the trial court determined that the acts constituting the robbery and those constituting the abduction were committed with separate conduct. Because the acts were deemed to be be committed separately, no inquiry into the defendant‘s animus was necessary. The Ohio Supreme Court held that offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) [if] the offenses are dissimilar in import or significance -- in other words, each offense caused separate, identifiable harm [or was committed against separate victims], (2) [if] the offenses were committed separately, [or] (3) [if] the offenses were committed with separate animus or motivation. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. The merger analysis was stated in the disjunctive: any one of the factors warrants separate punishment. The trial court was not required to determine Anderson‘s animus and did not err by avoiding any discussion of Anderson‘s “state of mind.”
{¶11} Anderson also challenges the imposition of a two-year term of community
{¶12} The legislature must provide the trial court with authority to impose community control sanctions to be served consecutive to a prison term imposed on a separate felony count. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512. The first step of our analysis is to classify the community control sanctions with respect to the statutory sentencing scheme. The community control sanctions in this case include both residential and nonresidential sanctions. Unfortunately, we have to analyze those sanctions differently. The residential sanctions, as will be discussed in further detail, are sentences of imprisonment within the meaning of
{¶13} For this reason, we begin our review with a discussion of the residential sanction of CBCF and how those sanctions are impacted by the plain and ordinary language codified in
Except as provided in division (B) of this section, division (C) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently with a prison term or sentence of imprisonment for felony served in a state or federal correctional institution.
(Emphasis added.) There are only three exceptions to the concurrent service of jail or prison terms or a sentence of imprisonment: (1) for misdemeanor sentences pursuant to
{¶14} The first and third exceptions are inapplicable to the residential term imposed at a CBCF. Neither party claims that
{¶15} 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. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, at ¶ 12; State v. Peterson, 8th Dist. Cuyahoga No. 102428, 2015-Ohio-4581, ¶ 13 (acknowledging that the Barnhouse decision precludes the imposition of consecutive residential sanctions); Abernathy, 8th Dist. Cuyahoga No. 102716, 2015-Ohio-4769, ¶ 8-10, Dansby-East, 8th Dist. Cuyahoga Nos. 102656, 102657, 102658, and 102659, 2016-Ohio-202, ¶ 21. There is no definition for “sentence of imprisonment” in the Revised Code.
{¶16} It stands to follow that the imposition of a term at a CBCF is a “sentence of imprisonment.” Barnhouse.
{¶17} The only remaining question is whether any nonresidential community control sanctions pursuant to
{¶18} The only notable, and express, exception to this lack of authority to impose residential or nonresidential sanctions consecutive to a prison term on a separate count is for certain OVI offenses. See
[I]n addition to the mandatory prison term or mandatory prison term and additional prison term imposed under that division, the court also may impose upon the offender a community control sanction
or combination of community control sanctions under section 2929.16 or 2929.17 of the Revised Code, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction.
(Emphasis added.) Although another panel in this district cited
{¶19} Sections
{¶20} Further,
{¶21} Our previous decisions consistently overlooked the implications of Barnhouse, and therefore, we can no longer rely on any of those previous decisions to authorize the sentence at issue. As the state notes, courts have routinely held that community control sanctions on one count can be imposed consecutively to a prison term on another. See, e.g., State v. Kinder, 5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340; Purvis, 8th Dist. Cuyahoga No. 101608, 2015-Ohio-1149;4 Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8; State v. Leedy, 4th Dist. Meigs Nos. 13CA7 and 13CA8, 2015-Ohio-1718, ¶ 7-8, citing Heidrick at ¶ 8-9; State v. Randolph, 12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350, ¶ 6-7; State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-5677, ¶ 4. The rationale in all those cases relied on the proposition that the legislature had not prohibited the imposition of consecutive community control sanctions, and therefore, the courts concluded that the trial court then possessed the authority to impose the particular sentence. That inverted rationale was
overruled in State v. Anderson and demonstrates why we can no longer rely on our decisions in Heidrick.
{¶22} The only other analysis supporting the Heidrick line of decisions was that
{¶23} Finally, although not relevant, we note that any reliance on
Upon the conviction of or plea of guilty to a felony by a person on post-release control at the time of the commission of the felony, the court may terminate the term of post-release control, and the court may [as one of two options], * * * [i]mpose a sanction under sections 2929.15 to 2929.18 of the Revised Code for the violation that shall be served concurrently or consecutively, as specified
by the court, with any community control sanctions for the new felony.
Id.
A community control sanction continues for the period that the judge or magistrate determines and, subject to the five-year limit specified in section 2929.15 or 2929.25 of the Revised Code, may be extended. If the offender under community control absconds or otherwise leaves the jurisdiction of the court without permission from the probation officer, the probation agency, or the court to do so, or if the offender is confined in any institution for the commission of any offense, the period of community control ceases to run until the time that the offender is brought before the court for its further action.
(Emphasis added.)
{¶24} For the sake of argument, we will presume the possibility that the second sentence of
{¶25} There is an inherent flaw with that argument.
{¶26} For example,
{¶27} The Ohio Supreme Court recently provided guidance on resolving this type of seemingly contradictory, statutory language. State v. Polus, Slip Opinion No. 2016-Ohio-655. In that case, the trial court imposed a jail term on a misdemeanor offense to be served consecutively to a prison term imposed on the felony offense pursuant to
{¶28} As the Ohio Supreme Court determined, the lower courts’ interpretation -- that
{¶29} In this case, therefore, we cannot read
{¶30} Thus 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.
{¶31} In light of the foregoing, we must vacate Anderson‘s conviction as it pertains to the community control sanctions imposed on the identity fraud count based on our analysis from Abernathy
{¶32} Anderson‘s sentence on the identity theft is vacated, and the case is remanded for resentencing on that count alone. Anderson‘s conviction for robbery and abduction is otherwise affirmed.
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.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., J.,
EILEEN T. GALLAGHER, J.,
LARRY A. JONES, SR., A.J.,
KATHLEEN ANN KEOUGH, J., and
TIM McCORMACK, J., CONCUR
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY
MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION
PATRICIA ANN BLACKMON, J.,
EILEEN A. GALLAGHER, J.,
MARY EILEEN KILBANE, J., and
ANITA LASTER MAYS, J., CONCUR WITH THE SEPARATE DISSENTING OPINION
MARY J. BOYLE, J., DISSENTING:
{¶33} I respectfully dissent. Consistent with my dissenting opinion in the original panel decision, and as this court and several other districts have long held, I would answer the en banc question in the affirmative—that is, I would hold that a trial court has the discretion and the authority to impose a prison term on one felony offense and community control sanctions on a separate felony offense, and order the community control sanctions commence upon the defendant‘s release from prison.
{¶34} When choosing an appropriate sentence, trial courts must first consider
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 and to punish 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.)
{¶35} Under
{¶36} The defendant in this case, Anderson, was young—only 22 years old—at the time of sentencing. At the sentencing hearing, the trial court heard from his probation officer who informed the court that Anderson had failed several drug tests, did not comply with his outpatient drug treatment program, or verify that he had attended GED classes. Anderson‘s father and mother also spoke to the court. Anderson‘s father told the court that he spent many years of his life having substance abuse issues, and blamed himself for many of Anderson‘s problems. Anderson‘s mother informed the court that Anderson had a learning disability and said that she attempted to help Anderson attend his AA meetings. Anderson stated that being in jail for 197 days on this case was “eye-opening,” and that he learned he wanted to get his life together and be a more productive member of society.
{¶37} The following took place at Anderson‘s sentencing hearing:
THE COURT: With regard to * * * the identity fraud offense, Count 8, that is a felony of the fifth degree. I‘m going to run that consecutive to the robbery and abduction, and I‘m going to order you to be on probation for that charge. I‘m going to have you—when you‘re released from prison, you‘re going to come back and be placed in the CBCF facility for a six-month period. CBCF is a confinement facility next to the post office in downtown Cleveland. It is not a jail. It is not a prison. It is a bunk bed facility that has about 150 to 200 men where you will get drug treatment training, you will get GED schooling, you will get training for Thinking For a Change. In other words, making better decisions about yourself and you will do that in a confinement setting, but very different than prison or jail.
You will be allowed to be released from that facility after you do three months, if you have done everything properly. You will have to return there in the evening to stay overnight, but you will be back out in the community during the day to either take care of your business or take care of working or start working, but you will come back during the evening and stay there until you complete your stay. It is a maximum of six months. For many people it is three months to six months.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You need to have some of these issues addressed, and this is the proper way to do that. If you get that treatment in prison, great, but you‘re going to at least have a program where if it doesn‘t happen there, it will happen at the CBCF. You will be placed on probation for a two-year time period.
You will also be on post-release control at the same time, so I‘m not adding anything more to that. It will be part of that same sentence. I‘m sentencing you to a total of three years, one with the gun specification and two with the robbery, because your conduct that night is such that it is very serious.
I know you‘ve got issues, and I‘m trying to address those issues, but it‘s important to address the conduct, and I‘m trying to match the conduct with what I think is the appropriate sentence and to make it as minimum a sentence that I could impose that deals with the nature of your conduct.
You have a lot of family support. You‘re going to need that family support. I expect that they will continue to be with you during that time period and help you through this process.
{¶38} After reviewing what occurred at the sentencing hearing, it is clear that the trial court was attempting to appropriately punish Anderson for his conduct in committing the offenses and protect the public, while at the same time attempting to rehabilitate a 22-year-old offender so that he could become a more productive and law-abiding citizen after he served his sentence. Notably, the trial court imposed a sentence using the minimum sanctions it deemed necessary—as it was required to do. The majority‘s en banc decision, however, essentially removes a trial court‘s sentencing discretion, which is counterintuitive and against the overriding purposes and principles of felony sentencing under
{¶39} The en banc majority asserts that the trial court could accomplish its “noble purpose of ensuring Anderson would stay on a path to rehabilitation” if the common pleas court and the department of corrections entered into an agreement under the
A court of common pleas may cooperate with the department of rehabilitation and correction in the supervision of offenders who return to the court‘s territorial jurisdiction after serving a prison term. 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.
{¶40} I disagree that the trial court could accomplish its “noble” goal if the court and the department of corrections entered into an agreement pursuant to
{¶41} In State v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, the certified intradistrict conflict case, this court was faced with nearly an identical set of facts. The trial court sentenced Heidrick to five years in prison on one felony count and one year of community control sanctions on another felony count, and ordered “community control to commence upon release from prison.” Id. at ¶ 3. The trial court further ordered, among other things, that as part of Heidrick‘s community control sanctions, he be screened for placement in the Northwest Community Based Correctional Facility for up to six months.
{¶42} We explained in Heidrick that
{¶43} This court has recently reaffirmed the same holding—that a trial court has the discretion under
Martin at ¶ 8-9; Carswell at ¶ 8.
{¶44} Other districts have also held that a trial court may impose a prison term on one offense and community control sanctions on another offense and order the community control sanctions to commence when the offender is released from prison. See State v. Leedy, 4th Dist. Meigs No. 13CA7 and 13CA8, 2015-Ohio-1718; State v. Meredith, 4th Dist. Athens No. 02CA5, 2002-Ohio-4508; State v. Kinder, 5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340; State v. O‘Connor, 5th Dist. Delaware No. 04CAA04-028, 2004-Ohio-6752; State v. Boylen, 5th Dist. Tuscarawas No. 2012AP060039, 2012-Ohio-5503; State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-5677; and Randolph.
{¶45} It is my view that the holding in State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 800 N.E.2d 874, is limited to prohibiting trial courts from “impos[ing] consecutive jail sentences.” Id. at the syllabus. Under Ohio‘s sentencing statutes, trial courts can only impose jail sentences for misdemeanor offenses or as part of a community control sanction.
{¶46} It is also my view that State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, is not applicable to the issues raised in this case. The Ohio Supreme Court held in Anderson that “[a] trial court cannot impose a prison term and a no-contact order [which is a community control sanction] for the same felony offense.” (Emphasis added.) Id. at ¶ 1. Thus, it is my view that the en banc majority applies the dicta in Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, too broadly.
{¶47} I further believe that the holding in the majority en banc decision, vacating Anderson‘s sentence for the identity fraud count, essentially removes the trial court‘s sentencing discretion. When sentencing Anderson for identity fraud, the trial court had the option of either sentencing him to prison or community control sanctions. If the en banc majority‘s interpretation is correct, then any community control sanctions that the trial court imposed would have to be served concurrent to the prison term. But if Anderson is in prison, he would not be able to serve his community control sanction rendering both the purposes and principles of sentencing under
{¶48} Additionally, the majority en banc decision‘s approach eliminates a trial court‘s discretion to impose community control sanctions on a separate felony count but would leave intact the trial court‘s authority to impose a prison term on that same count and order the prison term consecutive to the other felony counts (provided the trial court complies with the consecutive sentence findings under
{¶49} Moreover, it is axiomatic that an offender cannot serve a sentence of community control sanctions while in prison. Thus, community control sanctions must begin when an offender is released from prison. Because of this, it is my view that a trial court need not even use the words “consecutive” or “concurrent” when sentencing an offender to prison on one felony offense and community control sanctions on a separate felony offense because community control sanctions cannot commence until the offender is released from prison.
{¶50} I fear that the holding in the en banc majority decision will have far reaching effects in removing a trial court‘s discretion when sentencing a defendant. For example, under the en banc majority‘s decision, trial court judges will no longer be able to sentence defendants to prison for an offense in one case and to community control sanctions for an offense in a separate case, as the trial court judge in Molina did. See id., 8th Dist. Cuyahoga No. 83166, 2004-Ohio-1110 (defendant was charged with drug trafficking in January 2001; while that case was still pending, defendant was charged with drug trafficking in another case; trial court sentenced defendant to six months in prison for the first case and “consecutive four years” of community control sanctions for the second case). Nor will a trial court judge be able to sentence a defendant to community control sanctions for an offense and order that it commence after the defendant completes a prison sentence for a separate case in another county, or state for that matter. There are endless scenarios where trial court judges will now lose their ability to sentence defendants within their sound discretion—because although the sentencing statutes cannot address every possible situation (and thus, are silent on the matter), it simply would not make sense to interpret the law any other way.
{¶51} Thus, based on well-established law in this district and others, I would answer the en banc question (and the issue raised sua sponte by this court) in the affirmative, and hold that a trial court has the authority to impose a prison term on one felony offense and community control sanctions on a separate felony offense, and order the community control sanctions commence upon the defendant‘s release from prison.