STATE OF OHIO, PLAINTIFF-APPELLEE vs. MICHAEL D. HATCHER, DEFENDANT-APPELLANT
No. 104780
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 12, 2017
[Cite as State v. Hatcher, 2017-Ohio-109.]
BEFORE: E.A. Gallagher, P.J., Boyle, J., and Blackmon, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: VACATED; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595831-A; RELEASED AND JOURNALIZED: January 12, 2017
Michael D. Hatcher, pro se
Inmate No. #673-709
Lake Erie Correctional Institution
501 Thompson Road
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Michael Hatcher appeals the denial of two motions to vacate a void sentence in the Cuyahoga County Court of Common Pleas. For the following reasons, we vacate.
Factual and Procedural Background
{¶2} On September 15, 2015, Hatcher plead guilty to grand theft. At sentencing, the trial court imposed one year of community control sanctions including an indefinite term of confinement in either a community-based correctional facility (“CBCF“) or the county jail. The sentence included the following proviso:
This sentence is to begin upon his release from Lorain Correctional Institution in the Lake County Case: 15-CR-000206. Defendant is to be assessed for CBCF upon his release from Lorain Correctional Institution. The one year supervision does not begin until he is returned from Lorain Correctional Institution to begin this sentence.
{¶3} On April 22, 2016, Hatcher filed a motion to withdraw his guilty plea and/or vacate a void sentence, arguing that the trial court failed to make the required findings under
{¶5} This court granted a motion for a delayed appeal challenging the denial of the above motions.
Law and Analysis
I. The Imposition of Community Control Sanctions Consecutive to a Prison Term
{¶6} In his sole assignment of error, Hatcher argues that trial court erred in imposing community control sanctions to be served consecutively to a prison term.
{¶7} In Anderson, this en banc court held that “[b]ecause 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, the trial court was without authority to impose the same.” Id. at ¶ 31. This court concluded that such a sentence was void. Id. at ¶ 31.
{¶8} By the plain language of the trial court‘s sentencing entry quoted above the trial court attempted to order community control sanctions to be served consecutive to, or
{¶9} Although the state argues that Hatcher‘s argument is precluded by the doctrine of res judicata, it is well established that a void sentence “is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or collateral attack.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus.
{¶10} We find Hatcher‘s sentence to be void.2
{¶11} Hatcher‘s sole assignment of error is sustained.
{¶12} Hatcher‘s sentence is vacated.
This cause is vacated and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., CONCURS;
MARY J. BOYLE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
MARY J. BOYLE, J., DISSENTING WITH SEPARATE OPINION
{¶13} Respectfully, I dissent and would affirm the trial court.
{¶14}