State v. HornerState v. Horner
{¶1} Appellant Marissa C. Horner appeals the sentence imposed in two underlying cases, Cuyahoga C.P. Nos. CR-15-593413-B and CR-15-594917-B. Upon review, we affirm the maximum prison sentence imposed in case No. CR-15-594917-B, we vacate the imposition of conseсutive sentences and the sentence imposed in case No. CR-15-593413-B, and we remand the matter to the trial court for resentencing in case No. CR-15-593413-B and modification of the judgment entry in case No. CR-15-594917-B.
{¶2} In case No. CR-15-593413-B, appellant pleaded guilty to trafficking, аmended to a fourth-degree felony, with forfeiture specifications. All remaining counts were nolled.
{¶3} In case No. CR-15-594917-B, appellant pleaded guilty to compelling prostitution, a third-degree felony, amended to include the names of the victims. All remaining counts were nolled.
{¶4} At sentencing, in case No. CR-15-594917-B, the court imposed a maximum prison sentence of 36 months in prison. In case No. CR-15-593413-B, the court imposed community control sanctions for three years. As a condition of the community control, if found eligible, appellant was ordered into the community based correctional facility program. The court ordered the sentences to be served consecutively, with the community control sanctions to commence upon the completion of thе prison term. The court also imposed five years of mandatory postrelease control.
{¶6} First, we address the sentence imposed in case No. CR-15-593413-B. Appellant claims the court failed to inform her of the prison term she could receive if she violated her community control sanctions. A rеview of the record reflects otherwise. At sentencing, the trial court notified appellant that if she failed to comply with her community control sanctions, the court could sentence her to a prison term of up to 18 months. Further, insofar as apрellant complains the journal entry contains a flawed reference to “two years community control sanctions,” rather than the three-year sentence that was actually imposed and as is also reflected in the entry, this error would be subject to a nunc pro tunc correction. Nonetheless, as discussed below, we must vacate the sentence.
{¶7} Appellant also claims that the trial court erred in imposing consecutive sentences, challenging the court‘s findings. Because the trial court lacked authority to impose consecutive sentences, we need not even address its findings.
{¶8} Although a trial court has discretion in imposing a sentence, the sentence imposed must be within the boundaries of the legislative grant of authority. State v. Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044, ¶ 1. As an intermediаte appellate court, we are bound to apply the statutory language as written and must adhere to the clear precedent of the Ohio Supreme Court. Id. In this case, the trial court imposed a sentence beyond that which it was authorized to impose.
{¶9} Trial courts may only impose sentences that are expressly authorized by statute, as opposed to sentences that are not prohibited by statute. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 13. Moreover, trial courts are duty-bound to apply sentencing laws as they arе written and have no inherent power to create sentences. Id. at ¶ 10. As a general rule, pursuant to
{¶10} At issue here is whether a trial court may impose consecutive service of community control sanctions to a prison term. Recently, in Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044, the en banc majority of this court answered the question in the negative. In that decision, the majority held: “Because 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, [a] trial court [is] without authority to impose the same.” Id. at ¶ 31.
{¶11} As discussed in Anderson, “[a] term of residentiаl sanctions cannot be imposed consecutive to a prison term because as the Ohio Supreme Court recognized,
{¶12} Because the trial court was without authority to impose community control sanctions consecutive to a prison sentence, the sentence imposed in case No. CR-15-593413-B is void and must be vacated.1
{¶13} Next, we address the sentence imposed in case No. CR-15-594917-B. Appellant challenges the trial court‘s impositiоn of the maximum sentence. A trial court is not required to make any factual findings before imposing a maximum sentence. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 14. Therefore, we review the trial court‘s sentence to determine if the sentence is otherwise contrary to law.
{¶14} Here, the trial court imposed a sеntence within the statutory range, and the journal entry states that “[t]he court considered all required factors of the law.” At sentencing, the trial court stated it had reviewed the presentence investigation report, the TASC assessment report, and a lettеr from appellant. The court indicated it heard the testimony adduced at the trial of appellant‘s codefendant. The court heard from one of the victims at appellant‘s sentencing hearing. Defense counsel presented the cоurt with mitigating evidence, and appellant personally addressed the court. Accordingly, because the sentence was within the permissible statutory range and the trial court considered the required factors of law, appellant‘s maximum sentence is not contrary to law.
{¶15} Upon review, we affirm the 36-month maximum sentence imposed in case No. CR-15-594917-B; we vacate the imposition of consecutive sentences and the sentence imposed in case No. CR-15-593413-B; and we remand the matter to the trial сourt for resentencing in case No. CR-15-593413-B and modification of the judgment entry in case No. CR-15-594917-B.
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. The defеndant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, J., CONCURS;
MARY J. BOYLE, P.J., DISSENTS WITH SEPARATE OPINION
MARY J. BOYLE, P.J., DISSENTING:
{¶17} I respectfully dissent. I disagree with the majority that the “trial court imposed a sentence beyond that which it was authorized to impose.” It is my view that this case is distinguishable from our recent en banc decision, State v. Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044. In Anderson, the majority en banc decision held that a trial court could not sentence an offender to prison for one felony offense and community control sanctions for a separate felony offense — in the same case — and
{¶18} As I emphasized in my dissent in Anderson, it is my view that State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, and State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, do not apply to the facts in our en banc Anderson decision, nor do they apply to the facts in the present case. In Barnhouse, the Ohio Supreme Court explicitly addressed only one question, stating at the outset of its opinion: “[t]he issue presented in this case is whether a trial court may impose consecutive jail sentences under
{¶19} Likewise, the Ohio Supreme Court‘s Anderson decision only addressed the quеstion: “If a defendant is sentenced to prison for a term of incarceration, does the trial court have authority to issue against the defendant, a ‘no contact’ order with the victim?” Id. at ¶ 1. The court answered that question “in the negative” as well, holding that “[a] trial court cannot impose a prison term and a no-contact order for the same felony
{¶20} The facts in the present case are directly analogous to the facts in State v. Molina, 8th Dist. Cuyahoga No. 83166, 2004-Ohio-1110, where this court upheld the trial court‘s imposition of a prison term for a felony offense in one case and community control sanctions for a felony offense in a separate case, which were to commence upon the defendant‘s releаse from prison from his sentence in the first case.2 See id.
{¶21} The majority now wants to remove a sentencing judge‘s discretion when sentencing a defendant for felony convictions in two separate cases. Again, as I stated in my dissent in our en banc majority decision, the majority‘s interpretation of Barnhouse and the Supreme Court‘s Anderson makes no sense in light of
{¶22} Thus, it is my view that the trial court in this case was fully within its power to order defendant-appellant, Marissa Horner, to begin serving her sentence in the second case once she served her prison sentencе in the first case, i.e., the trial court could order Horner to begin serving her community control sanctions for the second case once she was released from prison in the first case.
{¶23} I would therefore affirm the trial court‘s sentence in its entirety: 36-months in рrison for Cuyahoga C.P. No. CR-15-594917-B, and three years of community control sanctions for Cuyahoga C.P. No. 15-593413-B, to commence upon Horner‘s release from prison in Cuyahoga C.P. No. 15-594917-B.