STATE OF OHIO v. DEANE PETERSON
No. 102428
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 5, 2015
[Cite as State v. Peterson, 2015-Ohio-4581.]
JOURNAL ENTRY AND OPINION
AFFIRMED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-586279-A
BEFORE: Boyle, J., Celebrezze, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 5, 2015
Thomas A. Rein
700 W. St. Clair Avenue
Suite 212
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Lon‘Cherie’ D. Billingsley
Brett Hammond
Assistant County Prosecutors
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Deane Peterson, appeals his sentence, raising the following single assignment of error:
The trial court erred by ordering appellant to serve a consecutive sentence without making the appropriate findings required by
R.C. 2929.14 and H.B. 86.
{¶2} Finding no merit to the appeal, we affirm but remand for correction.
Procedural History and Facts
{¶3} In November 2014, Peterson pleaded guilty to an amended indictment on a single count of robbery, a violation of
{¶4} After hearing from the prosecutor, defense counsel, and Peterson, the trial court ultimately concluded that Peterson should be afforded the opportunity to get help for his drug problem. Instead of imposing a prison term, the trial court imposed two years of community control sanctions, sentencing Peterson to 180 days in local incarceration with five days jail-time credit followed by six months in a community-based correctional facility. The trial court further informed Peterson that if he violated the terms and conditions of his community control, which included among other things random drug tests, the trial court may impose more restrictive sanctions.
Application of R.C. 2929.14(C)(4)
to Imposition of Community Control Sanctions
{¶6} In his sole assignment of error, Peterson argues that the trial court lacked the authority to order him to serve consecutive time when it failed to comply with
{¶7}
{¶8} Peterson cites to this court‘s decision in State v. Purvis, 8th Dist. Cuyahoga No. 101608, 2015-Ohio-1149, in support of his claim that the trial court had to make findings under
{¶9} Accordingly, we find no merit to Peterson‘s claim that the trial court had to make findings under
Application of Barnhouse and Anderson
{¶10} Peterson further argues that the Ohio Supreme Court‘s decisions in 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, support his claim that the imposition of six months in jail, followed by six months in a community-based correctional facility, are not authorized under the law. Specifically, he argues that both are terms of imprisonment and are subject to the general rule that “a sentence of imprisonment shall be served concurrently with any other * * * sentence of imprisonment.”
{¶12} In Barnhouse, the defendant pleaded guilty to two counts of nonsupport of a dependent. In July 1999, the trial court imposed a one-year suspended prison term and “up to five years of community control.” Id. at ¶ 2. One year later, the defendant was indicted on numerous counts of nonsupport of dependents and ultimately pleaded no contest to two counts. Upon finding defendant guilty of the two violations, the trial court again imposed a sentence of “up to five years of community control.” Id. at ¶ 3. Thereafter, the defendant violated multiple conditions of his community control and the trial court subsequently sentenced him to serve two six-month jail terms pursuant to
{¶13} The Ohio Supreme Court ultimately concluded that the trial court lacked the authority to order the jail sentences consecutive because the presumption of concurrent sentences as stated in
{¶14} We find Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, distinguishable from the instant case for a simple reason: this case involves a singular sentence — not multiple sentences. The presumption of concurrent sentences contained
{¶15} A “community control sanction” is defined by
If in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code.
{¶16} Under
{¶17} In this case, the crucial issue is not whether a jail sentence or a sentence to a community-based correctional facility is a sentence of imprisonment. According to Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, and its reliance of
{¶18} For the same reason, we find no basis to conclude that Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, supports Peterson‘s claim that the sentence cannot stand. In Anderson, the Ohio Supreme Court reiterated the longstanding rule that “‘the only sentence which a trial judge may impose is that provided for by statute * * *.‘” Id. at ¶ 12, quoting 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). As to the ultimate issue of whether a trial court could impose both a prison term and a community controlled sanction for the same offense, the court held that, “absent an express
{¶19} Having already found that the sentence imposed is expressly authorized by statute, we find that the trial court‘s actions in this case is consistent with the holding in Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512.
{¶20} Accordingly, we find no merit to Peterson‘s sole assignment of error and overrule it.
{¶21} We note, however, that the journal entry fails to specify Peterson‘s term at the community-based correctional facility, despite the trial court stating so at sentencing in accordance with
{¶22} Judgment affirmed and case remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
MARY J. BOYLE, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
PATRICIA ANN BLACKMON, J., CONCUR