Opinion
No. 106724
06-07-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. RYAN T. COLE DEFENDANT-APPELLANT
FOR APPELLANT Ryan Cole, pro se Inmate No. A673738 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, Ohio 44430 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Katherine Mullin Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-592655-A BEFORE: Boyle, J., E.T. Gallagher, P.J., and Keough, J.
FOR APPELLANT
Ryan Cole, pro se
Inmate No. A673738
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, Ryan Cole, appeals his sentence. He raises one assignment of error for our review:
The trial court erred when it sentenced the appellant to serve his community control sanctions upon his completion of his prison sentence.
{¶3} The state concedes this error. After review, we agree with Cole and the state in part. Thus, we affirm in part, reverse in part, and remand.
I. Procedural History and Factual Background
{¶4} In June 2015, the trial court held a joint sentencing hearing on three of Cole's cases: Cuyahoga C.P. Nos. CR-15-592655 (the case on appeal), CR-15-583315, and CR-15-581642.
{¶5} In CR-15-583315, Cole pleaded guilty to discharging a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3), a third-degree felony, with a one-year firearm specification. The trial court sentenced Cole to 42 months in prison. It then ordered that upon completion of his prison sentence, Cole should be returned to Cuyahoga County for transfer to a community-based correctional facility ("CBCF") as sentenced in CR-15-581642 and CR-15-592655.
{¶6} In CR-15-581642, Cole pleaded guilty to having a weapon while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony, and falsification in violation of R.C. 2921.13(A)(3), a first-degree misdemeanor with a forfeiture specification. The trial court sentenced him to five years of community control sanctions. It then stated: "Upon completion of 42 month prison sentence in case 583315, ODRC is ordered to return defendant to the custody of Cuyahoga County jail pending placement to the CBCF as part of the sentence in this case and case 592655."
{¶7} In CR-15-592655, Cole pleaded guilty to trafficking in violation of R.C. 2925.03(A)(2), a fifth-degree felony, with forfeiture specifications, and resisting arrest in violation of R.C. 2921.33(A), a second-degree misdemeanor. The trial court sentenced Cole to five years of community control sanctions. It then stated: "Defendant is ordered returned to Cuyahoga County upon completion of 42 months sentence in case 583315 for placement to the CBCF."
{¶8} In November 2017, Cole filed a motion to correct a void sentence in CR-15-592655, which the trial court denied. It is from this judgment that Cole now appeals.
II. Law and Analysis
{¶9} We review felony sentences under R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Pursuant to this statute, an appellate court does not review the sentencing court's decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the appellate court clearly and convincingly finds "the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1. Thus, this court may "increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d 1217, ¶ 1, citing Marcum at ¶ 7.
{¶10} Cole argues that the trial court "had no authority to sentence [him] to serve his five years of community control sanctions" upon completion of his 42-month prison sentence in CR-15-583315. In its concession, the state cites to State v. Paige, Slip Opinion No. 18-Ohio-813, and asserts that the proper remedy is to reverse and remand for resentencing. We agree that Paige is instructive, but do not agree with the state's proposed remedy.
{¶11} In Paige, the trial court sentenced the defendant to 42 months in prison for sexual battery and five years of community control sanctions for domestic violence. The trial court ordered that the sentences be served concurrently, but the reality was that Paige would get out of prison after three and a-half years, and would have one and a-half years of community control sanctions remaining. The trial court then ordered that upon his release from prison, Paige should be "return[ed] to the county jail for assessment and transfer to CBCF." State v. Paige, 8th Dist. Cuyahoga No. 104109, 2016-Ohio-7615, ¶ 4. Paige appealed, arguing that his sentence was prohibited under this court's holding in State v. Anderson, 8th Dist. Cuyahoga No. 102427, 2015-Ohio-51367. Paige at ¶ 10.
This decision was later confirmed en banc. See State v. Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044. --------
{¶12} This court disagreed that Paige's sentence was controlled by Anderson because "[i]n Anderson, [we] held that the trial court was not authorized pursuant to the sentencing statutes to impose a community control sanction consecutive to a prison term." Paige at ¶ 10. Because the trial court ordered Paige's sentence to be served concurrently, we found Anderson to be inapposite. Id. Nonetheless, we held that the trial court's possible attempt to get around our holding in Anderson was not proper because, by doing so, the trial court imposed a "split sentence" for the domestic violence count, which we noted was not permitted under the Ohio sentencing statutes. Id. at ¶ 10. We therefore vacated Paige's sentence for domestic violence. Id. at ¶ 11.
{¶13} The Ohio Supreme Court accepted the state's discretionary appeal in Paige. See State v. Paige, 150 Ohio St.3d 1407, 2017-Ohio-6964, 78 N.E.3d 908. The Supreme Court disagreed with this court that the trial court imposed a "split sentence" because the trial court imposed "a prison sentence on the sexual-battery count and, separately, a five[-]year period of community control on the domestic-violence count." Id. at ¶ 6. But the Supreme Court agreed with the state that the trial court erred when it ordered that Paige be returned to Cuyahoga County upon his release from prison for placement in a CBCF. In doing so, the Supreme Court stated:
R.C. 2929.41(A) provides that 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" unless a statutory exception applies. (Emphasis [sic].) Pursuant to R.C. 1.05(A), "imprisonment" includes a term in a CBCF. Thus, a term of confinement in a CBCF is a "sentence of imprisonment" under R.C. 2929.41(A).
A confinement term in a CBCF is a permissible community-residential sanction for certain felony offenders pursuant to R.C. 2929.16(A)(1). But here, none of the statutory exceptions in R.C. 2929.41(A) apply to permit the CBCF term to run consecutively to the prison term imposed on the sexual-battery count. State v. Anderson, 2016-Ohio-7044, ¶ 16, 62 N.E.3d 229 (8th Dist.); see also State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874 (concluding that because the General Assembly expressly provided statutory exceptions to the general rule that sentences of imprisonment must be run concurrently and because jail sentences did not qualify as an exception under R.C. 2929.41(A), jail sentences may not be imposed consecutively). Accordingly, the trial court had no statutory authority to order, as part of the community-control sanction, that Paige be placed in a CBCF after his completion of the separate prison term. Judges must impose only those sentences provided for by statute. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, at ¶ 12. Thus, the trial court's imposition of a CBCF term as a community-control sanction, to be served consecutively to a prison term imposed on a separate offense, was improper.Id. at ¶ 12-13.
{¶14} The Supreme Court then turned to the remedy. It agreed with the state that the proper remedy was to vacate only the improperly imposed residential sanction. The high court explained:
Under R.C. 2929.15(A)(1), a court may impose on a felony offender who is not required to serve a mandatory prison term one or more community control sanctions authorized by statute. Here, the trial court imposed a five-year period
of community-control supervision with a number of conditions, including completion of anger-management training, a no-contact order, and placement in a CBCF (as discussed above). Because vacating the improperly imposed CBCF term does not disturb the remainder of the community-control sentence, we conclude that the proper remedy is to vacate only that portion of the community-control sentence.Id. at ¶ 14. The Supreme Court "reverse[d] the judgment of the Eighth District Court of Appeals and reinstate[d] the sentence imposed on the domestic violence count except for the condition requiring Paige's placement in a CBCF upon his release from prison, which [it] vacate[d]." Id. at ¶ 14.
{¶15} Thus, pursuant to the Supreme Court's holding in Paige, the trial court's order that Cole be returned to Cuyahoga County upon his release from prison to be placed in a CBCF was improper. Nonetheless, like in Paige, the trial court here imposed a number of conditions as part of Cole's community control sanctions in CR-15-592655 and CR-15-581642 in addition to placement in a CBCF. These additional conditions were nearly identical in the two cases and included that he (1) abide by all rules and regulations of the probation department, (2) be supervised by Group E, (3) report weekly, (4) pay a monthly supervision fee of $20, and (5) be drug tested twice a week. Further, in CR-15-581642, the trial court ordered that Paige have no contact with the victim.
{¶16} Just as in Paige, vacating the improperly imposed CBCF term in this case would not disturb the remainder of the community control sentence. Therefore, we conclude that the proper remedy here is to vacate the improperly imposed CBCF term in CR-15-592655 and leave the remaining conditions of the community control sanctions in place. We further sua sponte vacate the improperly imposed CBCF term in CR-15-581642 (sua sponte because Cole did not appeal the judgment in this case) because it is also contrary to law (a point that the state also concedes). We instruct the trial court to correct the sentencing entries in these cases to reflect the holding in this decision. We further instruct the trial court to correct the sentencing entry in CR-15-583315 to reflect that Cole should not be returned to Cuyahoga County jail for transfer to a CBCF in CR-15-581642 and CR-15-592655.
{¶17} Judgment affirmed in part, reversed in part, and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the 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 Rule 27 of the Rules of Appellate Procedure. /s/_________
MARY J. BOYLE, JUDGE EILEEN T. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR