[Cite as State v. Byers, 2019-Ohio-3947.]




                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                 WASHINGTON COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 19CA4
                               :
     vs.                       :
                               :    DECISION AND
REED M. BYERS,                 :    JUDGMENT ENTRY
                               :
     Defendant-Appellant.      :
_____________________________________________________________
                          APPEARANCES:

Angela Miller, Jupiter, Florida, for Appellant.

Nicole Coil, Washington County Prosecuting Attorney, and David K.H. Silwani,
Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

        {¶1} This an appeal from a Washington County Common Pleas Court

judgment entry finding Appellant, Reed M. Byers, guilty of two counts of

Aggravated Trafficking in Drugs, both third-degree felonies in violation of R.C.

2925.03(A)(1) and (C)(1)(b). Appellant was sentenced to a twenty-four month

prison term on one count and a five-year term of community control on the other

count, to be served consecutively. Because the Supreme Court of Ohio recently

held that trial courts lack statutory authority to order community control sanctions

be served consecutively to prison terms on other felony counts, we sustain
Washington App. No. 19CA4                                                            2

Appellant’s sole assignment of error. Accordingly, the decision of the trial court is

reversed and this matter is remanded for further proceedings consistent with this

opinion.

                                      FACTS

      {¶2} The State concurs with Appellant’s statement of the case and facts. We

have therefore summarized the agreed-upon facts and case history pertinent to this

appeal as follows. Appellant was indicted on October 1, 2018, for five counts of

Aggravated Trafficking in Drugs, one of which was a second-degree felony and the

rest of which were third-degree felonies, all in violation of R.C. 2925.03.

Appellant was also indicted on one count of Aggravated Possession of Drugs, a

third-degree felony in violation of R.C. 2925.11, and one count of Having

Weapons While Under Disability, a third-degree felony in violation of RC.

2923.13. The indictment also contained twelve forfeiture specifications. Pursuant

to a plea agreement, on January 10, 2019, Appellant pled guilty to counts three and

four of the indictment, both of which charged him with third-degree felony

Aggravated Trafficking in Drugs. He also entered guilty pleas to all twelve

forfeiture specifications with an agreement that some of the items, which included

a computer and a vehicle belonging to other family members, be exempted. In

exchange, the trial court dismissed counts one, two, five, six and seven of the

indictment.
Washington App. No. 19CA4                                                               3

      {¶3} The trial court thereafter sentenced Appellant to a twenty-four-month

prison term in connection with his guilty plea to count four of the indictment. The

trial court also sentenced Appellant to a five-year period of community control in

connection with his guilty plea to count three of the indictment, but ordered that it

be “tolled” until completion of the prison term imposed on count four. Thus, the

trial court essentially ordered the two sentences be served consecutively. Defense

counsel objected to the trial court’s imposition of a blended sentence, arguing that

the trial court was not permitted to tack on a period of community control after

completion of a prison term. The trial court noted the objection but did not alter

the manner in which it imposed the sentences. Appellant has now appealed the

trial court’s February 26, 2019 judgment entry and sets forth one assignment of

error for our review.

                            ASSIGNMENT OF ERROR

      I.     “THE TRIAL COURT ERRED IN SENTENCING
             APPELLANT TO A TERM OF COMMUNITY CONTROL
             CONSECUTIVE TO AN IMPOSED PRISON TERM ON A
             SEPARATE FELONY COUNT.”

                                LEGAL ANALYSIS

      {¶4} In his sole assignment of error, Appellant contends that the trial court

erred in sentencing him to a term of community control to be served consecutively

to a prison term imposed on a separate felony count. More specifically, Appellant

argues that the trial court lacked statutory authority to impose community control
Washington App. No. 19CA4                                                            4

sanctions to be served consecutively with a prison term. Thus, as Appellant argues

the trial court lacked statutory authority to impose his sentences in the manner that

it did. Appellant essentially contends his sentence is contrary to law.

      {¶5} Appellant concedes there is a split of authority on this particular

question among Ohio courts but nevertheless urges this Court to vacate the

community control portion of his sentence and remand the matter for resentencing.

The State, however, asks this Court to follow its prior ruling in State v. Fisher,

2018-Ohio-5018, 124 N.E.3d 310 (4th Dist.), where we held that trial courts were

authorized to order a community control sanction to be served consecutively to a

prison term imposed on another count. We begin with a look at the appropriate

standard of review to be employed when reviewing challenges to the imposition of

felony sentences.

      {¶6} When reviewing felony sentences, appellate courts must apply the

standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23. Under R.C.

2953.08(G)(2), “[t]he appellate court's standard for review is not whether the

sentencing court abused its discretion.” Instead, R.C. 2953.08(G)(2) provides that

an appellate court may increase, reduce, modify, or vacate and remand a

challenged felony sentence if the court clearly and convincingly finds either:
Washington App. No. 19CA4                                                              5

      (a) That the record does not support the sentencing court's findings

      under division (B) or (D) of section 2929.13, division (B)(2)(e) or

      (C)(4) of section 2929.14, or division (I) of section 2929.20 of the

      Revised Code, whichever, if any, is relevant;

      (b) That the sentence is otherwise contrary to law.

      {¶7} As set forth above, Appellant acknowledges there is a split of authority

among Ohio courts on this issue and notes the question is currently pending before

the Supreme Court of Ohio. See State v. Hitchcock, 152 Ohio St.3d 1405, 2018-

Ohio-723, 92 N.E.3d 877 (determining that a conflict exists, accepting the cause

and holding it for decision in 2016-1848). Appellant further argues that ordering

both post-release control and community control is duplicative. As indicated

above, the State urges this Court to adhere to our prior ruling in State v. Fisher,

supra. In Fisher, this Court issued a split opinion with the majority holding that a

trial court “was authorized to order the community-control sanctions for two

offenses to run consecutively to the prior sentence for the remaining offense.” Id.

at ¶ 24. However, in so holding we acknowledged that the Supreme Court of Ohio

had certified a conflict in Hitchcock, and that the case remained pending at the time

we issued our decision.

      {¶8} Since the parties herein filed their briefs, the Supreme Court of Ohio

issued a decision on the certified question presented in Hitchcock. See State v.
Washington App. No. 19CA4                                                             6

Hitchcock, 2019-Ohio-3246, ---N.E.3d--- (2019). In rendering its decision, the

Court engaged in a review of the “relevant aspects of Ohio’s sentencing process[]”

with respect to “a court sentencing a defendant on multiple felony counts * * *.”

Id. at ¶ 15. For instance, the Court observed that when sentencing on multiple

felony counts, a court “must initially determine the limits of its discretion.” Id.

The Court noted that “[s]ome felonies involve mandatory prison terms or a

specification that removes sentencing discretion from the trial court.” Id., citing

R.C. 2929.14(B). The Court further explained as follows in ¶ 16-18:

      When sentencing a defendant on other felonies, such as the third-

      degree felonies at issue in this case, the trial court has discretion to

      impose either a prison term under R.C. 2929.14 or community-control

      sanctions under R.C. 2929.15. In making this determination, the trial

      court is sometimes guided by statutory presumptions or preferences

      affixed to certain felony levels. R.C. 2929.13. The applicable statute

      might apply to the relevant felony either a rebuttable presumption of a

      prison term, R.C. 2929.13(D), or a preference for community-control

      sanctions, R.C. 2929.13(B), or the statute might be neutral—without a

      presumption or preference either way, R.C. 2929.13(C).

      In exercising its discretion to impose either a prison term or

      community-control sanctions for an offense, the trial court must
Washington App. No. 19CA4                                                               7

      consider the overriding purposes of felony sentencing under R.C.

      2929.11 and the aggravating and mitigating factors enumerated in

      R.C. 2929.12.

      As this court has previously stated, in Ohio, judges have no inherent

      power to create sentences, and the only sentence that a trial judge may

      impose is that provided for by statute. State v. Anderson, 143 Ohio

      St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10, 12.

      {¶9} Finally, with respect to the issue presently before us, the Court stated

that “[t]he Revised Code is silent as to whether a community-control sanction

imposed for one felony runs concurrently or consecutively to a prison term

imposed for another felony.” State v. Hitchcock, 2019-Ohio-3246, --- N.E.3d ---,

at ¶ 20. The Court reflected, however, that “[t]he general principle set forth in the

Revised Code is that concurrent sentences are the default and consecutive

sentences are the exception[,]” and that “[t]his general principle is consistent with

the rule of lenity.” Id. at ¶ 21, citing R.C. 2901.04(A) and State v. Elmore, 122

Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38. The Court further

reasoned that although “the Revised Code does not prohibit trial courts from

imposing community control sanctions on one felony to be served consecutively to

a prison term imposed on another felony[,] * * * this does not mean that trial courts

are authorized to impose such consecutive terms.” State v. Hitchcock at ¶ 23.
Washington App. No. 19CA4                                                           8

In light of this reasoning, the Court determined that “[a]bsent express statutory

authorization for a trial court to impose the increased penalty of consecutive

sentences, the trial court must follow the default rule of running the sentences

concurrently.” Id. at ¶ 24.

      {¶10} Thus, the Supreme Court ultimately held as follows on the certified-

conflict question:

      In this case, we are tasked with answering the certified-conflict

      question whether a trial court may impose community-control

      sanctions on one felony count to be served consecutively to a prison

      term imposed on a separate felony count. We answer that question in

      the negative and conclude that unless otherwise authorized by statute,

      a trial court may not impose community-control sanctions on one

      felony count to be served consecutively to a prison term imposed on

      another felony count. Hitchcock at ¶ 1.

In support of its holding, the Court reasoned as follows:

      Because no provision of the Revised Code authorizes trial courts to

      impose community-control sanctions on one felony count to be served

      consecutively to a prison term imposed on another felony count, we

      must conclude that trial courts may not do so. Id. at ¶ 24.
Washington App. No. 19CA4                                                           9

      {¶11} Accordingly, the Hitchcock holding is dispositive of the issue raised

in the present appeal and mandates that we sustain Appellant’s sole assignment of

error, reverse the judgment of the trial court and remand this matter for

resentencing consistent with this opinion.

                   JUDGMENT REVERSED AND CAUSE REMANDED.
Washington App. No. 19CA4                                                             10

                               JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED and costs be assessed to Appellee.
      The Court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.
       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
      McFarland, J. & Hess, J.: Concur in Judgment and Opinion.
                                 For the Court,
                           BY: __________________________________
                               Jason P. Smith, Presiding Judge


                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
