[Cite as State v. Hartman, 2012-Ohio-874.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              VAN WERT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 15-10-11

        v.

ROBERT J. HARTMAN,                                      OPINION

        DEFENDANT-APPELLANT.




               Appeal from Van Wert County Common Pleas Court
                         Trial Court No. CR-09-12-186

                       Judgment Reversed and Cause Remanded

                             Date of Decision: March 5, 2012




APPEARANCES:

        Todd D. Wolfrum for Appellant

        Peter R. Seibel for Appellee
Case No. 15-10-11



ROGERS, J.

       {¶1} Defendant-Appellant, Robert Hartman (“Hartman”), appeals the

judgment of the Court of Common Pleas of Van Wert County, convicting him of

five counts of retaliation and sentencing him to twenty years in prison and to

community control. Finding that the sentence was contrary to law, we reverse the

judgment of the trial court.

       {¶2} On December 17, 2009, the Van Wert County Grand Jury indicted

Hartman on six counts of retaliation in violation of R.C. 2921.05(A), felonies of

the third degree. At his arraignment, Hartman pled not guilty to the charges

contained in the indictment and a jury trial was scheduled. On August 23, 2010, a

change of plea and sentencing hearing was held. Hartman entered a guilty plea to

five counts of retaliation as contained in the indictment; the sixth count was

dismissed. The judgment entry of plea and sentence was filed September 7, 2010,

which read in pertinent part:

       It is therefore [o]rdered that the Defendant is hereby sentenced
       as follows:

              Count I:         Four years incarceration
              Count II:        Four years incarceration
              Count III:       Four years incarceration
              Count IV:        Four years incarceration
              Count V:         Four years incarceration

       The sentence of four years as to Count I is imposed in the
       custody of the Ohio Department of Rehabilitation and

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       Correction; the sentences for Counts II, III, IV, and V totaling
       sixteen years are hereby [r]eserved. All sentences are to be
       served consecutively for an aggregate term of incarceration of
       twenty years with sixteen years being reserved.

       As to the reserved sentence the Defendant did execute the
       Community Control Agreement and Order and was advised
       [that] a condition of his [c]ommunity control is that while he is
       incarcerated * * * he shall not commit any criminal offenses and
       shall have no tickets, write-ups, excluding minor infractions. * *
       * The Defendant was advised that if he violated the [c]ommunity
       [c]ontrol he could be returned, his community control revoked,
       and the reserved sixteen years added to his current sentence.
       Docket No. 23.

       {¶3} It is from this judgment Hartman appeals, asserting the following as

error for our review.

                           Assignment of Error No. I

       IN VIOLATION OF THE OHIO FELONY SENTENCING
       GUIDELINES, THE COURT HEREIN SENTENCED
       DEFENDANT TO BOTH PRISON AND COMMUNITY
       CONTROL.

       {¶4} In his sole assignment of error, Hartman argues that the Ohio felony

sentencing guidelines do not permit a trial court to impose both a prison term and

community control, citing State v. Gardner, 3d Dist. No. 14-99-24 (Dec. 1, 1999).

We agree.

       {¶5} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-

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1181. A meaningful review means “that an appellate court hearing an appeal of a

felony sentence may modify or vacate the sentence and remand the matter to the

trial court for re-sentencing if the court clearly and convincingly finds that the

record does not support the sentence or that the sentence is otherwise contrary to

law.” Daughenbaugh at ¶ 8, citing Carter at ¶ 44; R.C. 2953.08(G).

       {¶6} In 1996, new sentencing statutes contained in Am.Sub.S.B. No. 2

(“S.B. 2”) took effect, which inter alia, prohibit a trial court from imposing both a

prison sentence and community control sanctions on the same offense. State v.

Vlad, 153 Ohio App.3d 74, 78, 2003-Ohio-2930 (7th Dist.); State v. Hoy, 3d Dist.

Nos. 14-04-13, 14-04-14, 2005-Ohio-1093, ¶ 18. As we have explained:

       [p]rior to S.B. 2, it was a regular practice in felony sentencing to
       impose a prison sentence and then suspend the sentence and
       grant probation with specific terms and conditions. That option
       was removed by the felony sentencing statutes adopted as part of
       S.B. 2. Hoy.

       {¶7} This district has determined that “there is no provision in the

sentencing statute which permits a court to suspend a prison term or make

community control a condition of a suspended prison term.” State v. Riley, 3d

Dist. No. 14-98-38 (Nov. 12, 1998). Rather, current felony sentencing statutes,

contained primarily in R.C. 2929.11 to 2929.19, require trial courts to impose

either a prison term or community control sanctions on each count. State v.

Williams, 3d Dist. No. 5-10-02, 2011-Ohio-995, ¶ 17, citing Hoy. Pursuant to

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Case No. 15-10-11



R.C. 2929.19(B), community control sanctions and prison terms are mutually

exclusive and cannot be imposed at the same time on the same count of

conviction. State v. Randolph, 12th Dist. No. CA2003-10-262, 2004-Ohio-3350, ¶

9. Because community control sanctions are directly imposed and do not follow

as a consequence of a suspended prison sentence, trial courts must decide which

sentence is most appropriate and impose whichever option is deemed to be

necessary. Vlad at ¶ 16.

      {¶8} In the case sub judice, the trial court explicitly sentenced Hartman to

four years’ incarceration on each of the five counts of retaliation, to be served

consecutively for a total of twenty years’ incarceration. Docket No. 23. It then

“reserved” sixteen years’ incarceration on counts II through V and imposed

community control sanctions for an undisclosed period. Id. While the trial court’s

intention may have been to impose community control on counts II through V, its

procedure was flawed. It is clear that Hartman’s sentence does not comport with

the felony sentencing statutes in place since 1996, or with this Court’s

jurisprudence, as the trial court imposed both prison terms and community control

on each of counts II through V. Hartman’s sentence on those counts is therefore

clearly and convincingly contrary to law.

      {¶9} Accordingly, we sustain Appellant’s assignment of error. Although

we find nothing to prevent a trial court from imposing a prison sentence on one

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count and community control on another, we find it necessary to reverse the entire

sentence in order that the trial court may clarify its intentions.

       {¶10} Having found error prejudicial to Appellant herein, in the particular

assigned and argued, we reverse and remand to the trial court for proceedings

consistent with this opinion.

                                                              Judgment Reversed and
                                                                   Cause Remanded

WILLAMOWSKI, J., concurs.
SHAW, P.J., concurs in Judgment Only.

/jlr




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