[Cite as State v. Pratt, 2018-Ohio-1394.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105791




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      RAHKEBA PRATT
                                                     DEFENDANT-APPELLANT




                                     JUDGMENT:
                               REVERSED AND REMANDED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-17-613197-A

        BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 12, 2018
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender

BY: Paul Kuzmins
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY:    Ronni Ducoff
       Mary M. Frey
       Sean Kilbane
Assistant Prosecuting Attorneys
The Justice Center, 8th and 9th Floors
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Rahkeba Pratt (“Pratt”), appeals her sentence and

claims the following two errors:

       1. The trial court erred in ordering [Pratt] to serve the maximum 180 days
       in jail followed by five years of community control supervision on the same
       count for both Counts 1 and 2 of the indictment.

       2. The trial court erred in ordering [Pratt] to serve the maximum sentence
       where her conduct did not amount to the worst form of the offense and she
       did not have any prior criminal history.

       {¶2} We find merit to the appeal, reverse the trial court’s judgment, and remand

the case to the trial court for resentencing.

                             I. Facts and Procedural History

       {¶3} Pratt pleaded guilty to two counts of misdemeanor child endangering after

her live-in boyfriend was charged with sexually assaulting her two daughters, R.W. I and

R.W. II.     The indictment alleged that Pratt’s boyfriend, Michael Bell (“Bell”),

continually molested the children from August 1, 2015, through June 13, 2016.

       {¶4} In August 2015, Pratt, Bell, and Pratt’s two children were living on East 90th

Street in Cleveland when Pratt ’s oldest daughter, R.W. II, told her that Bell touched her

inappropriately.    Pratt confronted Bell about the accusation, and Bell denied any

inappropriate touching. He claimed he innocently touched R.W. II while he was looking

for bed bugs. The apartment was infested with bed bugs, and Pratt concluded that R.W.

II mistook Bell’s innocent behavior for something more sinister. However, the parties
later moved to Tacoma Avenue in Cleveland where R.W. II again told her mother that

Bell touched her inappropriately. This time, Pratt instructed R.W. II not to tell anyone

“because we need a place to stay.”

       {¶5} Sometime later, R.W. II was caught stealing money from her maternal aunt.

When R.W. II’s aunt questioned her about the theft, R.W. II told her aunt about the abuse

and that her mother told her not to tell anyone because they needed a place to stay. R.W.

II thought the money might help her mother and improve the situation.

       {¶6} R.W. II’s aunt reported the abuse to the police. The police transported Pratt

and her daughters to the emergency room at University Hospitals for a sexual assault

evaluation. According to the police report, R.W. II told Pratt during the drive to the

hospital “that I have been trying to tell you this mom, but you wouldn’t listen.”

However, no physical examination was done at the hospital because there had been no

physical abuse in the last 72 hours. The emergency room personnel referred Pratt to the

Care Clinic at University Hospitals, which provides services to children suspected of

being sexually abused. Although Pratt received a packet of information regarding the

Care Clinic’s services and its address and telephone number, Pratt never took the children

to the Care Clinic.

       {¶7} Pratt was arrested one month after the abuse was reported to police, and the

children moved in with their maternal grandmother (“Grandmother”). Grandmother took

R.W. I to the hospital because she was showing signs of a urinary tract infection. R.W. I,

who was eight years old, was subsequently diagnosed with trichomonas, a sexually
transmitted disease. Grandmother informed the court at sentencing that the children

were both in counseling through the Rape Crisis Center to sort out the trauma they

endured as a result of Bell’s actions and the lack of trust they experienced from their

mother, who failed to protect them after she learned of the abuse.

       {¶8} The trial court sentenced Pratt to 180 days in jail on each count of child

endangering and ordered the jail terms to be served concurrently, followed by a period of

community control on each count.1 Pratt now appeals her sentence.

                                 II. Law and Analysis

       {¶9} In the first assignment of error, Pratt argues the trial court erred in ordering

her to serve 180 days in jail followed by a period of community control supervision. She

contends this sort of hybrid sentence that combines a maximum term of incarceration with

a period of community control is contrary to law and that the court should have suspended

the jail sentence.   She cites State v. Aziz-Hakim, 8th Dist. Cuyahoga No. 98176,

2012-Ohio-5890, to support her argument.

       {¶10} Aziz-Hakim was sentenced to 180 days in jail. In addition to the maximum

jail term provided by law, the sentencing entry stated that Aziz-Hakim was “Banned from

Walmart” because Aziz-Hakim committed his crimes at Walmart. Id. at ¶ 17. On

appeal, Aziz-Hakim argued that “while the court could ban him from the store as a

condition of community control, it could not impose community control where the court


       1  The trial court sentenced Pratt to five years of community control
sanctions on the record at the sentencing hearing. However, the sentencing entry
states that Pratt was sentenced to two years of community control sanctions.
imposed the maximum jail term for a first-degree misdemeanor with no part of that

sentence suspended.” Id. This court agreed and remanded the case to the trial court to

vacate Aziz-Hakim’s sentence. Id. at ¶ 17.

       {¶11} R.C. 2929.25(A)(1) supports the court’s conclusion in Aziz-Hakim. R.C.

2929.25(A)(1) authorizes hybrid sentences composed of a jail term followed by a period

of community control sanctions, but only if the trial court suspends “all or a portion of the

jail term imposed.” R.C. 2929.25(A)(1)(b). In other words, a trial court may not require

a defendant to serve a period of community supervision after serving the maximum jail

sentence for a misdemeanor.

       {¶12} The trial court in this case ordered Pratt to serve the maximum jail term of

180 days on each of her child endangering convictions followed by a period of

community control sanctions, to be served concurrently. Because the trial court did not

suspend all or a portion of the jail terms imposed, the sentences are contrary to law.

       {¶13} Accordingly, the first assignment of error is sustained.

       {¶14} Having determined that Pratt’s concurrent sentences are contrary to law, the

second assignment of error, which concerns the propriety of the court’s decision to

impose maximum jail terms, is moot.

       {¶15} Judgment reversed and case remanded to the trial court for resentencing on

both counts of child endangering.

       It is ordered that appellant recover from appellee 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.



EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
