[Cite as State v. Masters, 2016-Ohio-7391.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103022




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    TODD MASTERS, II
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                  AFFIRMED, IN PART; REVERSED, IN PART;
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-590723-A

        BEFORE: Keough, J., Jones, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: October 20, 2016
ATTORNEY FOR APPELLANT

Thomas A. Rein
700 West St. Clair, Suite 212
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Khalilah Lawson
Frank Zeleznikar
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Todd Masters, II, appeals his sentence. For the reasons

that follow, we affirm, in part; reverse, in part; and remand for a limited resentencing.

       {¶2} In November 2014, Masters was named in a four-count indictment charging

him with attempted murder, two counts of felonious assault, and illegal possession of a

firearm in a liquor permit premises. The attempted murder and felonious assault charges

contained one- and three-year firearm specifications.

       {¶3} Masters pled guilty to one count of felonious assault and the attendant

one-year firearm specification, and possessing a firearm in a liquor permit premises. At

sentencing, the court imposed a three-year sentence on the felonious assault charge,

which was to be served after the mandatory one-year for the firearm specification. For

the possession of a firearm in a liquor permit premises, the court ordered that Masters be

placed on community control sanctions for three years, with the first six-months to be

served in a community-based correctional facility (“CBCF”). The court ordered that

Masters’s prison term and community control term be served consecutively.

       {¶4} Masters now appeals, raising three assignments of error.

                   I. Consecutive Sentence — R.C. 2929.14 Findings

       {¶5} In his first assignment of error, Masters contends that 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. Although Masters recognized that the

six-month confinement term at CBCF was not a “prison” sentence, he contends that it
was a jail sentence; thus, requiring the appropriate findings under R.C. 2929.14(C)(4). A

similar argument was rejected by this court in State v. Peterson, 8th Dist. Cuyahoga No.

102428, 2015-Ohio-4581.

       {¶6} R.C. 2929.14(C)(4) authorizes a trial court to order multiple prison terms to

be served consecutively if the trial court makes certain findings enumerated in the statute.

 (Emphasis added.) However, R.C. 2929.14(C)(4) does not apply in the current case

because the statute applies only to consecutive “prison terms” for convictions of “multiple

offenses.” See State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d

874.

       {¶7} In this case, Masters was not sentenced to multiple prison terms; rather he

was sentenced to a four-year prison term for felonious assault and specification followed

by three years of community control sanctions, which included a six-month term at

CBCF. See State v. Cook, 8th Dist. Cuyahoga No. 77101, 2000 Ohio App. LEXIS 5712

(Dec. 7, 2000) (recognizing that “[s]erving time in a local ‘jail’ as part of community

control sanctions is not the same as a prison sentence”). Accordingly, the trial court was

not required to make the R.C. 2929.14(C)(4) findings. Moreover, as it will be discussed

in Masters’s second assignment of error, the imposition of consecutive sentences was in

error. Masters’s first assignment of error is overruled.

                                    II. Split Sentence

       {¶8} In his second assignment of error, Masters contends that the trial court erred

in imposing a split sentence, which included both a prison term and community control
sanctions, where the sanctions automatically included additional confinement in CBCF.

In support of his assignment of error, Masters cites a series of cases that hold that a trial

court cannot impose a prison term consecutive to a period of community control sanctions

for the same offense. See State v. Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, 938

N.E.2d 79 (8th Dist.); State v. Street, 8th Dist. Cuyahoga No. 85020, 2006-Ohio-21, State

v. Miller, 12th Dist. Butler No. CA No. 2010-12-336, 2011-Ohio-3909; State v. Walton,

3d Dist. Wyandot Nos. 16-12-13 and 16-12-14, 2013-Ohio-2147.

       {¶9} The distinguishing factor between the cases cited above and the case before

this court is that the trial court in this case did not impose a split sentence for the same

offense; the court imposed a prison sentence on the felonious assault offense and a term

of community control sanctions on the possessing a firearm inside a liquor permit

premises offense. Masters was sentenced on two separate offenses.

       {¶10} However, the court’s decision ordering Masters to serve a three-year term of

community control sanctions, including the first six months at a CBCF for the firearm

possession charge, consecutive to the three-year prison sentence on the felonious assault

charge was contrary to law. Recently, this court reviewed this precise situation en banc

— whether a term of community control sanctions on one offense can be imposed and

ordered to be served consecutively to a prison term on separate offenses.           State v.

Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044. In Anderson, the en banc

majority concluded that because there was “no statutory authority for the imposition of

community control sanctions to be served consecutive to, or following the completion of,
a prison or jail term or other sentence of imprisonment, the trial court was without

authority to impose the same.” Id. at ¶ 31.

       {¶11} Therefore, following the analysis and reasoning set forth in this court’s en

banc majority in Anderson, we reverse Masters’s sentence on the firearm possession

charge and remand for resentencing solely on that count. Masters’s other conviction for

felonious assault, including the firearm specification, is otherwise affirmed.

       {¶12} Accordingly, Masters’s assignment of error is sustained.

                       III. Allied Offenses — Firearm Specification

       {¶13} In his third assignment of error, Masters contends that the trial court erred

by ordering convictions and a consecutive sentence for separate counts because the trial

court failed to make a proper determination as to whether those offenses are allied

offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C.

2929.14. Succinctly, Masters argues that the one-year firearm specification under count

two is an allied offense of count four, and thus merge for the purposes of sentencing.

We disagree.

       {¶14} R.C. 2941.25(A) requires the merger of two or more allied offenses of

similar import. However, R.C. 2941.25(A) is not applicable to firearm specifications.

In State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, the Ohio Supreme

Court conclusively stated that a firearm specification is not a criminal offense; rather, it is

a sentence enhancement.       “We hold that R.C. 2941.145 and 2929.14(D) define a

sentence enhancement that attaches to a predicate offense.” Id. at ¶ 16. “Penalties for a
specification and its predicate offense do no merge under R.C. 2941.25.”          Id., at

paragraph two of the syllabus.

       {¶15} Accordingly, the firearm specification attendant to the felonious assault

count cannot be allied to the possessing a firearm in a liquor permit premises charge.

Masters’s third assignment of error is overruled.

       {¶16} Judgment affirmed, in part; reversed, in part; and remanded for the limited

purpose of resentencing Masters on Count 4, possession of a firearm in a liquor permit

premises.

       It is ordered that the parties share equally 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. Case remanded to the trial court for a

limited resentencing.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., A.J., and
EILEEN T. GALLAGHER, J., CONCUR
