[Cite as State v. Rutschilling, 2018-Ohio-3614.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MERCER COUNTY




STATE OF OHIO,
                                                           CASE NO. 10-18-06
       PLAINTIFF-APPELLEE,

       v.

AARON N. RUTSCHILLING,                                     OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Mercer County Common Pleas Court
                            Trial Court No. 14-CRM-060

                                       Judgment Affirmed

                           Date of Decision: September 10, 2018



APPEARANCES:

        Bryan Scott Hicks for Appellant

        Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-18-06


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Aaron N. Rutschilling (“Rutschilling”) brings this

appeal from the judgment of the Court of Common Pleas of Mercer County

sentencing him to consecutive sentences for violation of community control

sanctions.   Rutschilling claims that the trial court erred by imposing consecutive

sentences when the trial court did not inform him at the prior sentencing that this

was a possibility. For the reasons set forth below, the judgment is affirmed.

       {¶2} On May 15, 2014, the Mercer County Grand Jury indicted Rutschilling

on one count of trafficking in marijuana in violation of R.C. 2925.03(A)(1),

(C)(3)(a), (C)(3)(b), a felony of the fourth degree. Doc. 6. Rutschilling entered a

plea of not guilty. Doc. 21. On December 11, 2014, Rutschilling filed a motion for

intervention in lieu of conviction for the indicted charge as well as an expected

charge for possession of heroin. Doc. 39. On January 7, 2015, the State filed a bill

of information alleging an additional charge that Rutschilling had possessed heroin

on or about April 19, 2014, in violation of R.C. 2925.11(A), (C)(6)(a), a felony of

the fifth degree. Doc. 40. On March 25, 2015, Rutschilling and the State entered

into a negotiated plea agreement. Doc. 78. Rutschilling agreed to enter pleas of

guilty to an amended indictment count of trafficking in marijuana in violation of

R.C. 2925.03(A)(1); (C)(3)(a), a felony of the fifth degree, and one count of

possession of heroin in violation of R.C. 2925.11(A); (C)(6)(a), a felony of the fifth

degree, as charged in the bill of information. Id. Rutschilling also agreed to waive

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prosecution by indictment and consented to be prosecuted by the bill of information.

Id. In exchange, the State agreed to amend the trafficking in marijuana charge from

a fourth degree felony to a fifth degree felony. Id. The State also agreed not to

oppose intervention in lieu of conviction. Id. No sentencing agreement was

reached. Id. On March 20, 2015, an arraignment on the possession of heroin charge

and a change of plea hearing on the amended trafficking in marijuana charge was

held. Doc. 83. At that time, Rutschilling entered pleas of guilty pursuant to the

negotiated plea agreement. Id. The trial court accepted the pleas of guilty and

scheduled sentencing for a later date. Id.

       {¶3} On May 27, 2015, a sentencing hearing was held. Doc. 101. The trial

court sentenced Rutschilling to a term of community control for up to three years.

Doc. 101. The trial court informed Rutschilling that if he violated the sanctions, he

could receive “a prison term of Eleven (11) months on each count.” Id. at 7. The

judgment entry was silent as to whether the terms would be served concurrently or

consecutively. Id.

       {¶4} On February 8, 2017, the State filed a notice of failure to comply with

community control sanctions. Doc. 119. The notice alleged that Rutschilling had

been arrested for OVI, had tested positive for fentanyl and marijuana, and had failed

to take drug tests when requested. Id. A hearing was held on the violations on

March 22, 2017. Doc. 134. Rutschilling admitted the violations and the matter was



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set for disposition. Id. The disposition hearing was held on April 12, 2017. At the

hearing the trial court sentenced Rutschilling to consecutive sentences. Id.

Rutschilling appealed the sentences claiming that the trial court had failed to make

the required statutory findings among other issues. Doc. 147. This court sustained

the assignment of error regarding the imposition of consecutive sentences without

the required findings and remanded the matter for resentencing.                State v.

Rutschilling, 3d Dist. Mercer Nos. 10-17-06, 10-17-07, 2017-Ohio-9252.

       {¶5} On January 31, 2018, a new sentencing hearing was held. Doc. 185.

The trial court imposed a prison term of 11 months on each count and ordered them

served consecutive to each other. Id. At the sentencing hearing, the trial court made

the following findings in regard to the consecutive sentences.

       [T]he Court must make findings to impose the two, 11-month
       sentences in this case to run consecutively, and the Court does so
       at this time by finding and stating that based upon those
       sentencing factors, and the situation as it presently exists,
       consecutive sentences are necessary to protect the public from
       future crimes of the – by the offender and not disproportionate to
       the seriousness of his conduct and to the danger that he poses to
       the public, and that two of the multiple offenses were committed
       as part of one or more courses of conduct. Obviously, this being
       a separate offense with the possession of cocaine. The harm
       caused by the two offenses so committed was at least unusual and
       great that, enough, to make it so that no single prison term for
       either of these offenses committed, as part of these courses of
       conduct, adequately reflect the seriousness of this conduct. And
       therefore, the Court will impose the 22-month prison term for this
       case.




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Jan. 31, 2018, Tr. 8. Rutschilling appeals from this judgment and raises the

following assignment of error.

       The imposition of consecutive sentences was invalid.

       {¶6} On appeal, Rutschilling claims that the trial court erred by imposing

consecutive sentences when he was not informed at the time of the imposition of

community control sanctions that the sentences would be ordered to be served

consecutively.   This court has recently addressed this exact issue in State v.

Davenport, 3d Dist. Mercer No. 10-18-05, 2018-Ohio-3319. In Davenport, the

defendant argued that the trial court failed to reserve the power to impose

consecutive sentences in the event that he violated his community control. Id. at ¶

27. As in this case, Davenport was told that he would be subject to a prison term on

each count and he claimed that was not sufficient to provide him notice that he

would be subject to consecutive prison terms. Id. This court determined that the

“phrases ‘each offense’ and ‘two, 24-month sentences’ clearly indicate the

imposition of consecutive sentences.” Id. at ¶ 31. Thus, this court determined that

the trial court did not err in imposing consecutive sentences for a subsequent

violation of community control. Id. at ¶ 34.

       {¶7} Here, as in Davenport, Rutschilling was notified that a violation of

community control sanctions “will result in prison terms of 11 months on each

offense.” May 27, 2015, Tr. at 10. The trial court also advised Rutschilling that he

could be placed on post-release control and that a violation of that could result in

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him being “returned to prison for up to one-half of each of those 11-month

sentences.” Id. Additionally, the negotiated plea agreement signed by Rutschilling

advised him that although consecutive sentences were not mandatory, they could be

imposed. Doc. 78. Although it might have been a better practice to state that it

would be an aggregate 22-month sentence, this court does not find that the sentence

was improper in this case. The assignment of error is overruled.

       {¶8} Having found no error in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Mercer County is affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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