[Cite as State v. Falke, 2013-Ohio-4685.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 13 CAA 03 0020
BOBBY J. FALKE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case No. 12-CR-I-11-0442


JUDGMENT:                                       Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         October 21, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CAROL HAMILTON O'BRIEN                         JOHN R. CORNELY
Prosecuting Attorney                           21 Middle Street
ERIC C. PENKAL                                 P.O. Box 248
Assistant Prosecuting Attorney                 Galena, Ohio 43021
140 N. Sandusky Street 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 13 CAA 03 0020                                                    2

Hoffman, P.J.


         {¶1}   Defendant-appellant Bobby J. Falke appeals the February 25, 2013

sentence entered by the Delaware County Court of Common Pleas. Plaintiff-appellee is

the state of Ohio.

                                     PROCEDURAL HISTORY1

         {¶2}   On November 15, 2012, the Delaware County Grand Jury returned a three

count indictment against Appellant, charging him with receiving stolen property, in

violation of R.C. 2913.51; burglary, in violation of R.C. 2911.12(A)(2); and theft, in

violation of R.C. 2913.02(A)(1).

         {¶3}   On January 22, 2013, Appellant entered a plea of guilty to burglary, in

violation of R.C. 2911.12(A)(3), a lesser included charge to the burglary count charged

in the indictment. The state dismissed the remaining counts.

         {¶4}   On February 25, 2013, the trial court sentenced Appellant to thirty months

in prison to run consecutive to Licking County Case No. 09 CR 330.

         {¶5}   In Licking County Case No. 09 CR 330, the Licking County Court of

Common Pleas sentenced Appellant to three years of community control on December

4, 2009. The court informed Appellant if he violated the terms of his community control,

he would be sentenced to a term of three years in the state penitentiary.

         {¶6}   In Licking Case No. 09CR330, the state filed a motion to revoke

Appellant’s community control on March 21, 2013. On May 6, 2013, the trial court

revoked Appellant’s community control and ordered Appellant serve a stated prison

term of three years at the Orient Reception Center. The court ordered the sentence run

1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Delaware County, Case No. 13 CAA 03 0020                                              3


consecutively with the sentence imposed herein and in Franklin County Common Pleas

Court Case No. 08CR5593.

      {¶7}   Here, Appellant appeals his February 25, 2013 sentence in the Delaware

County Court of Common Pleas, assigning as error:

      {¶8}   “I. THE SENTENCE IN THIS CASE IS CONTRARY TO LAW AS THE

TRIAL COURT LACKED THE ABILITY TO ORDER THE PRISON SENTENCE TO

RUN CONSECUTIVE TO ANY POSSIBLE FUTURE PRISON SENTENCE IMPOSED

BY LICKING COUNTY, OHIO COMMON PLEAS COURT FOR APPELLANT’S

VIOLATION OF COMMUNITY CONTROL SANCTIONS PREVIOUSLY IMPOSED BY

THAT COURT.”

                                              I.

      {¶9}   Previously, in State v. Malcolm, Licking App. No. 03CA09, 03CA10, 2003-

Ohio-5629, this Court held,

      {¶10} "Appellant maintains the trial court erred and/or abused its discretion in

sentencing appellant. Specifically, appellant challenges the trial court's imposing the

sentence in 02–CR–00399 consecutive to the sentences yet to be announced in 94–

CR–00404 and 95–CR–00065. Appellant notes, at the time of sentencing on the felony

fleeing charge, the trial court had neither revoked appellant's probation or sentenced

appellant on the previous cases. Appellant argues the trial court could not have known

at the time it sentenced appellant on felony fleeing, if probation would be revoked, nor

what sentences would be imposed in the prior cases, if any.

      {¶11} "Appellant relies upon State v. Watson (1992), 76 Ohio App.3d 258, 601

N.E.2d 230, asserting a court cannot sentence a defendant to a term which will run
Delaware County, Case No. 13 CAA 03 0020                                                  4


consecutive to a sentence which will be imposed at some future time. The Twelfth

District held, ‘A trial court may not enter a sentence to be served consecutively with

sentences that are to be imposed in futuro. State v. White (1985), 18 Ohio St.3d 340, 18

OBR 381, 481 N.E.2d 596.’

       {¶12} "In State v. White, supra, the Ohio Supreme Court stated:

       {¶13} “'Appellant also raises the issue on appeal that the judgment of the

Delaware County trial court exceeded its jurisdiction in that it required sentences

imposed by the Delaware County court to be served consecutively with sentences in the

Clermont County court, which had not yet been imposed. Appellant asserts that a trial

court may only order a sentence consecutive to other sentences already imposed in

other counties* * *

       {¶14} “' * * *this court is persuaded that the grant of discretion to a trial court

concerning the imposition of a consecutive sentence is based upon the premise that the

other sentence is either one being imposed by the trial court at that time or is a

sentence previously imposed, even if by another court, and is not a sentence in futuro.

       {¶15} “' * * * When a trial court imposes a sentence and orders it to be served

consecutively with any future sentence to be imposed, it appears that such a sentence

interferes with the discretion granted the second trial judge to fashion an appropriate

sentence or sentences pursuant to the provisions of the Revised Code. The second trial

judge must have discretion pursuant to R.C. 2929.41(A) and (B) to fashion the sentence

to be imposed as a result of the conviction in his trial court. The sentences imposed by

the Delaware County court in this case have taken away the statutory discretion granted

the judge in the Clermont County court. It appears, therefore, that the Delaware County
Delaware County, Case No. 13 CAA 03 0020                                                5


court has exceeded the authority granted it by the General Assembly by ordering its

sentence to run consecutively with a sentence that had not yet been imposed by the

Clermont County court.'

       {¶16} "In the case sub judice, Judge Spahr sentenced appellant regarding the

felony fleeing charge, and ran the sentence consecutive to the sentences imposed in

94–CR–00404 and 95–CR–00065, which were addressed one day following Judge

Spahr's ruling.

       {¶17} "Appellant's probation violation hearing and the criminal charge of felony

fleeing are separate and distinct matters. The probation violation finding is not a second

penalty for a new offense, but rather involves reimposition of the original sentence. As

appellant had previously been sentenced in both 94–CR–00404 and 95–CR–00065, the

sentences were not in futuro but rather sentences now being reimposed due to the

revocation of appellant's probation. Accordingly, we find appellant's reliance on Watson

and White unpersuasive."

       {¶18} In Malcolm, above, Appellant had previously began serving his prison

sentence, was released on probation, and then his sentence was then reimposed due to

revocation of his probation. The case herein is distinguishable from the procedural

scenario presented in Malcolm.      Here, Appellant was sentenced to three years of

community control sanctions in Licking Co. Case No. 09 CR 330.            The trial court

informed Appellant if he violated the terms and conditions of his community control

sanction he would be sentenced to a term of three years in the state penitentiary. We

find the warning of a possible prison sentence for a future community control violation is

not a sentence already imposed, but a sentence to be imposed in the future. The
Delaware County, Case No. 13 CAA 03 0020                                               6


Licking County Court of Common Pleas had yet to impose Appellant's sentence for

violating the terms of his community control. Accordingly, we find the procedural posture

presented in this case distinguishable from those presented to us in Malcolm.

      {¶19} The Tenth District held in State v. Alexander, Franklin App. No. 04AP-942,

2005-Ohio-3564,

      {¶20} "Defendant contends that the trial court erred when it ordered the

sentence to be served consecutively to any future sentence imposed by the federal

court resulting from the probation violation without specifically finding the factors

enumerated in R.C. 2929.14(E)(4)

      {¶21} "The state properly concedes that the trial court was without authority to

order the sentence imposed herein to be served consecutively to a sentence not yet

imposed by the federal court. The essence of the trial court's sentence is that if

sometime in the future the federal court imposes a sentence of imprisonment upon

defendant based upon her probation violation, the sentence imposed in the instant case

would run consecutively to that sentence.

      {¶22} “At the time of the offense, R.C. 2929.41(A) provided: 'Except as provided

in * * * division (E) of section 2929.14 * * * of the Revised Code, a sentence of

imprisonment shall be served concurrently with any other sentence of imprisonment

imposed by a court of this state, another state, or the United States.'             R.C.

2929.14(E)(4) affords a trial court discretion to order consecutive sentences by

providing that '[i]f multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively.' In State v. White (1985), 18 Ohio St.3d 340, 18 OBR 381, 481 N.E.2d
Delaware County, Case No. 13 CAA 03 0020                                                 7


596, the Ohio Supreme Court discussed the nature of the trial court's discretion in

imposing consecutive sentences, stating, '[T]his court is persuaded that the grant of

discretion to a trial court concerning the imposition of a consecutive sentence is based

upon the premise that the other sentence is either one being imposed by the trial court

at that time or is a sentence previously imposed, even if by another court, and is not a

sentence in futuro.' Id. at 342, 18 OBR 381, 481 N.E.2d 596. The court further stated

that ‘[w]hen a trial court imposes a sentence and orders it to be served consecutively

with any future sentence to be imposed, * * * such a sentence interferes with the

discretion granted the second trial judge to fashion an appropriate sentence or

sentences.’ Id. at 342–343, 18 OBR 381, 481 N.E.2d 596. In other words, subsequent

trial courts must be afforded the same discretion as the initial trial court to fashion a

sentence as a result of a conviction before it. Id. at 343, 18 OBR 381, 481 N.E.2d 596.

Here, pursuant to White, the trial court exceeded the authority granted to it by statute by

ordering defendant's sentence to run consecutively with a sentence that is yet to be

imposed by the federal court."

      {¶23} The Tenth District recently held in State v. Livesay, Franklin App. No.

12AP-181, 2012-Ohio-5039,

      {¶24} "Defendant admits R.C. 2929.15(B)(1)(c) authorized the trial court to

impose a prison term and further acknowledges the trial court did not exceed the 17–

month prison term specified in the notice the court gave defendant at the time it

sentenced him in 2011. Relying on State v. White, 18 Ohio St.3d 340 (1985), defendant

nonetheless asserts the trial court erred in imposing a sentence for defendant's violation

of community control to be served consecutively to a case that did not exist at the time
Delaware County, Case No. 13 CAA 03 0020                                              8


of defendant's February 17, 2011 sentencing. In discussing consecutive sentences,

White stated 'this court is persuaded that the grant of discretion to a trial court

concerning the imposition of a consecutive sentence is based upon the premise that the

other sentence is either one being imposed by the trial court at that time or is a

sentence previously imposed, even if by another court, and is not a sentence in futuro.'

Id. at 342.

       {¶25} "The trial court did not order defendant's 13–month sentence to be served

consecutively to a non-existing sentence; the Delaware County sentence preceded

imposition of the Franklin County 13–month sentence. Although defendant was advised

at his February 17, 2011 sentencing hearing of his potential 17–month sentence were

he to violate the terms of his community control, those months, as the parties seem to

agree, were not imposed until defendant violated the terms of his community control, at

which time the Delaware County conviction had resulted in the 18–month sentence

defendant was serving in another correctional institution. Indeed, defendant

acknowledges no Ohio court has applied White in the manner he suggests."
Delaware County, Case No. 13 CAA 03 0020                                               9

       {¶26} In accordance with White, Alexander and Livesay, Appellant's sentence in

the Delaware County Court of Common Pleas is reversed, and the matter remanded to

the trial court for further proceedings in accordance with the law and this opinion.

By: Hoffman, P.J.

Delaney, J. concur,

Wise, J. dissents

                                             ___________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             ___________________________________
                                             HON JOHN W. WISE


                                             ___________________________________
                                             HON. PATRICIA A. DELANEY
Delaware County, Case No. 13 CAA 03 0020                                             10

Wise, J., dissenting

      (¶27) I respectfully dissent from the majority decision in this matter. I find the

situation in Malcolm is not distinguishable. I find Malcolm stands for the basic

proposition that a sentence “reimposed” due to revocation of a defendant’s probation is

not considered an in futuro sentence. See Malcolm at ¶24. I find that proposition is

applicable even if, as here, the original sentence in the earlier case consisted of an

order of community control. Moreover, R.C. 2929.01(E) categorizes community control

as a “sanction,” not as a form of deferred sentencing.

      (¶28) Accordingly, I conclude the decision reached by the trial court in the case

sub judice was within the bounds of its sentencing discretion.



                                                ________________________________
                                                 HON. JOHN W. WISE
Delaware County, Case No. 13 CAA 03 0020                                              11


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
BOBBY J. FALKE                              :
                                            :
       Defendant-Appellant                  :         Case No. 13 CAA 03 0020


       For the reason stated in our accompanying Opinion, Appellant's sentence in the

Delaware County Court of Common Pleas is reversed and the matter remanded to the

trial court for further proceedings in accordance with the law and this opinion. Costs to

the state.




                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY
