[Cite as State v. Imler, 2020-Ohio-159.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   :   JUDGES:
                                                 :
                                                 :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       :   Hon. William B. Hoffman, J.
                                                 :   Hon. Patricia A. Delaney, J.
 -vs-                                            :
                                                 :   Case No. 19-CA-21
                                                 :            19-CA-22
 JACKIE IMLER                                    :
                                                 :
                                                 :
        Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County Court
                                                     of Common Pleas, Case Nos. 15-CR-
                                                     134 and 17-CR-219



JUDGMENT:                                            REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                              January 15, 2020




APPEARANCES:

 For Plaintiff-Appellee:                             For Defendant-Appellant:

 R. KYLE WITT                                        THOMAS R. ELWING
 FAIRFIELD CO. PROSECUTOR                            60 West Columbus Street
 CYNTHIA ELLISON                                     Pickerington, OH 43147
 239 West Main, 101
 Lancaster, OH 43130
Fairfield County, Case Nos. 19-CA-21, 19-CA-22                                          2


Delaney, J.

       {¶1} Appellant Jackie Imler appeals from the April 8, 2019 Entries Revoking

Community Control of the Fairfield Court of Common Pleas. Appellee is the state of Ohio.

       {¶2} This is a consolidated appeal of 5th Dist. Fairfield No. 19-CA-21 and 19-

CA-22.

                        FACTS AND PROCEDURAL HISTORY

       {¶3} In August 2015, appellant entered guilty pleas to one violation of child

endangering pursuant to R.C. 2919.22(B)(6), a felony of the third degree [Count I], and

one count of illegal assembly or possession of chemicals for the manufacture of drugs

pursuant to R.C. 2925.041(A), also a felony of the third degree [Count III]. The matter

was docketed as Fairfield County Court of Common Pleas case number 15-CR-134. The

trial court imposed a prison term of 18 months upon Count III, and a 3-year term of

community control upon Count I, to be served consecutively to the prison term. The trial

court reserved the authority to impose an additional prison term of 12 months if appellant

violated the terms of community control.

       {¶4} In November 2015, appellant sought and was granted early judicial release

from the 18-month prison term.      Appellant then began to serve the 3-year term of

community control.

       {¶5} On May 11, 2017, appellant appeared before the trial court upon allegations

she violated the terms of community control in case number 15-CR-134, and upon a new

bill of information for one count of aggravated drug possession pursuant to R.C.

2925.11(A)(C)(1)(a), a felony of the fifth degree. The latter charge was docketed as

Fairfield County Court of Common Pleas case number 17-CR-219.
Fairfield County, Case Nos. 19-CA-21, 19-CA-22                                         3


       {¶6} Appellant admitted violating the terms of community control and entered a

plea of guilty to the new drug possession charge. In case number 15-CR-134, the trial

court ordered appellant to serve the balance of the 18-month prison term [Count III]. The

trial court further ordered that appellant would remain on community control for the

offense of child endangering [Count I].

       {¶7} In case number 17-CR-219, the trial court imposed a 3-year term of

community control to be served consecutively to the sentence in 15-CR-134. The trial

court ordered the 3-year term of community control to be tolled while appellant was in

prison and reserved the authority to order an 8-month term of imprisonment for a future

violation of the terms of community control.

       {¶8} On April 8, 2019, appellant again appeared before the trial court to admit

violating the terms of community control. The trial court thereupon imposed the reserved

12-month term [Count I, 15-CR-134] and the reserved 8-month term [17-CR-219] for a

total prison term of 20 months.

       {¶9} Appellant now appeals from the trial court’s “Entry Revoking Community

Control” of April 8, 2019 in case number 15-CR-134 and its “Entry Revoking Community

Control” of April 8, 2019 in case number 17-CR-219.

       {¶10} Appellant raises one assignment of error:

                              ASSIGNMENT OF ERROR

       {¶11} “THE TRIAL COURT ERRED IN IMPOSING A PRISON TERM AS A

SANCTION FOR VIOLATING COMMUNITY CONTROL WHERE THE SENTENCE

PLACING APPELLANT ON COMMUNITY CONTROL SANCTIONS WAS NOT

AUTHORIZED BY STATUTE AND WAS THEREFORE VOID.”
Fairfield County, Case Nos. 19-CA-21, 19-CA-22                                         4


                                      ANALYSIS

      {¶12} Appellant argues the trial court erred in imposing a community-control

sanction on one or more felony counts to be served consecutively to a term of

imprisonment imposed upon one or more other felony counts. We agree.

      {¶13} We begin by noting that appellee concedes the trial court erred in

sentencing appellant to a term of community control to be served consecutively to a term

of imprisonment in case numbers 15-CR-134 and 17-CR-219.

      {¶14} We previously approved sentences in which a trial court imposed

community control consecutive to a prison term. In State v. Hitchcock, we determined that

in a case in which a defendant is sentenced on three separate counts, a trial court may

impose two sixty-month prison terms, consecutive to each other (Counts I and II), and

consecutive to a term of community control (Count III). 5th Dist. Fairfield No. 16-CA-41,

2017-Ohio-8255, appeal accepted, 152 Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 877.

See also, State v. Williams, 5th Dist. Fairfield No. 17-CA-43, 2018-Ohio-4580, ¶

22, motion to certify allowed, 154 Ohio St.3d 1519, 2019-Ohio-768, 118 N.E.3d 257.

      {¶15} The Ohio Supreme Court has now overruled our decision, determining as

follows in State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, at ¶

24:

                    Because no provision of the Revised Code authorizes trial

             courts to impose community-control sanctions on one felony count

             to be served consecutively to a prison term imposed on another

             felony count, we must conclude that trial courts may not do so. We

             accordingly * * * conclude that unless otherwise authorized by
Fairfield County, Case Nos. 19-CA-21, 19-CA-22                                         5


                statute, a trial court may not impose community-control sanctions on

                one felony count to be served consecutively to a prison term imposed

                on another felony count.

       {¶16} Therefore, we conclude that in the instant case, the trial court was not

authorized to impose a term of community control consecutive to a term of imprisonment.

Appellant’s sentences are reversed and vacated, and this matter is remanded to the trial

court for further proceedings.

                                      CONCLUSION

       {¶17} Appellant’s sole assignment of error is sustained. We accordingly reverse

the judgment of the Fairfield County Court of Common Pleas and remand this case to the

trial court for resentencing consistent with this opinion. Hitchcock, supra, 2019-Ohio-

3246 at ¶ 25.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.
