[Cite as State v. Fisher, 2013-Ohio-2081.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
    Plaintiff - Appellee                     :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
WILLIAM CHARLES FISHER                       :       Case No. 2012CA00031
                                             :
    Defendant - Appellant                    :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case Nos.
                                                     2011CR0688 and 2011CR0674



JUDGMENT:                                            REVERSED AND REMANDED




DATE OF JUDGMENT:                                    May 13, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      AARON KOVALCHIK
Prosecuting Attorney                                 116 Cleveland Avenue N.W.
By: RONALD MARK CALDWELL                             Suite 808
Assistant Prosecuting Attorney                       Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, Oh 44702
Stark County, Case No. 2012CA00031                                                         2

Delaney, J.

       {¶1} Defendant-Appellant William Charles Fisher appeals the November 21,

2011 judgment entries revoking Fisher’s community control sanctions and sentencing

Fisher to 56 months in prison. Plaintiff-Appellee is the State of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The facts of this case involve two criminal cases.                In Case No.

2011CR0674, Fisher was charged with four counts of trafficking in cocaine in violation

of R.C. 2925.03(A)(1)(c)(4)(a), felonies of the fifth degree. Fisher pleaded guilty to the

charges. On July 28, 2011, the trial court sentenced Fisher to five years community

control. The sentencing entry stated, “[v]iolation of any condition of this sentence shall

lead to either a more restrictive sanction, a longer sanction, or a prison term of forty-four

(44) months.”

       {¶3} In Case No. 2011CR0688, Fisher was charged with two counts of

domestic violence.     The first count was a third degree felony in violation of R.C.

2919.25(A) and the second count was a fifth degree felony in violation of R.C.

2919.25(A). Fisher entered a plea of guilty to Count One and the State dismissed

Count Two.      On July 29, 2011, the trial court sentenced Fisher to five years of

community control. The entry stated, “[v]iolation of any condition of this sentence shall

lead to either a more restrictive sanction, a longer sanction, or a prison term of thirty-six

(36) months.”

       {¶4} On October 13, 2011, Fisher’s probation officer filed a Motion to Revoke

Probation or Modify Former Order in both criminal cases.           A hearing was held on

November 14, 2011. At the hearing, the State informed the trial court:
Stark County, Case No. 2012CA00031                                                       3


             “Prior to today, Your Honor, the Defendant did contact the Canton

      Police Department and provided us with information in regards to a

      pending homicide trial that the State deems extremely important.

             As a result of that, the State of Ohio is here today to ask the Court

      to – first of all, there is going to be a stipulation from the Defendant that he

      violated the probation or the community control in both cases.

             That upon that stipulation, the State of Ohio is going to ask the

      Court to Case Number 2011-CR-0674 to reduce the Defendant’s total

      sentence to 44 months by 24 months so that he would have a 20-month

      sentence; to keep the sentence in 2011-CR-0688 the same which is 36

      months so that the Defendant would be serving a total of 56 months in the

      state penitentiary and receive credit for time served.

             To that extent I have in my hand a document signed by Mr. Fisher

      that says he is the Defendant in Case Number 2011-CR-0674. He agrees

      to testify truthfully in any and all proceedings, including but not limited to

      the trial in Case Number 2011-CR-1240C.

             In exchange for his truthful testimony at all proceedings, he

      understands the State of Ohio will reduce my total sentence in the amount

      of 24 months. He further understands and agrees that should he fail to

      testify truthfully as required by this agreement, it can be voided by the

      State of Ohio, and his full sentence can be reimposed, and it bears his

      signature, Your Honor.”

(Nov. 14, 2011 Hearing, T. 3-5).
Stark County, Case No. 2012CA00031                                                   4


      {¶5} The trial court clarified that the 80 months Fisher was originally sentenced

to was reduced by agreement to 24 months, so that the amount of prison time was 56

months. (T. 15). Counsel for Fisher agreed. (T. 16). The Agreement to Testify was

admitted as Exhibit 1 and filed under Case No. 2011CR0674 on December 6, 2011.

      {¶6} The trial court sentenced Fisher as follows:

             Mr. Fisher, it is the sentence of this court in regard to Case Number

      2011-CR-0674, as I have previously stated to you, I am sentencing you to

      a 10-month prison term in regard to each of the felonies of the fifth

      degree.

             First and second count I am running those consecutively with each

      other. In regard to Counts 4 and 5, I am running those concurrently with

      Counts 1 and 2; to the end that you have a 20-month prison term in regard

      to 2011-CR-0674.

             In regard to 2011-CR-0688 in regard to the single remaining

      charge, which is a felony of the third degree, I am sentencing you to a 36-

      month prison term. That is to be run consecutively with the 20 months

      that you received in Case Number 2011-CR-0674; to the end that you

      have a 56-month prison term.

(Nov. 14, 2011, T. 16-17).

      {¶7} The sentences were journalized on November 21, 2011. It is from these

judgment entries Fisher now appeals.
Stark County, Case No. 2012CA00031                                                       5


                              ASSIGNMENTS OF ERROR

       {¶8} Fisher raises two Assignments of Error as to his November 21, 2011

sentencing:

       {¶9} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO FOLLOW RC

2929.14 BY ORDERING APPELLANT TO SERVE CONSECUTIVE SENTENCES."

       {¶10} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO FOLLOW RC

2929.41 BY ORDERING APPELLANT TO SERVE CONSECUTIVE SENTENCES."

                                       ANALYSIS

                                           I., II.

       {¶11} We consider Fisher’s two Assignments of Error together because they are

interrelated.   Fisher claims the trial court erred in imposing consecutive sentences

without engaging in judicial fact-finding as required by H.B. No. 86. We agree.

       {¶12} Effective September 30, 2011, R.C. 2929.14 was amended by H.B. No.

86. Section 4 of H.B. No. 86 provides that it “appl[ies] to a person who commits an

offense * * * on or after the effective date of this section and to a person to whom

division (B) of section 1.58 of the Revised Code makes the amendments applicable.”

R.C. 1.58(B) states: “If the penalty, forefeiture, or punishment for any offense is reduced

by a reenactment or amendment of a statute, the penalty, forefeiture, or punishment, if

not already imposed, shall be imposed according to the statute as amended.”

       {¶13} Fisher’s offenses were committed prior to the effective date of H.B. 86.

Fisher pleaded guilty to the offenses and the trial court imposed community control

sanctions. The sentencing entry in Case No. 2011CR0674 stated, “[v]iolation of any

condition of this sentence shall lead to either a more restrictive sanction, a longer
Stark County, Case No. 2012CA00031                                                           6


sanction, or a prison term of forty-four (44) months.” The sentencing entry in Case No.

2011CR0688 stated, “[v]iolation of any condition of this sentence shall lead to either a

more restrictive sanction, a longer sanction, or a prison term of thirty-six (36) months.”

       {¶14} Fisher’s probation officer filed a Motion to Revoke on October 13, 2011

and a sentencing hearing was held on November 14, 2011.               Fisher stipulated he

violated the terms of his community control sanctions and the trial court ordered the

community control sanctions be revoked and the prison term imposed. The trial court

sentenced Fisher in Case No. 2011CR0674 to 10 months on each count of Trafficking

in Cocaine, four counts.     Fisher was to serve Counts One and Two consecutively;

Counts Three and Four concurrently; and consecutive to Case No. 2011CR0688 for a

total sentence of 56 months. In Case No. 2011CR0688, the trial court sentenced Fisher

to a prison term of 36 months on one count of Domestic Violence.

       {¶15} Three appellate districts have recently held that a prison term is not

imposed until the offender’s community control is revoked. State v. Nistelbeck, 10th

Dist. No. 11AP-874, 2012-Ohio-1765; State v. West, 2nd Dist. No. 24998, 2012-Ohio-

4615; State v. Marshall, 6th Dist. No. E-12-022, 2013-Ohio-1481. The basis for so

holding rests upon the language of R.C. 2929.19(B)(5) [now subsection R.C.

2929.19(B)(4)] and the Ohio Supreme Court’s decision in State v. Brooks, 103 Ohio

St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837.

       {¶16} R.C. 2929.19(B)(4) states:

       If the sentencing court determines at the sentencing hearing that a

       community control sanction should be imposed and the court is not

       prohibited from imposing a community control sanction, the court shall
Stark County, Case No. 2012CA00031                                                       7


       impose a community control sanction. The court shall notify the offender

       that, if the conditions of the sanction are violated, if the offender commits a

       violation of any law, or if the offender leaves this state without the

       permission of the court or the offender's probation officer, the court may

       impose a longer time under the same sanction, may impose a more

       restrictive sanction, or may impose a prison term on the offender and shall

       indicate the specific prison term that may be imposed as a sanction for the

       violation, as selected by the court from the range of prison terms for the

       offense pursuant to section 2929.14 of the Revised Code.

The Ohio Supreme Court in Brooks held that based upon this language, the trial court is

required, at sentencing, to “notify the offender of the specific prison term that may be

imposed for a violation of the conditions of the sanction, as a prerequisiste to imposing

a prison term on the offender for a subsequent violaton.” State v. Marshall, 2013-Ohio-

1481, ¶ 10 citing Brooks, supra, paragraph two of the syllabus.

       {¶17} “Ultimately, the Tenth District held that a prison term applicable only upon

a defendant's violation of community control is not actually imposed until community

control is revoked. Nistelbeck at ¶ 10. Subsequently, the Second District examined the

decision in Nistelbeck and reached the same result. West at ¶ 14.” Marshall at ¶ 11.

The Sixth District also followed Nistelbeck because the trial court in its case stated the

defendant’s prison term “would be imposed” if the community control sanctions were

violated. The conditional language used by the trial court supported the conclusion the

prison term was not actually imposed until the community control sanctions were

revoked, which was after the effective date of H.B. No. 86. Marshall at ¶ 12.
Stark County, Case No. 2012CA00031                                                     8


       {¶18} In our case, the trial court stated in both cases a “[v]iolation of any

condition of this sentence shall lead to either a more restrictive sanction, a longer

sanction, or a prison term * * *.”      (Emphasis added.)      The use of the conditional

language by the trial court supports our agreement with the holdings of Nistelbeck,

West, and Marshall that Fisher’s prison terms were not imposed until Fisher’s

community control sanctions were revoked.           The prison terms were imposed on

November 21, 2011, after the effective date of H.B. No 86.

       {¶19} H.B. No 86 amended subsection (E)(4) of R.C. 2929.14 [now subsection

(C)(4) ] and subsection (A) of R.C. 2929.41, effective September 30, 2011, and now

state the following, respectively:

       (C)(4) If 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 if the court finds that the consecutive service is

       necessary to protect the public from future crime or to punish the offender

       and that consecutive sentences are not disproportionate to the

       seriousness of the offender's conduct and to the danger the offender

       poses to the public, and if the court also finds any of the following:

              (a) The offender committed one or more of the multiple offenses

       while the offender was awaiting trial or sentencing, was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

       Code, or was under post-release control for a prior offense.

              (b) At least two of the multiple offenses were committed as part of

       one or more courses of conduct, and the harm caused by two or more of
Stark County, Case No. 2012CA00031                                                       9


      the multiple offenses so committed was so great or unusual that no single

      prison term for any of the offenses committed as part of any of the courses

      of conduct adequately reflects the seriousness of the offender's conduct.

             (c) The offender's history of criminal conduct demonstrates that

      consecutive sentences are necessary to protect the public from future

      crime by the offender.

      (A) Except as provided in division (B) of this section, division (E) of section

      2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a

      prison term, jail term, or sentence of imprisonment shall be served

      concurrently with any other prison term, jail term, or sentence of

      imprisonment imposed by a court of this state, another state, or the United

      States. Except as provided in division (B)(3) of this section, a jail term or

      sentence of imprisonment for misdemeanor shall be served concurrently

      with a prison term or sentence of imprisonment for felony served in a state

      or federal correctional institution.

      {¶20} Pursuant to R.C. 2929.14, as revised by H.B. 86 in effect at the time of

sentencing herein, the trial court was required to make the statutorily required findings

prior to imposing consecutive sentences. The trial court is not required to recite any

“magic” or “talismanic” words when imposing consecutive sentences provided it is “clear

from the record that the trial court engaged in the appropriate analysis.”         State v.

Fauntleroy, 5th Dist. No. CT2012-0001, 2012-Ohio-4955, ¶ 7 citing State v. Murrin, 8th

Dist. No. 83714, 2004–Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C–

110603, 2012–Ohio–2075, ¶ 22. In this case, our review of the sentencing hearing
Stark County, Case No. 2012CA00031                                                  10


demonstrates the trial court did not make the requisite findings.       We reverse the

November 21, 2011 judgment entries and remand the matter for limited purpose of

resentencing.

       {¶21} The State argues this Court is without jurisdiction to consider Fisher’s

appeal of his sentencing because the sentence was the result of an agreed upon

sentence. Fisher signed an “Agreement to Testify” wherein the State agreed to reduce

Fisher’s total sentence by the amount of 24 months.           The State contends the

“Agreement to Testify” is within the purview of R.C. 2953.08(D)(1) which states:

       A sentence imposed upon a defendant is not subject to review under this

       section if the sentence is authorized by law, has been recommended

       jointly by the defendant and the prosecution in the case, and is imposed

       by a sentencing judge.

       {¶22} The Ohio Supreme Court in State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, held that under R.C. 2953.08(A), a sentence that is

“contrary to law” is appealable by a defendant. Id. at ¶ 16. “A sentence is ‘authorized

by law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it

comports with all mandatory sentencing provisions.”       Id. at paragraph two of the

syllabus.

       {¶23} In this case, the trial court failed to make the statutorily enumerated

findings pursuant to the requirements of R.C. 2929.14 in imposing consecutive

sentences upon Fisher.     The requirements imposed by H.B. No. 86 are applicable

because Fisher’s community control was revoked and the prison term was imposed

after the effective date of H.B. 86. Accordingly, we cannot say the sentence comports
Stark County, Case No. 2012CA00031                                                  11


with all mandatory sentencing provisions therefore making Fisher’s sentence

appealable under R.C. 20953.08(A).

      {¶24} Accordingly, Fisher’s first and second Assignments of Error are sustained.

                                     CONCLUSION

      {¶25} The November 21, 2011 sentencing entries of the Stark County Court of

Common Pleas are reversed and the matter is remanded to the trial court for

resentencing pursuant to this Opinion and law.

By Delaney, J.

Gwin, P.J. and

Baldwin, J. concur.




                                           _______________________________



                                           _______________________________



                                           _______________________________

                                                           JUDGES



PAD/kgb
                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :       JUDGMENT ENTRY
                                        :
WILLIAM CHARLES FISHER                  :
                                        :
       Defendant-Appellant              :       CASE NO. 2012CA00031


       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is reversed and the

matter remanded. Costs to Appellee.




                                        _______________________________



                                        _______________________________



                                        _______________________________

                                                        JUDGES
