[Cite as State v. Fullmer, 2019-Ohio-3556.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                    No. 18AP-824
v.                                                  :            (C.P.C. No. 08CR-3997)

Brent T. Fullmer,                                   :           (REGULAR CALENDAR)

                 Defendant-Appellant.               :


                                              D E C I S I O N

                                   Rendered on September 3, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
                 Swanson, for appellee. Argued: Valerie B. Swanson.

                 On brief: Yeura Venters, Public Defender, and George M.
                 Schumann, for appellant. Argued: George M. Schumann.

                   APPEAL from the Franklin County Court of Common Pleas

NELSON, J.
        {¶ 1} Many convicted felons argue that for any particular count, they should
receive a sentence of community control rather than prison. This is not such a case.
        {¶ 2} Rather, this case poses a question very recently addressed by the Supreme
Court of Ohio in State v. Hitchcock, __Ohio St.3d __, 2019-Ohio-3246. Although the lead
opinion there expressed in full the views of a single Justice, we understand that case to
direct that absent specific statutory authority, "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." Id. at ¶ 24. Believing ourselves bound by that rule even with
regard to a sentence imposed during the timeframe and under the circumstances described
below, we will reverse the community control sentences challenged here and remand to the
common pleas court for resentencing in accordance with law.
No. 18AP-824                                                                                 2

       {¶ 3} This matter relates back to sentencing decisions initially made in 2010,
notably (perhaps) during the post-Foster period during which statutes governing
consecutive sentences had been excised from the Code. In July of that year, the trial court
took up the sentencing of defendant Brent T. Fullmer, whose peripatetic record of
dishonesty over the previous decade and a half caused the judge to remark that "[i]t almost
looks like you're trying to go to prison in every state in the union." July 23, 2010 Sentencing
Proceedings at 16. Given the circumstances of the cases, the judge appears to have been
sorely tempted to send the defendant away to prison for many of the 26-plus years that the
various felony convictions in the three cases before him might have permitted. "It would
be real simple to add up the maximum sentences and send you away," the judge told Mr.
Fullmer. Id. at 21.
       {¶ 4} Instead, the judge sentenced Mr. Fullmer to a total of two years in prison
covering four felonies in two cases not at issue here, consecutive to concurrent sentences of
five years incarceration on each of two third-degree felony identity fraud counts under
Franklin C.P. No. 08CR-3997, to be followed by five years of community control for ten
additional counts in that case of identity fraud, forgery, and theft as fourth and fifth-degree
felonies. Id. at 16-19; July 30, 2010 Judgment Entry. Defense counsel had argued that Mr.
Fullmer's previous incarcerations had not given him "help that he has been so desperately
requesting," and the sentencing court was of the view that even though "the State and the
victim[s might] think I need my head examined for not just locking you up and throwing
away the key," such a decades'-long sentence would deprive victims of any chance at
restitution (as then ordered in the amount 0f $10,292).           July 23, 2010 Sentencing
Proceedings at 7-8, 21; July 30, 2010 Judgment Entry.
       {¶ 5} Mr. Fullmer did not appeal from that sentence. He was granted judicial
release from prison on July 26, 2016, with case terminations for time served on the two
one-year sentences and with 137 days left on his five-year term in Franklin C.P. No. 08CR-
3997. He also did not appeal from the five years of community control reasserted by the
trial court in conjunction with the judicial release. See July 25, 2016 Entry Granting
Judicial Release (with incorrect Franklin C.P. No. 08CR-4000); September 12, 2018 Nunc
Pro Tunc Entry Granting Judicial Release (correcting case number to 08CR-3997). In the
words of his counsel, he "subsequently absconded" (with conditions of his community
No. 18AP-824                                                                                3

control unfulfilled). August 14, 2018 Motion to Terminate Probation at 1. When eventually
brought back before the trial court, he was found to have violated the terms of his
community control, but the judge restored him to active community control under
intensive supervision with drug screening and employment requirements. The judge
denied his motion to terminate community control. October 23, 2018 Amended Entry.
       {¶ 6} Appealing from that denial, Mr. Fullmer's unflinching position is that the
community control sentences "on counts 3 through 12 must be vacated and the matter
remanded for resentencing on counts 3 through 12"—with no option of community control
on the table for those ten felonies. Appellant's Brief at 20. His current position is informed
by his view that he may "collaterally attack his community control sanction as contrary to
law" and therefore void. Id. at 6. Echoing an argument that now appears to have been
adopted by the Supreme Court in Hitchcock, he posits a single assignment of error: "The
trial court erred in denying the defendant-appellant's motion to vacate his community
control sanction that was ordered consecutive to his prison term, because the community
control sanction was contrary to law, since there is no statutory authority to impose a
community control sanction consecutive to a prison term." Id. at 1.
       {¶ 7} Urging that res judicata does not bar his attempt to have us revisit the never-
appealed 2010 sentence, Mr. Fullmer invokes State v. Williams, 148 Ohio St.3d 403, 2016-
Ohio-7658, ¶ 22 (citation omitted): "Our jurisprudence on void sentences 'reflects a
fundamental understanding of constitutional democracy' that the power to define criminal
offenses and prescribe punishment is vested in the legislative branch of government and
that courts may impose sentences only as provided by statute. Because '[n]o court has the
authority to impose a sentence that is contrary to law,' when the trial court disregards
statutory mandates, '[p]rinciples of res judicata, including the doctrine of the law of the
case, do not preclude appellate review. The sentence may be reviewed at any time, on direct
appeal or by collateral attack.' " We take the point, and find that the sentence does not
withstand Hitchcock.
       {¶ 8} No one argues to us that the counts on which Mr. Fullmer received
community control sentences, standing alone, called for mandatory prison terms. By the
same token, no one has argued that Mr. Fullmer was not eligible for prison on any of the 12
counts in the case at issue. And Mr. Fullmer was indeed familiar with prison. As
No. 18AP-824                                                                                4

summarized by the sentencing judge, his record from 1996 through 2008 included prison
terms for forgery, bad checks, and theft in Lincoln, Nebraska; for theft in Seattle,
Washington; for transport of a stolen vehicle, trafficking in counterfeit devices, and a
scheme to defraud in Billings, Montana; for credit card fraud in Safford, Arizona; for "access
device fraud" in Western Berks, Pennsylvania; for bad checks and theft in Shillington,
Pennsylvania and then theft in South Heidelberg, Pennsylvania; and for theft or forgery in
Franklin County, Tennessee. But he also seems to have served lesser sentences of jail or
other probation for larceny in Jackson, Wyoming; for theft in Redmond, Washington; and
for theft in Cumbru Township, Pennsylvania.
       {¶ 9} Mr. Fullmer's position, now supported by Hitchcock as it had been by certain
but by no means all earlier court of appeals decisions in our state, is that having served
prison time on other counts in this case (roughly equating in duration to the five-year
maximum of total community control terms, see R.C. 2929.15(A)), his community control
sentences on the rest are void as consecutive to the imprisonment, and resentencing is
required. Appellant's Brief at 20. (We do note that the Supreme Court has made clear that
there is no bar to a sentence of community control on one count running concurrently to
and extending beyond a prison sentence on another count of less than the five-year
community control total. State v. Paige, 153 Ohio St.3d 214, 2018-Ohio-813 [also holding
that current R.C. 2929.41(A) precludes CBCF term from running consecutively to prison
term, absent specific statutory authorization—a point that seems to have been overtaken by
events and so not raised here with regard to Mr. Fullmer's original sentence]. In light of
Hitchcock, Paige's concurrent sentencing analysis is not relevant to Mr. Fullmer's
consecutive sentences.)
       {¶ 10} We think that Hitchcock's rule bears out his position, notwithstanding that
his sentence was imposed during a time in which what Hitchcock calls the "default" position
favoring concurrent sentences overall was not nearly so clear. We have considered that
when Mr. Fullmer was sentenced in 2010, statutory constraints on consecutive terms of
imprisonment as specified by R.C. 2929.41 and 2929.14(E)(4) [now (C)(4)] had been
"excised in their entirety" by the subsequently vitiated case of State v. Foster, 109 Ohio St.
3d 1, 2006-Ohio-856, ¶ 97.
No. 18AP-824                                                                                 5

       {¶ 11} During that relatively brief interregnum before the reenactment of various
statutes that dated in concept to the 1995 sentencing overhaul, it would have been
understandable for courts and litigants alike to assume that absent some express statutory
preclusion, sentencing judges did have the authority to impose consecutive prison terms on
separate counts in felony cases, consistent with legislatively specified purposes and
principles of sentencing and legislatively ordained, defined, and limited sanctions for the
crimes at issue. For example, in State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983,
superseded by statute, the Supreme Court held that in the aftermath of Foster and without
legislative guidance as to the imposition of consecutive sentences—that is, with "no statute
to establish in the circumstances before us presumptions for concurrent and consecutive
sentencing or to limit trial court discretion [there] beyond the basic 'purposes and
principles of sentencing,' " id. at ¶ 18—then, "[o]nce the legislature has defined the crime
and has established the punishment that the trial court is to impose through its sentencing
authority," and absent some statutory preclusion " 'it is a matter solely within the discretion
of the sentencing court as to whether sentences shall run consecutively or concurrently,' "
id. at ¶ 13 (citations omitted). See also, e.g., State v. Elmore, 122 Ohio St.3d 472, 2009-
Ohio-3478 (trial court not required in post-Foster regime to impose concurrent sentences);
State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, ¶ 14, 38 (supplanted by later statute
reimposing factfinding requirements) (noting that pursuant to rulings including Foster,
judicial factfinding then was not required for imposition of consecutive sentences; that
"many defendants in Ohio have been sentenced by trial judges who have exercised their
discretion to impose consecutive sentences without applying any of the statutes severed in
Foster, including those regarding consecutive sentencing"; and that then-recent authority
from the United States Supreme Court would permit Ohio's legislature to reestablish
judicial factfinding criteria for imposition of consecutive prison sentences); State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 2, 4, 22 (noting that after Foster, "judges
had discretion to impose consecutive sentences," and that effective in 2011, General
Assembly reenacted factfinding requirements for consecutive prison terms, citing R.C.
2929.14(C)(4)).
       {¶ 12} But while a background presumption in favor of concurrent sentences might
have been more difficult to discern at the time of the 2010 sentence, Hitchcock teaches that
No. 18AP-824                                                                              6

the legislature did specify that principle (with regard to terms of imprisonment, at least)
both before and after that time. And the lead opinion in Hitchcock also recites that the
"general principle is consistent with the rule of lenity, R.C. 2901.04(A)." 2019-Ohio-3246,
¶ 21. The lenity rule applied in 2010 through the same terms in which it is expressed today
(although we hasten to say that we understand Hitchcock to apply simply to the question
that it addresses of whether community control sanctions may be imposed to run
consecutive to prison terms). We also read Hitchcock to say that R.C. 2929.13(A) (as
applicable in 2010), with its allowance of "any sanction or combination of [specified
community control or prison] sanctions" for a sentence, does not itself authorize
consecutive terms. See id. at ¶ 23. Therefore, and in light also of concurring opinions in
Hitchcock reasoning that a defendant at the time of sentence "cannot be both amenable and
not amenable" to community control on different counts, id. at ¶ 27 (Donnelly, J.,
concurring), and that judicial discretion to impose community control on one count
consecutive to prison on another "does not exist," id. at ¶ 35 (Stewart, J., concurring), we
are obliged to find that the trial court could not properly sentence Mr. Fullmer to
community control consecutive to his sentence in this case of five years in prison.
       {¶ 13} Sustaining Mr. Fullmer's assignment of error, we do as he has requested and
remand this case to the Franklin County Court of Common Pleas to vacate the community
control sentences on counts 3 through 12 and to resentence him on those counts consistent
with this decision and in accordance with law.
                            Judgment reversed in part; case remanded with instructions
                      KLATT, P.J. and BEATTY BLUNT, J., concur.
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