[Cite as State v. Rutschilling, 2017-Ohio-9252.]




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


STATE OF OHIO,
                                                        CASE NO. 10-17-06
       PLAINTIFF-APPELLEE,

       v.

AARON N. RUTSCHILLING,                                  OPINION

       DEFENDANT-APPELLANT.


STATE OF OHIO,
                                                        CASE NO. 10-17-07
       PLAINTIFF-APPELLEE,

       v.

AARON N. RUTSCHILLING,                                  OPINION

       DEFENDANT-APPELLANT.


                  Appeal from Mercer County Common Pleas Court
                     Trial Court No. 15-CRM-061, 14-CRM-060

                           Judgments Reversed and Remanded

                           Date of Decision: December 26, 2017


APPEARANCES:

        Bryan Scott Hicks for Appellant

        Matthew J. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-17-06 and 10-17-07


WILLAMOWSKI, J.

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

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

revoking his community control and judicial release and sentencing him to prison.

Rutschilling challenges the consecutive nature of the sentences and the effectiveness

of his trial counsel. For the reasons set forth below, the judgments are reversed.

        {¶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. ADoc. 61. The case was assigned

the number 14-CRM-060. Id. 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. ADoc. 39. On January 7, 2015, the State filed a bill of information in case

number 14-CRM-060 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. ADoc. 40. On March 25, 2015, Rutschilling and the

State entered into a negotiated plea agreement. ADoc. 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



1
 As there are two cases appealed, the docket in case number 14-CRM-060 will be identified as “ADoc.” The
docket in case umber 15-CMR-061 will be identified as “BDoc.”

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Case No. 10-17-06 and 10-17-07


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 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. ADoc. 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} While Rutschilling was awaiting sentencing, the State filed a bill of

information in case no. 15-CRM-061 alleging that Rutschilling had illegally

conveyed a drug of abuse onto the grounds of a governmental facility in violation

of R.C. 2921.36(A)(2); (G)(2), a felony of the third degree. BDoc. 5. Rutschilling

consented to being charged by the bill of information and entered a plea of guilty.

BDoc. 14. This plea was made pursuant to a negotiated plea agreement in which

Rutschilling agreed to enter a plea of guilty and the State agreed not to oppose

Community Control Sanctions including a residential sanction at the W.O.R.T.H.

Center. BDoc. 15. On May 6, 2015, the trial court held a hearing on the charge.



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Case No. 10-17-06 and 10-17-07


BDoc. 18. Rutschilling entered a plea of guilty in accord with the agreement and

the trial court accepted the plea. Id. The matter was continued for sentencing. Id.

       {¶4} On May 27, 2015, a sentencing hearing was held on both cases. ADoc.

101 and BDoc. 24.       In case number 14-CRM-060, the trial court sentenced

Rutschilling to a term of community control for up to three years. ADoc. 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. In case number 15-CRM-061, the trial court sentenced Rutschilling to a term of

community control of up to three years. BDoc. 24. Rutschilling was informed that

a violation of the sanctions could result in a prison term of 30 months. Id. at 6. No

discussion was held as to whether this sentence would be concurrent or consecutive

to the others.

       {¶5} On November 3, 2015, the State filed a notice of failure to comply with

community control sanctions in case number 15-CRM-061. BDoc. 37. The notice

alleged that Rutschilling had been unsuccessfully terminated from the W.O.R.T.H.

Center. Id. A hearing was held on November 18, 2015, at which Rutschilling

admitted to the violation. BDoc. 55. As a result of the violation, the trial court

sentenced him to 30 months in prison. BDoc. 60. The trial court also tolled the

community control sanctions imposed in 14-CRM-60 due to the prison term being

imposed. ADoc. 108.

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Case No. 10-17-06 and 10-17-07


        {¶6} On June 14, 2016, Rutschilling filed a motion for judicial release in case

number 15-CRM-061. BDoc. 72. A hearing was held on the motion on July 20,

2016. BDoc. 85. The trial court then granted the motion for judicial release and

imposed community control sanctions for up to three years. Id. The trial court

informed Rutschilling that a violation of the sanctions could result in imposition of

the balance of his prison term. Id. No discussion about the sentences in case number

14-CRM-060 occurred at this hearing.

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

community control sanctions in both case number 14-CRM-060 and 15-CRM-061.2

ADoc. 119 and BDoc. 92. 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.

ADoc. 134 and BDoc. 105. Rutschilling admitted the violations and the matter was

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

hearing the trial court sentenced Rutschilling as follows.

        In this case, [the decision whether to order the sentence in 15-
        CRM-191 to be served consecutive or concurrent to the others is]
        an academic decision, because I’m willing to at least follow the
        recommendation from the defense, that’s not opposed by the
        State, and impose a concurrent sentence, so the consequence,
        what I consider the principles and purposes of sentencing, the
        prior criminal history, the attempts at rehabilitation, the prior
        prison sentence, and the judicial release, is [sic] order that 22
        months in 14-CR-60, order the 30 months in 15-CR-61, those to

2
 There was also a third case number 15-CRM-191 which was ordered to be served concurrently. That case
was not appealed and will not be addressed by this court.

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Case No. 10-17-06 and 10-17-07


         be served consecutive to each other. And then 11 months in 15-
         CRM-191 to be served concurrent with the two consecutive
         sentences, so that takes it then to 52-month total sentence, with
         credit for what we think today is 506 days jail time previously
         served.

Apr. 12, 2017, Tr. 5-6. After a discussion with the State, the time served was

adjusted to be 529 days. Id. at 7. No other discussion regarding the sentence

imposed was held on the record.3 On May 24, 2017, Rutschilling filed notices of

appeal in 14-CRM-060 and 15-CRM-061. ADoc. 147 and BDoc. 118. The appeals

were consolidated. On appeal, Rutschilling raises the following assignments of

error.

                                    First Assignment of Error

         The reimposition [sic] of the prison term as consecutive sentence
         was invalid.

                                  Second Assignment of Error

         The imposition of consecutive sentences was invalid.

                                   Third Assignment of Error

         Trial counsel provided ineffective assistance of counsel which
         harmed [Rutschilling].

                        Violation of Judicial Release Sentence

         {¶8} In the first assignment of error, Rutschilling alleges that the trial

court erred in re-imposing his sentence for judicial release consecutive to that



3
 The trial court noted that there were extensive discussions held in chambers, but those discussions were not
put on the record. Tr. at 3.

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Case No. 10-17-06 and 10-17-07


for violation of the community control sanctions. This court has previously

held that judicial release sanctions and community control sanctions are not

the same. State v. Jones, 3d Dist. Mercer Nos. 10-07-26, 10-07-27, 2008-

Ohio-2117.

       “The rules dealing with a violation of an original sentence of
       community control (R.C. 2929.15) should not be confused with the
       sections of the Revised Code regarding early judicial release (R.C.
       2929.20) even though the language of R.C. 2929.20(I) contains the
       term ‘community control’ in reference to the status of an offender
       when granted early judicial release.” State v. Alexander, 3d Dist.
       No. 14-07-45, 2008-Ohio-1485, ¶ 7, quoting State v. Mann, 3d Dist.
       No. 3-03-42, 2004-Ohio-4703, ¶ 6. Under R.C. 2929.15, a
       defendant’s original sentence is community control and he will
       not receive a term of incarceration unless he violates the terms of
       his community control, * * * whereas, when a defendant is
       granted judicial release under R.C. 2929.20, he “has already
       served a period of incarceration, and the remainder of that prison
       sentence is suspended pending either the successful completion of
       a period of community control or the defendant’s violation of a
       community control sanction.” Alexander, 2008-Ohio-1485, at ¶ 7,
       quoting Mann, 2004-Ohio-4703, at ¶ 8 citing R.C. 2929.20(I).

Jones, supra at ¶ 12. If a trial court grants a motion for judicial release, the offender

is placed under appropriate community control sanctions. R.C. 2929.20(I). The

trial court then reserves the right to re-impose the remainder of the prison term

originally imposed if the offender violates the sanctions. Id. “If the court [re-

imposes] the reduced sentence pursuant to this reserved right, it may do so either

concurrently with or consecutive to, any new sentence imposed upon the eligible

offender as a result of the violation that is a new offense.” Id. The trial court does

not have the authority to alter the original sentence except it may impose the

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Case No. 10-17-06 and 10-17-07


sentence consecutively to a new sentence imposed as a result of the judicial release

that was a new criminal offense. See Jones, supra; State v. Smith, 3d Dist. Union

No. 14-06-15, 2006-Ohio-5972, ¶ 13; State v. McConnell, 143 Ohio App.3d 219,

2001-Ohio-2129, 757 N.E.2d 1167 (3d Dist.). “It is error for a trial court, after

revoking judicial release, to impose a greater or lesser sentence than the original

sentence.” State v. Thompson, 3d Dist. Crawford Nos. 3-16-01, 3-16-12, 2016-

Ohio-8401, ¶ 13.

        {¶9} In this case, the original sentence was 30 months in prison. This

sentence was not ordered to be served consecutive to any sentence. Although the

violations of Rutschilling’s community control sanctions issued upon his judicial

release could potentially have constituted new criminal offenses, sentences for those

violations were not the ones that were ordered to be served consecutively. The

judicial release violation was ordered to be served consecutive to a community

control violation in an old case. R.C. 2929.20(I) does not allow the original sentence

to be altered by being served consecutive to old cases, only new offenses. Thus, the

trial court erred by ordering the sentence for the violation of the judicial release to

be served consecutive to the sentences for the violations of community control

violations in old cases.4 The first assignment of error is sustained.



4
  The statute does not speak to whether a prison term imposed for a violation of community control sanctions
may be ordered to be served consecutive to the re-imposition of a prison term for a violation of judicial
release. This court does not address whether the trial court could run the sentences in 14-CRM-060
consecutive to the re-imposition of the sentence for the violation of judicial release in 15-CRM-061 as that
issue is not before us on appeal.

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Case No. 10-17-06 and 10-17-07


               Imposition of Consecutive Sentences in 14-CRM-060

       {¶10} Rutschilling claims in the second assignment of error that the trial

court erred in imposing consecutive sentences in 14-CRM-060.

       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 [R.C. 2929.16, 2929.17, or 2929.18]
       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 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.

R.C. 2929.14(C)(4). Before a trial court can impose consecutive sentences as a

result of a community control violation, it must comply with the sentencing

requirements of R.C. 2929.14(C). State v. Duncan, 12th Dist. Butler Nos. CA2015–

05–086, CA2015–06–108, 2016-Ohio-5559, 61 N.E.3d 61, ¶41-42.                  “When

imposing consecutive sentences, a trial court must state the required findings as part


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Case No. 10-17-06 and 10-17-07


of the sentencing hearing, and by doing so it affords notice to the offender and to

defense counsel.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-2177, ¶ 29, 16

N.E.3d 659. The failure to make the findings at the hearing cannot be corrected by

making them in the journal entry. Id. at ¶ 30.

       {¶11} A review of the record in this case shows that the trial court did not

make any findings pursuant to R.C. 2929.14(C) at the sentencing hearing for the

violation of the community control sanctions and terms of the judicial release.

Instead the trial court merely stated that it had considered “the principles and

purposes of sentencing, the prior criminal history, the attempts at rehabilitation, the

prior prison sentence, and the judicial release, is [sic] order that 22 months in 14-

CR-60, order the 30 months in 15-CR-61, those to be served consecutive to each

other.” Apr. 12, 2017 Tr. at 5. The trial court failed to specifically address any of

the factors required by R.C 2929.14(C). While there may have been sufficient

credible evidence from which the trial court could have made the findings, it did not

do so. The statute and the holdings of the Ohio Supreme Court mandate that the

trial court make all of the enumerated findings at the sentencing hearing. R.C.

2929.14(C)(4) and Bonnell, supra. The trial court did not do so in this case. Thus,

the second assignment of error is sustained.

                          Ineffective Assistance of Counsel

       {¶12} In the third assignment of error, Rutschilling claims he was denied the

effective assistance of counsel at the sentencing on the violations. As this court has

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Case No. 10-17-06 and 10-17-07


found error in the sentencing, the matter will be remanded for resentencing. The

actions of counsel in the original hearing are thus moot and need not be reviewed

by this court. App.R. 12(A)(1)(c).

       {¶13} Having found error in the particulars assigned and argued, the

judgments of the Court of Common Pleas of Mercer County are reversed and the

matter is remanded for further proceedings in accord with this opinion.

                                                             Judgments Reversed
                                                                 And Remanded
PRESTON, P.J. and SHAW, J., concur.

/hls




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