[Cite as State v. Murphy, 2020-Ohio-453.]


                                       COURT OF APPEALS
                                    RICHLAND 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-                                        :
                                            :
AUDIE MURPHY,                               :       Case No. 2019 CA 0066
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Richland County
                                                    Court of Common Pleas, Case No.
                                                    2018-CR-29




JUDGMENT:                                           Reversed and Remanded



DATE OF JUDGMENT:                                   February 10, 2020



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

GARY BISHOP                                         DARIN AVERY
Prosecuting Attorney                                105 Sturges Avenue
Richland County                                     Mansfield, Ohio 44903


By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0066                                               2


Baldwin, J.

       {¶1}   Defendant-appellant Audie Murphy appeals his sentence from the Richland

County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 17, 2018, the Richland County Grand Jury indicted appellant

on one count of theft from a person in a protected class in violation of R.C. 2913.02(A)(1)

and (B)(3), a felony of the fifth degree, and one count of theft from a person in a protected

class in violation of R.C. 2913.02(A)(1) and (B)(3), a felony of the third degree. At his

arraignment on September 25, 2018, appellant entered a plea of not guilty to the charges.

Appellant was appointed counsel.

       {¶3}   On November 5, 2018, appellant’s counsel filed a Motion to Withdraw.

Pursuant to an Entry filed on November 7, 2018, the motion was granted and new counsel

was appointed. On January 10, 2019, a bench warrant was issued for appellant’s arrest

after his bond was revoked. Appellant was arrested shortly thereafter. On February 27,

2019, appellant was released due to jail overcrowding. Another bench warrant was issued

for appellant’s arrest after his bond was revoked.

       {¶4}   As memorialized in a Judgment Entry filed on April 16, 2019 appellant

entered a plea of guilty to both counts. Sentencing was scheduled for June 3, 2019 and

was later rescheduled to June 10, 2019. After appellant failed to appear for sentencing,

a bench warrant was issued. On June 28, 2019, appellant appeared with counsel and

was sentenced to twelve months on Count One and to a sentence of thirty-six months of

community control on Count Two. At the sentencing hearing, appellant’s counsel had

argued that the two offenses were allied offenses of similar import. The trial court, in its
Richland County, Case No. 2019 CA 0066                                                 3


July 2, 2019 Entry, ordered that the thirty-six months of community control was “to begin

after prison term.”

       {¶5}   Appellant now appeals, raising the following assignments of error on

appeal:

       {¶6}   “I. THE TRIAL COURT ERRED BY FAILING TO MERGE THE ALLIED

OFFENSES OF SIMILAR IMPORT CONTRARY TO R.C. 2941.25(A).”

       {¶7}   “II. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING AN

ELEVATED SENTENCE FOR MR. MURPHY’S FAILURE TO APPEAR AT HIS

ORIGINAL SENTENCING DATE.”

                                              I

       {¶8}   Appellant, in his first assignment of error, argues that the trial court erred in

failing to merge allied offenses of similar import contrary to R.C. 2941.25(A). Appellant

argues that his sentence was contrary to law.

       {¶9}   In the case sub judice, appellant was sentenced to twelve months in prison

on Count One. The trial court, in its Entry, ordered that appellant’s thirty-six month

community control sentence on Count Two was to “begin after prison term.”

       {¶10} We review the imposed sentence under the standard of review set forth in

R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶ 1. An appellate court may modify or vacate a

sentence only if the appellate court finds by clear and convincing evidence that “the record

does not support the trial court's findings under relevant statutes or that the sentence is

otherwise contrary to law.” Id. A sentence is not clearly and convincingly contrary to law

where the trial court “considers the principles and purposes of R.C. 2929.11, as well as
Richland County, Case No. 2019 CA 0066                                             4


the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences

the defendant within the permissible statutory range.” State v. Dinka, 12th Dist. Warren

Nos. CA2019-03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36. Thus, this court may

“increase, reduce, or otherwise modify a sentence only when it clearly and convincingly

finds that the sentence is (1) contrary to law or (2) unsupported by the record.” State v.

Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d 1217 ¶ 1.

       {¶11} In State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d

164, at ¶ 24 the Ohio Supreme Court held as follows:

              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 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.

       {¶12} To the extent that appellant argues that his sentence was contrary to law,

we sustain, albeit for different reason, appellant’s first assignment of error. 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.
Richland County, Case No. 2019 CA 0066                                            5


      {¶13} Accordingly, the judgment of the Richland County Court of Common Pleas

is reversed and this case is remanded to the trial court for resentencing consistent with

this opinion. Hitchcock, supra, 2019-Ohio-3246 at ¶ 25.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
