[Cite as State v. Ervin, 2017-Ohio-1491.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2016-04-079

                                                  :             OPINION
    - vs -                                                       4/24/2017
                                                  :

JODY ERVIN,                                       :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2009-12-2008



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Jody Ervin, appeals the decision of the Butler County

Court of Common Pleas revoking her community control and imposing a prison term. For the

reasons detailed below, we reverse the decision of the trial court and remand for further

proceedings.

        {¶ 2} In 2010, Ervin pled guilty to two counts of complicity to felonious assault in

violation of R.C 2923.03(A)(2) and R.C. 2903.11(A)(2), both second-degree felonies. One of
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those counts included a specification that a firearm was used during the commission of the

offense. The trial court imposed a mandatory prison term of three years pursuant to R.C.

2929.14(D)(1)(a) for the gun specification. The trial court also imposed five years of

community control on both counts of complicity to felonious assault. The community control

sanctions were ordered to be served consecutive to and following the five-year prison term.

Ervin did not file a direct appeal.

        {¶ 3} In December 2012, Ervin was released from prison and began to serve her five-

year community control sentence. Ervin was found in violation of her community control in

2015 for issues including the possession of drugs. Nevertheless, the trial court continued

community control.1 In 2016, Ervin once again violated the terms of her community control

for heroin use. In its entry dated March 24, 2016, the trial court found that Ervin was no

longer amenable to community control and imposed 36 months in prison on each count of

Ervin's underlying complicity convictions and ordered those terms be served consecutively for

an aggregate 72-month prison term.

        {¶ 4} Ervin appealed the trial court's decision, raising two assignments of error for

review. However, this court issued an entry directing the parties to brief the following issues:

                Does Ohio law authorize a sentencing court to impose
                community control on one felony count to commence upon
                completion of a prison term imposed on another felony count? If
                not, does that render the community control sentence void or
                voidable?

Therefore, there are three assignments of error for consideration.

        {¶ 5} Assignment of Error No. 1:

        {¶ 6} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY

IMPOSING A PRISON SENTENCE.


1. The trial court, however, amended the community control sanctions from five years to three years in response
to the changes under H.B. 86.
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       {¶ 7} Assignment of Error No. 2:

       {¶ 8} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY

IMPOSING CONSECUTIVE PRISON SENTENCES.

       {¶ 9} Assignment of Error No. 3:

       {¶ 10} THE TRIAL COURT ERRED BY IMPOSING A BLENDED SENTENCE OF

COMMUNITY CONTROL AND PRISON SANCTIONS.

       {¶ 11} As resolution of Ervin's third assignment of error is dispositive of this matter,

we will address it first. In her third assignment of error, Ervin alleges the trial court erred by

imposing a "blended sentence," wherein the trial court imposed both a prison term on one

offense, but imposed a consecutive term of community control on another.

       {¶ 12} We begin by noting that R.C. 2929.13 states:

              Except as provided in division (E), (F), or (G) of this section and
              unless a specific sanction is required to be imposed or is
              precluded from being imposed pursuant to law, a court that
              imposes a sentence upon an offender for a felony may impose
              any sanction or combination of sanctions on the offender that are
              provided in sections 2929.14 to 2929.18 of the Revised Code.

Accordingly, a trial court has broad discretion in imposing a sentence, so long as a specific

sanction is not required or precluded and provided that the sanction or combination of

sanctions are provided in R.C. 2929.14 to R.C. 2929.18.

       {¶ 13} In prior cases, a number of Ohio appellate courts, including this court, have

found that a trial court may order a sentence of community control to be served consecutively

to a prison term. State v. Leedy, 4th Dist. Meigs Nos. 13CA7 and 13CA8, 2015-Ohio-1718, ¶

8; State v. Kinder, 5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340, ¶ 31; State v.

Randolph, 12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350, ¶ 6-7; State v. Ramsey,

6th Dist. Wood No. WD-04-004, 2004-Ohio-5677, at ¶ 4. The rationale behind many of these

cases was that "nothing in R.C. Chapter 2929 * * * prohibits trial courts from ordering a period

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of community control to be served consecutively to a prison sentence." Leedy at ¶ 9.

       {¶ 14} Recently, however, the Eighth District Court of Appeals, sitting en banc,

reconsidered a trial court's sentencing authority in light of several recent Ohio Supreme Court

decisions on this issue. State v. Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-

7044. The Eighth District determined that a trial court lacks authority to impose such

"blended sentences" because there is "no statutory authority for the imposition of community

control sanctions to be served consecutive to, or following the completion of, a prison or jail

term or other sentence of imprisonment, the trial court was without authority to impose the

same." Id. at ¶ 31.

       {¶ 15} The decision essentially flips the reasoning that appellate courts have relied

upon in upholding blended sentencing decisions and is based upon the Ohio Supreme

Court's decision in a similarly titled case State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-

2089. While prior cases resolved such issues on the basis that the legislature had not

specifically precluded the sentence, the Ohio Supreme Court's decision in Anderson made

clear that such reasoning is in error. Instead, sentencing decisions must be based on a

specific grant of legislative authority.

       {¶ 16} The Supreme Court's reasoning is detailed below:

              "[A] sentence is a penalty or combination of penalties imposed
              on a defendant as punishment for the offense he or she is found
              guilty of committing." State v. Harris, 132 Ohio St.3d 318, 2012-
              Ohio-1908, 972 N.E.2d 509, ¶ 28. "Judges have no inherent
              power to create sentences." State v. Fischer, 128 Ohio St.3d 92,
              2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, citing Griffin & Katz,
              Ohio Felony Sentencing Law, Section 1:3, at 4, fn. 1 (2008), and
              Woods v. Telb, 89 Ohio St.3d 504, 507-509, 2000 Ohio 171, 733
              N.E.2d 1103 (2000). Rather, judges are duty-bound to apply
              sentencing laws as they are written. Id.

              In 1974, in enacting R.C. 2901.03, the General Assembly
              abrogated common-law criminal liability by requiring that all
              criminal offenses be codified. State v. Collins, 1st Dist. Hamilton
              No. C-77614, 1979 Ohio App. LEXIS 9668, 1979 WL 208641, * 1
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              (Mar. 7, 1979). R.C. 2901.03 provides:

                      (A) No conduct constitutes a criminal offense against the
                      state unless it is defined as an offense in the Revised
                      Code.

                      (B) An offense is defined when one or more sections of
                      the Revised Code state a positive prohibition or enjoin a
                      specific duty, and provide a penalty for violation of such
                      prohibition or failure to meet such duty.

              Consequently, "'the only sentence which a trial judge may
              impose is that provided for by statute * * *.'" State v. Beasley, 14
              Ohio St.3d 74, 75, 14 Ohio B. 511, 471 N.E.2d 774 (1984),
              quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d
              811 (1964), see also State v. Morris, 55 Ohio St.2d 101, 112,
              378 N.E.2d 708 (1978), citing Toledo Mun. Ct. v. State ex rel.
              Platter, 126 Ohio St. 103, 184 N.E. 1 (1933) ("It has long been
              recognized in this state that the General Assembly has the
              plenary power to prescribe crimes and fix penalties").

              As stated by the Indiana Supreme Court, because "'sentencing is
              a creature of the legislature * * * courts are limited to imposing
              sentences that are authorized by statute, rather than only being
              limited to sentences that are not prohibited by statute.'"
              (Emphasis sic.) Wilson v. State, 5 N.E.3d 759 (Ind.2014),
              quoting Wilson v. State, 988 N.E.2d 1221, 1224 (Ind.2013)
              (Robb, C.J., dissenting).

Anderson, 2015-Ohio-2089 at ¶ 10-13.

       {¶ 17} Recognizing the Ohio Supreme Court's interpretation of sentencing authority,

the Eighth District noted "[a]ppellate courts had all too often flipped that proposition of law on

its head and affirmed sentences under the rationale that the legislature had not specifically

precluded the imposed sentence." Anderson, 2016-Ohio-7044 at ¶ 7. Following the Ohio

Supreme Court's decision in State v. Anderson, the rationale for those decisions was

undermined. Id. As a result, the relevant inquiry is whether the trial court is expressly

authorized by statute to impose the sentence, as opposed to whether the sentence is

expressly prohibited by statute.

       {¶ 18} Turning specifically to the issues in the present case, Ervin is presently


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incarcerated because she violated community control sanctions on two convictions for

complicity to felonious assault.              Those community control sanctions were ordered

consecutive to a prison term based on a gun specification.2 The issue before the court is

whether the legislature authorized the trial court to impose those community control sanctions

consecutive to the prison term.

        {¶ 19} R.C. 2929.41 controls a trial court's sentencing authority to impose a prison or

jail term, or other sentence of imprisonment consecutive to another term. Pursuant to R.C.

2929.41(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.

(Emphasis added.) The three exceptions to concurrent sentences under that provision are:

(1) for misdemeanor sentences pursuant to R.C. 2929.41(B); (2) for felony prison terms

pursuant to R.C. 2929.14(E); or (3) for sentences for certain violent sex offenses pursuant to

R.C. 2971.03.3

        {¶ 20} Ervin's sentence was imposed because of her conviction on two counts of

complicity to felonious assault. One of those counts included a gun specification, for which



2. The specification in this case is located in R.C. 2929.14(B)(1)(a)(ii), which mandates a three-year prison
sentence "if the specification is of the type described in division (A) of section 2941.145 of the Revised Code that
charges the offender with having a firearm on or about the offender’s person or under the offender’s control while
committing the offense and displaying the firearm, brandishing the firearm, indicating that the offender
possessed the firearm, or using it to facilitate the offense."

3. The sentencing statutes have been altered and reorganized in ensuing years. The current version of the
relevant statutes lists the exceptions as: (1) misdemeanor sentences pursuant to R.C. 2929.41(B); (2) felony
prison terms pursuant to R.C. 2929.14(C)(4); or (3) sentences for certain violent sex offenses pursuant to R.C.
2971.03.
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Ervin received a prison term. The community control sanctions were imposed on the

underlying complicity charges. Accordingly, the first and third exceptions under R.C. 2929.41

are inapplicable, as Ervin's convictions were neither sex offenses, nor misdemeanors.

Furthermore, the second exception is inapplicable as R.C. 2929.14(E) is limited to the

imposition of consecutive "prison terms." State v. Alexander, 8th Dist. Cuyahoga No.

102708, 2016-Ohio-204, ¶ 6, citing State v. Maloney, 12th Dist. Clermont No. CA99-01-006,

1999 Ohio App. LEXIS 4600 (Sep. 27, 1999) and State v. Kroger, 12th Dist. Clermont No.

CA99-05-050, 2000 Ohio App. LEXIS 1393 (Apr. 3, 2000). A "'community control sanction'

means a sanction that is not a prison term and that is described" in R.C. 2929.15 through

2929.18. R.C. 2929.01(E).

       {¶ 21} As R.C. 2929.41 does not provide the trial court with the authority to impose

the sentence at issue here, the next question is whether any other provision, including R.C.

2929.15 ("community control sanctions") and R.C. 2929.17 ("nonresidential sanctions")

provides a trial court with authority to impose community control sanctions consecutive to a

prison term. However, "[t]he only notable, and express, exception to this lack of authority to

impose residential or nonresidential sanctions consecutive to a prison term on a separate

count is for certain OVI offenses."      Anderson, 2016-Ohio-7044 at ¶ 18, citing R.C.

2929.15(A)(1). Pursuant to R.C. 2929.15(A)(1), the legislature expressly authorized the

imposition of community control sanctions to be served upon the offender's release from the

mandatory prison term when the sanctions are imposed on a third or fourth-degree felony

OVI offense:

               [I]n addition to the mandatory prison term or mandatory prison
               term and additional prison term imposed under that division, the
               court also may impose upon the offender a community control
               sanction or combination of community control sanctions under
               section 2929.16 or 2929.17 of the Revised Code, but the
               offender shall serve all of the prison terms so imposed prior to
               serving the community control sanction.
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        {¶ 22} While there may be temptation to rely on this provision for the proposition that

an offender shall serve all prison terms imposed before serving any community control

sanction, the legislature expressly limited application of that exception to sentences imposed

pursuant to divisions (G)(1) and (2) of R.C. 2929.13 regarding certain felony OVI offenses.

Anderson, 2016-Ohio-7044 at ¶ 18, citing State v. May, 8th Dist. Cuyahoga No. 97354, 2012-

Ohio-2766, ¶ 27-28. As the Eighth District concluded

                 R.C. Sections 2929.13 through 2929.17 are otherwise silent with
                 respect to imposing nonresidential sanctions to be served
                 consecutively to prison terms. That legislative silence is
                 deafening. In the absence of an express grant of authority to
                 order the imposition of nonresidential sanctions to be served
                 consecutive to prison terms, those sanctions cannot be so
                 imposed.

Anderson, 2016-Ohio-7044 at ¶ 19.

        {¶ 23} As there are no other sentencing statutes to supply the necessary authority for

the consecutive community control sanctions in this case, we agree with the Eighth District

and hold the trial court was without authority to impose consecutive community control

sanctions following the prison term imposed in this case. As a result, we overrule our prior

decision in State v. Randolph, 12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350, ¶ 9

(stating "R.C. 2929.13[A] provides a trial court with discretion to find community control

sanctions appropriate for one offense, while finding a prison term would be appropriate for a

separate offense.")4 Moreover, because there is no statutory authority for the imposition of

community control sanctions to be served consecutive to, or following the completion of, a

prison or jail term or other sentence of imprisonment, the trial court was without authority to

impose the same. The community control sanctions are therefore void and must be vacated.



4. Similar to many courts, this court's decision in Randolph cited favorably the proposition that "there is nothing
in R.C. Chapter 2929 that prohibits a 'blended sentence,' or a combination of sanctions for separate offenses."
Randolph at ¶ 9. That rationale was undermined by the Ohio Supreme Court's decision in Anderson, 143 Ohio
St.3d 173.
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      {¶ 24} In light of the foregoing, Ervin's community control sanctions on the complicity

charges and the trial court's sentencing decision on violation of community control are

vacated, and the case is remanded for resentencing on those counts alone. Ervin's guilt on

those counts is otherwise undisturbed. Furthermore, our decision does not disturb the

conviction and sentence related to the gun specification for which Ervin has already served

three years.

      {¶ 25} Judgment reversed and remanded.


      HENDRICKSON, P.J., and M. POWELL, J., concur.




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