[Cite as State v. Randolph, 2018-Ohio-4651.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 17 CA 53
CONNIE RANDOLPH

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 17 CR 98


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        November 19, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

R. KYLE WITT                                   SCOTT P. WOOD
PROSECUTING ATTORNEY                           CONRAD / WOOD
JOEL C. WALKER                                 120 East Main Street
ASSISTANT PROSECUTOR                           Suite 200
239 West Main Street, Suite 101                Lancaster, Ohio 43130
Lancaster, Ohio 43130
Fairfield County, Case No. 17 CA 53                                                        2

Wise, John, P. J.

       {¶1}   Defendant-Appellant Connie M. Randolph appeals the decision of the Court

of Common Pleas, Fairfield County, which sentenced her for community control

violations. Appellee is the State of Ohio. The relevant facts leading to this appeal are as

follows.

       {¶2}   On March 6, 2017, appellant was indicted on several felony counts,

including aggravated possession of drugs, by the Fairfield County Grand Jury.

       {¶3}   On July 13, 2017, appellant appeared in court with counsel and entered a

guilty plea to one count of aggravated possession of drugs, a felony of the fifth degree,

possession of heroin, a felony of the fifth degree, and falsification, a misdemeanor of the

first degree. She was thereupon sentenced to sixteen months in prison.

       {¶4}   On October 3, 2017, after serving part of her prison time, appellant was

granted judicial release via an order from the trial court. She was further placed on

community control for a period of five years.

       {¶5}   However, on December 11, 2017, appellant appeared in court and admitted

to violating her community control by being charged with a new misdemeanor offense, by

failing to report to the community control department, by failing to attend counseling, by

testing positive for prohibited substances, by violating house arrest, and by letting her

GPS monitor power down.

       {¶6}   Accordingly, the trial court found appellant had “technically violated” certain

terms and conditions of her community control as to Count 1 (aggravated possession of

drugs) and Count 7 (possession of heroin), and it imposed a ninety-day prison sanction

on each of those two counts, ordering that they be consecutive to each other and to the
Fairfield County, Case No. 17 CA 53                                                          3


prison sanctions imposed by the trial court for the same violations of her community

control in a separate case, Fairfield Common Pleas case number 17-CR-235, for a total

prison sanction of 270 days. See Judgment Entry, December 12, 2017, at 1-2.

       {¶7}   On December 20, 2017, appellant filed a notice of appeal. She herein raises

the following sole Assignment of Error:

       {¶8}   “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT AFTER A

COMMUNITY CONTROL VIOLATION.”

                                                  I.

       {¶9}   In her sole Assignment of Error, Appellant Randolph contends the trial court

erred in ordering her to serve two ninety-day prison sentences for violating community

control, consecutive to her sanction in a separate case. We disagree.

       {¶10} R.C. 2953.08(G)(2) sets forth the standard of appellate review of felony

sentences. State v. Daniels, 5th Dist. Muskingum No. CT2016-0021, 2017-Ohio-1045, ¶

13, citing State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1. Thus, pursuant to

R.C. 2953.08(G)(2), an appellate court may only “increase, reduce, or otherwise modify

a sentence * * * or may vacate the sentence and remand the matter to the sentencing

court for resentencing” if the court clearly and convincingly finds “(a) [t]hat the record does

not support the sentencing court's findings[,]” or “(b) [t]hat the sentence is otherwise

contrary to law.” This same standard applies on appellate review of the imposition of

consecutive sentences following a community control revocation hearing. State v.

Haddox, 6th Dist. Erie No. E-15-017, 2016-Ohio-3368, 66 N.E.3d 262, ¶ 32.

       {¶11} R.C. 2929.15(B)(1), as written at the time appellant received her sanction

for violating community control, reads as follows in pertinent part:
Fairfield County, Case No. 17 CA 53                                                       4


               If the conditions of a community control sanction are violated or if the

       offender violates a law or leaves the state without the permission of the

       court or the offender's probation officer, the sentencing court may impose

       upon the violator one or more of the following penalties:

               ***

               (c) A prison term on the offender pursuant to section 2929.14 of the

       Revised Code and division (B)(3) of this section, provided that a prison term

       imposed under this division is subject to the following limitations, as

       applicable:

               (i) If the prison term is imposed for any technical violation of the

       conditions of a community control sanction imposed for a felony of the fifth

       degree or for any violation of law committed while under a community

       control sanction imposed for such a felony that consists of a new criminal

       offense and that is not a felony, the prison term shall not exceed ninety

       days.

               ***.

       {¶12} Appellant in the case sub judice emphasizes that there is no language in

R.C. 2929.15(B)(1)(c)(i), supra, specifically authorizing consecutive prison terms for

community control violations. She thus essentially contends that the silence in the statute

should be liberally construed in her favor, under the general rule of construction found in

R.C. 2901.04(A).

       {¶13} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. State v. Smith, 5th Dist. Ashland No. 18-COA-002, 2018-Ohio-
Fairfield County, Case No. 17 CA 53                                                           5


4188, ¶ 13, citing R.C. 2929.41(A). Nonetheless, “[t]he legislature has expressly granted

trial courts the ‘discretion to determine the most effective way’ to achieve the purposes

and principles of sentencing. R.C. 2929.12(A). Such discretion gives trial courts the

inherent authority to determine whether sentences shall run concurrently or

consecutively.” State v. Mize, 12th Dist. Butler No. CA2017-11-159, 2018-Ohio-3848, ¶

29, citing State v. Bates, 118 Ohio St.3d 174, 2008–Ohio–1983, 887 N.E.2d 328, ¶ 19.

       {¶14} The General Assembly has put some restraint on this “inherent authority”

via the requirement of findings set forth in R.C. 2929.14(C)(4), and at least one Ohio

appellate court has concluded that when an offender's community control is revoked and

multiple prison terms are imposed, the trial court must make findings under R.C.

2929.14(C)(4) before imposing consecutive sentences at a revocation sentencing

hearing. See State v. Gibson, 2nd Dist. Champaign No. 2016-CA-12, 2017-Ohio-691, ¶

20, citing State v. Stevens, 2nd Dist. Greene No. 2014–CA–10, 2015–Ohio–1051, ¶ 9.

       {¶15} However, we find appellant has not presented such an argument on the

question of consecutive sentence findings (see R.C. 2953.08(G)(2)(a), supra), and is

instead challenging on more general grounds that consecutive prison terms for violating

community control in this context are contrary to law (see R.C. 2953.08(G)(2)(b), supra).

Upon review of the latter claim, we find no reversible error in the trial court’s decision.
Fairfield County, Case No. 17 CA 53                                             6


       {¶16} Appellant's sole Assignment of Error is therefore overruled.

       {¶17} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Fairfield County, is hereby affirmed.


By: Wise, John, P. J.

Hoffman, J., and

Wise, Earle, J., concur.



JWW/d 1029
