[Cite as State v. Grabovich, 2020-Ohio-2730.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :   Hon. John W. Wise J.
                                                :   Hon. Patricia A. Delaney, J.
 -vs-                                           :
                                                :   Case No. 2019 CA 00042
                                                :
 JASON GRABOVICH                                :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County Court
                                                    of Common Pleas, Case No. 2004 CR
                                                    0280



JUDGMENT:                                           REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                             April 29, 2020




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 R. KYLE WITT                                       THOMAS R. ELWING
 FAIRFIELD COUNTY PROSECUTOR                        60 West Columbus Street
                                                    Pickerington, OH 43147
 R. KYLE WITT
 239 West Main St., Suite 101
 Lancaster, OH 43130
Fairfield County, Case No. 2019 CA 00042                                               2


Delaney, J.

       {¶1} Defendant-Appellant Jason Grabovich appeals the August 8, 2019

judgment revoking community control and imposing a prison sentence as entered by the

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

                        FACTS AND PROCEDURAL HISTORY

       {¶2} The underlying facts are unnecessary for the disposition of this appeal.

       {¶3} Grabovich has succinctly set forth the procedural history of this case, as

well as two other companion cases, as follows.

       {¶4} There are three case numbers from the same trial court which are relevant

to this appeal: Case Nos. 2004-CR-238, 2004-CR-280 and 2013-CR-135. This appeal,

however, involves only Case No. 2004-CR-280 where the trial court imposed a prison

term for violations of community control. Grabovich has served the entire prison terms

imposed in Case Nos. 2004-CR-238 and 2013-CR-135.

       {¶5} On December 29, 2004, Grabovich entered guilty pleas to seven counts of

burglary, all felonies of the second degree in violation of R.C. 2911.12(A)(2). The seven

counts of burglary involved two separate indictments. In Case No. 2004-CR-238, a guilty

plea was entered to one count of burglary. In Case No. 2004-CR-280, guilty pleas were

entered to six counts of burglary.

       {¶6} Via Judgment Entry filed on January 6, 2005, the trial court imposed a four-

year prison term for the one count of burglary in Case No. 2004-CR-238, to be served

consecutive to the sentence imposed in Case No. 2004-CR-280.

       {¶7} Via a Nunc Pro Tunc Entry filed on January 13, 2005, the trial court imposed

a four-year prison term on each of the six burglary counts (counts one, two, three, four,
Fairfield County, Case No. 2019 CA 00042                                                3


eight and nine) to run consecutive to each other and consecutive to the aforementioned

sentence imposed in 2004-CR-238. However, the trial court further ordered that as to

counts two, three, four, eight and nine: Grabovich was to serve a five-year community

control sanction which was to begin upon his release from prison as to count one.

       {¶8} Grabovich completed the eight-year prison sentence and was serving his

term of community control sanctions, when on March 1, 2013, the Fairfield County Grand

Jury returned an indictment in Case No. 2013-CR-135 alleging two counts of aggravated

robbery as felonies of the first-degree in violation of R.C. 2911.01(A)(1) and

2911.01(A)(2). Both counts of aggravated robbery also charged a firearm specification

with a three-year mandatory prison term under R.C. 2941.145. On November 13, 2013,

Grabovich entered a guilty plea to one of the counts of aggravated robbery with a firearm

specification. The second count was dismissed. The trial court imposed a three-year

prison term for the aggravated robbery offense plus a consecutive three-year term on the

firearm specification for a total prison sentence of six year.

       {¶9} On November 27, 2013, Grabovich appeared before the trial court for

resentencing in Case No. 2004-CR-238 and 2004-CR-280. The trial court followed the

joint recommendation by the state and defense for resentencing. In Case No. 2004-CR-

238, the trial court imposed the same four-year prison term originally ordered in 2004 and

gave credit for Grabovich having already served the entire sentence. In Case No. 2004-

CR-280, the trial court again imposed a four-year prison term on one count of burglary

and gave credit for Grabovich having already served this entire sentence as well. For the

remaining five counts of burglary in Case No. 2004-CR-280, the trial court again placed

Grabovich on five years of community control and suspended the imposition of
Fairfield County, Case No. 2019 CA 00042                                               4


consecutive four-year prison terms on each count. The trial court ordered that the five-

year term of community control would begin after Grabovich completed the six-year term

he received in Case No. 2013-CR-135.

      {¶10} After serving his sentence in Case No. 2013-CR-135, Grabovich began

serving the community control sanction as to count two in Case No. 2004-CR-280.

However, a motion to revoke community control was subsequently filed. Via Judgment

Entry, filed on August 8, 2019, the trial court revoked community control and imposed the

four-year term previously ordered on count two. Additionally, the trial court ordered

Grabovich to remain on community control as to counts three, four, eight and nine, but

tolled these periods of supervision while he serves the sentence imposed on count two.

      {¶11} Grabovich now appeals the August 8, 2019 sentencing entry.

                              ASSIGNMENT OF ERROR

      {¶12} Grabovich raises one Assignment of Error:

      {¶13} “THE TRIAL COURT ERRED BY IMPOSING A PRISON TERM AS A

SANCTION FOR VIOLATING COMMUNITY CONTROL WHERE THE SENTENCE

PLACING APPELLANT ON COMMUNITY CONTROL SANCTIONS WAS NOT

AUTHORIZED BY STATUTE AND WAS THEREFORE VOID.”

                                      ANALYSIS

      {¶14} In Grabovich’s sole Assignment of Error, he argues the trial court erred

when it imposed a term of community control to be served consecutively to a term of

imprisonment. Grabovich contends his sentence was not authorized by law pursuant to

State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164. We agree.
Fairfield County, Case No. 2019 CA 00042                                                 5


       {¶15} This Court has previously approved sentences in which a trial court

imposed community control consecutive to a prison term. In State v. Hitchcock, 5th Dist.

Fairfield No. 16-CA-41, 2017-Ohio-8255, the defendant pleaded guilty to three counts of

unlawful sexual conduct with a minor, third-degree felonies in violation of R.C. 2907.04(A)

and (B)(3). The trial court ordered the defendant to serve a five-year prison term on two

counts, with each term to be served consecutively to the other. On the third count, the

trial court ordered the defendant to serve a five-year term of community control to be

served consecutively to the prison term. Upon the defendant’s appeal of his sentence, we

affirmed the trial court’s imposition of sentence. We certified that our judgment in

Hitchcock, supra, 2017-Ohio-8255, was in conflict with decisions from the Eighth and

Twelfth appellate districts. The Ohio Supreme Court determined a conflict existed and it

accepted the cause.

       {¶16} The certified conflict issue before the Ohio Supreme Court was whether a

trial court could impose community control sanctions on one felony count to be served

consecutively to a prison term imposed on a separate felony count. In State v. Hitchcock,

157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, the Court answered the question

in the negative and concluded 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.” Id. at ¶ 24. It found that

no provision of the Revised Code authorized trial court to impose community control

sanctions on one felony count to be served consecutively to a prison term imposed on

another felony count. Id.
Fairfield County, Case No. 2019 CA 00042                                              6


       {¶17} The State concedes the trial court erred in sentencing Grabovich to a term

of community control to be served consecutively to a term of imprisonment under the

authority of Hitchcock, supra, 2019-Ohio-3246.

       {¶18} We find pursuant to the Ohio Supreme Court’s decision in Hitchcock, supra,

2019-Ohio-3246, the trial court was not authorized to impose a term of community control

on one or more felony counts of burglary to be served consecutively to a term of

imprisonment imposed on one or more other felony counts of burglary. Grabovich’s

August 8, 2919 sentence revoking community control is reversed and vacated, and this

matter is remanded to the trial court for further proceedings.

       {¶19} Grabovich’s sole Assignment of Error is sustained.
Fairfield County, Case No. 2019 CA 00042                                                7


                                     CONCLUSION

       {¶20} The judgment of the Fairfield County Court of Common Pleas is reversed,

and the matter is remanded to the trial court for proceedings consistent with this Opinion

and law. Hitchcock, supra, 2019-Ohio-3246 at ¶ 25.

By: Delaney, J.,

Gwin, P.J. and

Wise, John, J., concur.
