[Cite as State v. Smith, 2018-Ohio-4188.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 18-COA-002
EARLANA V. SMITH                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland County
                                                   Court of Common Pleas, Case No. 16-CRI-
                                                   008


JUDGMENT:                                          Vacated and Remanded




DATE OF JUDGMENT ENTRY:                            October 12, 2018



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant
CHRISTOPHER R. TUNNEL                              BRIAN A. SMITH
Ashland County Prosecutor’s Office                 755 White Pond Drive, Ste. 403
110 Cottage Street, 3rd Floor                      Akron, OH 44320
Ashland, OH 44805
[Cite as State v. Smith, 2018-Ohio-4188.]


Gwin, P.J.

         {¶1} Appellant Earlana V. Smith [“Smith”] appeals from the December 21, 2017

Judgment Entry of the Ashland County Court of Common Pleas that denied her motion

to dismiss and the January 2, 2018 Judgment Entry continuing her community control

and imposing sixty days of electronically monitored house arrest.

                                            Facts and Procedural History

         {¶2} On March 14, 2016, Smith pleaded guilty to Possession of Heroin, a fifth

degree felony in violation of 2925.11(A) [Count One], and Illegal Conveyance of Drugs

Onto Grounds of a Detention Facility, a third degree felony in violation of 2921.36(A)

[Count Two].

         {¶3} On August 25, 2016, in its Nunc Pro Tune Judgment Entry, the trial court

found,

                 Upon a consideration of the purposes and principles of the felony

         sentencing law and the statutory sentencing factors, and after further

         weighing the above findings, the Court finds that the Defendant is

         amenable to community control sanctions as to Count One, and that a

         community control sentence is consistent with the purposes and principles

         of the felony sentencing law of Ohio. The Court further finds that the

         community control sentence would demean the seriousness of the offense

         set forth in Count Two, and that a prison sentence is appropriate for the

         Count Two offense.

         {¶4} Thereafter the court sentenced Smith to nine months in prison, with three

years of post-release control on Count Two, and further,
Ashland County, Case No. 18-COA-002                                                      3


                As stated in Count One of the Indictment for the Count One offense

       POSSESSION OF HEROIN, in violation of Ohio Revised Code Section

       2925.11(A), a felony of the fifth (5th) degree, the Defendant shall be

       screened for admission to the CROSSWAEH Community Based

       Correctional Facility, following completion of the prison sentence imposed

       for Count Two.

Emphasis in original. The trial court also placed Smith on probation for three years

following release from the CBCF. The trial court credited Smith with one-hundred and

fifty-eight days incarceration against the jail sanction for time served. Smith served the

remainder of her nine months incarceration in prison and completed her six months at the

CBCF. Smith was then released and placed on community control.

       {¶5} On November 6, 2017, Smith was charged with violating the terms and

conditions of her community control as part of her sentence on Count One. On December

6, 2017, Smith filed a “Motion to Dismiss Community Control Violations and to Terminate

Community Control Sanctions.” Smith argued that if she were properly credited with all

time spent in confinement, Smith had served more than the maximum time that she could

be sentenced for a felony of the fifth degree.

       {¶6} On December 21, 2017, following a hearing, the trial court denied Smith's

Motion to Dismiss Community Control Violation and to Terminate Community Control

Sanctions, and accepted her admission to the violation. On January 2, 2018, the trial

court sentenced Smith to sixty days on house arrest, "as and for a residential sanction for

the violation of the terms and conditions of the Defendant's community control

supervision."
Ashland County, Case No. 18-COA-002                                                       4

                                      Assignments of Error

       {¶7} Smith raises two assignments of error,

       {¶8} “I. APPELLANT’S SENTENCE WAS CONTRARY TO LAW.

       {¶9} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

DISMISS COMMUNITY CONTROL VIOLATION AND TO TERMINATE CONUNUNITY

CONTROL SANCTIONS.”

                                               I & II.

       {¶10} In her two assignments of error, Smith argues that the community control

violation referenced only Count One, which was a felony of the fifth degree. Accordingly,

the maximum possible term of incarceration Smith could face was twelve months. R.C.

2929.14(A)(5).    Smith contends that she has completed the maximum period of

confinement and the trial court failed to properly credit her sentence on Count One with

the time she has spent in confinement. Because she has completed the sentence for

Count One, Smith argues that the trial court did not have jurisdiction to impose any penalty

for violation of her community control sanctions.

                             STANDARD OF APPELLATE REVIEW

       {¶11} “‘When a court’s judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville

Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;

Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL

2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,

909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d

440, ¶6. This Court reviews de novo a trial court’s refusal to dismiss a violation of
Ashland County, Case No. 18-COA-002                                                    5

community control for lack of subject matter jurisdiction. State v. McQuade, 9th Dist.

Medina No. 08CA0081–M, 2009-Ohio-4795, ¶ 6; Accord, State v. Meyer, 9th Dist. Summit

No. 26999, 2014-Ohio-3705, ¶8.

      ISSUE FOR APPEAL

      Whether the trial court lost jurisdiction to sanction Smith for a violation of

community control because she completed the maximum term of confinement on the

underlying offense.

       (a). Concurrent vs. consecutive sentences.

       {¶12} The Ohio General Assembly provided the rules for determining whether a

defendant should serve concurrent or consecutive sentences in R.C. 2929.41. That

section provides:

             (A) Except as provided in division (B) of this section, division (C) 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.

             (B)(1) A jail term or sentence of imprisonment for a misdemeanor

       shall be served consecutively to any other prison term, jail term, or

       sentence of imprisonment when the trial court specifies that it is to be
Ashland County, Case No. 18-COA-002                                                                      6


              served consecutively or when it is imposed for a misdemeanor violation of

              section 2907.322, 2921.34, or 2923.131 of the Revised Code.

Emphasis added.            R.C. 2971.03 does not apply to Smith’s case.1 Smith was not

sentenced for a misdemeanor offense, thus R.C. 2929.41(B) does not apply to the case

at bar.

              {¶13} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. In

Ohio, there is a statutory presumption in favor of concurrent sentences for most felony

offenses. R.C. 2929.41(A). The trial court may overcome this presumption by making

the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court

to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton Nos. C–110828

and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15. In State v. Bonnell, 140 Ohio

St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, the Supreme Court of Ohio held that in

order to impose consecutive terms of imprisonment, a trial court is required to make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry. Id. at the syllabus. A failure to make the findings

required by R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law. Bonnell,

¶34.

              {¶14} In the case at bar, the trial court did not make any of the findings required

by R.C. 2929.14(C)(4) at the sentencing hearing or in the sentencing entry. Accordingly,




          1
          R.C. 2971.03 Sentence for offender convicted of violent sex offense and sexually violent predator
specification; sentence for offender convicted of designated homicide, assault, or kidnapping offense and
both a sexual motivation and sexually violent predator specification.
Ashland County, Case No. 18-COA-002                                                     7


the sentences on Count One and Count Two in the case at bar must run concurrently.

R.C. 2929.41(A).

       (b). Community Control sanctions.

       {¶15} The Ohio Supreme Court has approved sentences in which a trial court

imposes community control consecutive to a prison term. In State v. Paige, the defendant

entered pleas of guilty to one count each of sexual battery, abduction, and domestic

violence. The sexual-battery and abduction counts merged and appellant was sentenced

on the sexual-battery count. On that count, he was sentenced to a prison term of 42

months, followed by five years of mandatory post-release control. On the domestic

violence count, the defendant was sentenced to a term of five years of community control.

The community-control sanction included a requirement that upon his release from prison,

he must be assessed for and successfully complete a term in a CBCF. Upon direct

appeal, the Eighth District found this to be an impermissible “split sentence” because the

defendant spent part of the domestic-violence sentence in prison and part in a CBCF.

153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 3-4.

       {¶16} The Ohio Supreme Court found this was not a split sentence because the

trial court imposed the prison term upon the sexual battery count separately from the

community-control term upon the domestic violence count. Paige, 153 Ohio St.3d 214,

2018-Ohio-813, 103 N.E.3d 800, ¶ 9-10.The defendant further argued, however, that the

trial court improperly ordered him to complete the CBCF requirement after the completion

of the prison term because this constitutes an improper consecutive term of

imprisonment. The Supreme Court agreed as follows:
Ashland County, Case No. 18-COA-002                                                      8


            Notably, the state concedes that the trial court erred when it ordered

      Paige’s placement in a CBCF upon his release from prison.                  R.C.

      2929.41(A) provides that 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” unless a statutory exception

      applies. (Emphasis added.) Pursuant to R.C. 1.05(A), “imprisonment”

      includes a term in a CBCF. Thus, a term of confinement in a CBCF is a

      “sentence of imprisonment” under R.C. 2929.41(A).

            A confinement term in a CBCF is a permissible community-

      residential sanction for certain felony offenders pursuant to R.C.

      2929.16(A)(1).     But here, none of the statutory exceptions in R.C.

      2929.41(A) apply to permit the CBCF term to run consecutively to the

      prison term imposed on the sexual-battery count. State v. Anderson, 2016-

      Ohio-7044, 62 N.E.3d 229, ¶ 16 (8th Dist.); see also State v. Barnhouse,

      102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874 (concluding that

      because the General Assembly expressly provided statutory exceptions to

      the general rule that sentences of imprisonment must be run concurrently

      and because jail sentences did not qualify as an exception under R.C.

      2929.41(A), jail sentences may not be imposed consecutively).

      Accordingly, the trial court had no statutory authority to order, as part of the

      community-control sanction, that Paige be placed in a CBCF after his

      completion of the separate prison term. Judges must impose only those

      sentences provided for by statute. Anderson, 143 Ohio St.3d 173, 2015-
Ashland County, Case No. 18-COA-002                                                        9


        Ohio-2089, 35 N.E.3d 512, at ¶ 12. Thus, the trial court’s imposition of a

        CBCF term as a community-control sanction, to be served consecutively

        to a prison term imposed on a separate offense, was improper.

              We turn, then, to the remedy. The state asserts that the proper

       remedy is to vacate only the improperly imposed residential sanction and

       leave the remaining conditions of the community-control sentence intact.

       We agree with this approach here. Under R.C. 2929.15(A)(1), a court may

       impose on a felony offender who is not required to serve a mandatory prison

       term one or more community-control sanctions authorized by statute. Here,

       the trial court imposed a five-year period of community-control supervision

       with a number of conditions, including completion of anger-management

       training, a no-contact order, and placement in a CBCF (as discussed

       above). Because vacating the improperly imposed CBCF term does not

       disturb the remainder of the community-control sentence, we conclude that

       the proper remedy is to vacate only that portion of the community-control

       sentence.

Paige, 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 12-14.

        {¶17} Paige is important to the analysis in the instant case because the parties

agree that Smith completed a six-month stay at the CBCF. In following Paige, however,

we have no choice but to find that the trial court did not have statutory authority to order,

as part of the original sentence, Smith’s placement into a CBCF as part of her community-

control sanction after her completion of the separate prison term.
Ashland County, Case No. 18-COA-002                                                       10

        {¶18} The remedy in Paige was to vacate the residential sanction and leave the

remainder of the sentence intact. In the instant case, the CBCF portion of the sentence

has already been served. Time spent in a CBCF qualifies as “confinement” and should

be credited towards a prison sentence after conditions of the community control are

violated. State v. Napier, 93 Ohio St.3d 646, 648, 2001-Ohio-1890, 758 N.E. 2d 1127.

In the case at bar, Smith is entitled to a credit of 180-days toward her sentence on Count

One for the time she had spent in the CBCF.

        (c). Jail time credit.

        {¶19} R.C. 2967.191, states that “[t]he department of rehabilitation and correction

shall reduce the stated prison term of a prisoner * * * by the total number of days that the

prisoner was confined for any reason arising out of the offense for which the prisoner was

convicted and sentenced, including confinement in lieu of bail while awaiting trial * * *.”

        {¶20} The Ohio Administrative Code provides additional details regarding when a

prisoner is entitled to jail-time credit and how to calculate a prison term, considering the

credit. Most relevant to the question before us is Ohio Adm.Code 5120–2–04(F), which

states that “[i]f an offender is serving two or more sentences, stated prison terms or

combination thereof concurrently, the adult parole authority shall independently reduce

each sentence or stated prison term for the number of days confined for that offense.

Release of the offender shall be based upon the longest definite, minimum and/or

maximum sentence or stated prison term after reduction for jail time credit.”

        {¶21} In State v. Fugate, the Ohio Supreme Court held,

              Thus, in order to satisfy this objective, when concurrent prison terms

        are imposed, courts do not have the discretion to select only one term from
Ashland County, Case No. 18-COA-002                                                     11


       those that are run concurrently against which to apply jail-time credit. R.C.

       2967.191 requires that jail-time credit be applied to all prison terms

       imposed for charges on which the offender has been held. If courts were

       permitted to apply jail-time credit to only one of the concurrent terms, the

       practical result would be, as in this case, to deny credit for time that an

       offender was confined while being held on pending charges. So long as

       an offender is held on a charge while awaiting trial or sentencing, the

       offender is entitled to jail-time credit for that sentence; a court cannot

       choose one of several concurrent terms against which to apply the credit.

117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶12.

       {¶22} R.C. 2929.15(B)(1)(c) permits a trial court to impose a prison sentence upon

an offender who violates conditions of community control sanctions. That prison term,

however, “shall not exceed the prison term specified in the notice provided to the offender

at the sentencing hearing pursuant to division (B)(2) of section 2929.19 of the Revised

Code.” R.C. 2921.15(B)(3). In the case at bar, Smith was informed that a violation of

conditions of community control sanctions could result in a 12-month prison sentence.

Nunc Pro Tunc- Judgment Entry-Sentencing, filed Aug 25, 2016 at 6.

       {¶23} In the case at bar, as already noted because none of the exceptions to R.C.

2929.41 applies, Smith’s sentences must run concurrently. Because none of the statutory

exceptions in R.C. 2929.41(A) applies to permit a prison term for Count One to run

consecutively to the prison term imposed on Count Two, Paige would also prohibit the

trial court from imposing a twelve month sentence for a violation of Community Control

on Count One consecutively to the nine month prison sentence imposed on Count Two.
Ashland County, Case No. 18-COA-002                                                     12

A twelve-month sentence would be an impermissible consecutive sentence. In other

words, Smith having served 9 months would then be required to serve an additional 12

months in prison, for a total of 21 months in prison. That would, in reality, be imposing a

consecutive sentence, not at the original sentencing hearing or in the original sentencing

entry as mandated by Bonnell, but, rather, after Smith violated the conditions of

community control. To hold a trial court may impose consecutive sentences under R.C.

2929.15(B)(1)(c), would allow a trial court to impose consecutive sentences without the

trial court making the required statutorily mandated findings. Cf. State v. Barnhouse, 102

Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, ¶17. A failure to make the findings

required by R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶34.

       {¶24} Thus, if the trial court imposed a prison sentence upon a finding that Smith

had violated the Community Control sanctions on Count One, the trial court must give

credit on Count One for all periods Smith was confined upon a finding that Smith had

violated the Community Control sanctions. State v. Fugate, 117 Ohio St.3d 261, 2008-

Ohio-856, 883 N.E.2d 440.

       {¶25} In the case at bar, the trial court granted Smith credit for all pre-trial

confinement toward the nine-month prison sentence imposed for Count Two. Thus, Smith

would have served nine months less the time credited for pre-trial detention pending her

delivery to the institution. Because any prison sentence imposed upon Count One must

be served concurrent to the already served nine-month prison sentence imposed on

Count Two, the trial court would be required to grant Smith credit for the nine-month

sentence. The maximum sentence that Smith could be sentenced to for Count One is
Ashland County, Case No. 18-COA-002                                                     13


twelve months. Thus, the trial court could only sentence Smith to serve a period of three

months on Count One (12 months – 9 months credit). However, Smith served six months

in the CBCF. Smith’s time in the CBCF should be credited towards a prison sentence

after conditions of the community control are violated. State v. Napier, 93 Ohio St.3d 646,

648, 2001-Ohio-1890, 758 N.E. 2d 1127.            Thus, Smith has served more than the

maximum sentence on Count One because the trial court would have no authority to

impose a consecutive prison sentence for Count One. (9 months prison + 6 months

CBCF = 15 months).

       {¶26} In the case at bar, Smith has already completed the maximum sentence on

Count One. Therefore, the trial court did not have jurisdiction to impose any community

control sanctions upon Smith for her violation.

      (d). Conclusion.

       {¶27} Because no exception to R.C. 292941 applies, Smith’s sentence on Count

One must run concurrently to her sentence on Count Two. As Smith’s sentences were

concurrent, Smith must be given credit for all time spent in confinement on each count.

The time Smith spent in confinement exceeds the maximum sentence for the offense for

which she was placed on Community Control. Therefore, Smith is no longer subject to

Community Control on Count One.

       {¶28} Smith’s First and Second Assignments of Error are sustained.
Ashland County, Case No. 18-COA-002                                                14


       {¶29} The judgment of the Ashland County Court of Common Pleas is vacated

and the case is remanded for proceedings in accordance with our opinion and the law.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur
