[Cite as State v. Williams, 2018-Ohio-4580.]


                                        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-                                           :
                                               :
BRYAN I. WILLIAMS                              :     Case No. 17-CA-43
                                               :
        Defendant-Appellant                    :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 13-CR-5




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 13, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER A. REAMER                                THOMAS R. ELWING
Fairfield County Prosecutor's Office                 60 West Columbus Street
239 West Main Street                                 Pickerington, OH 43147
Suite 101
Lancaster, OH 43130
Fairfield County, Case No. 17-CA-43                                                      2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant Bryan I. Williams appeals the September 12, 2017

judgment of the Court of Common Pleas of Fairfield County which revoked his community

control. Plaintiff-Appellee is the state of Ohio.

                                     PROCEDURAL HISTORY

       {¶ 2} A recitation of the underlying facts is unnecessary to our resolution of this

appeal.

       {¶ 3} On January 4, 2013, the Fairfield Grand Jury returned a four-count

indictment which charged Williams as follows:

       Count 1 – Aggravated trafficking in drugs, a felony of the fourth degree

       Count 2 – Aggravated trafficking in drugs, a felony of the third degree

       Count 3 – Trafficking in heroin, a felony of the fourth degree

       Count 4 – Illegal assembly or possession of chemicals for the manufacture of

       drugs, a felony of the third degree.



       {¶ 4} On May 9, 2013, Williams appeared with counsel at a pretrial hearing

wherein the parties worked out a negotiated plea agreement on the record. The trial court

adopted and imposed the parties jointly recommended sentence. Counts two and three

merged and the state elected to proceed on count two. The trial court ordered sentences

of two years each on counts two and four, to be served consecutively for a four year term

of incarceration. On count one, the trial court imposed a five year term of community

control to commence upon Williams' release from prison. The court further suspended an

18-month term of incarceration on count one. Williams filed no appeal of his sentence.
Fairfield County, Case No. 17-CA-43                                                       3


       {¶ 5} On November 12, 2015, the trial court granted Williams’ motion for judicial

release and Williams began serving the five years of community control on count one. In

the judgment entry granting judicial release the trial court reserved the balance of the

unserved term of incarceration for count two, as well as the suspended 18-month term

for count one.

       {¶ 6} On July 12, 2017, Williams’ probation officer filed a motion to revoke

William's community control along with a statement of alleged violations. A hearing was

held on the matter on September 11, 2017.

       {¶ 7} Before the hearing, counsel for Williams filed a motion to dismiss the motion

to revoke community control. In it, counsel relied on decisions from the Eighth and Twelfth

appellate districts for the argument that no statutory authority existed to allow the

imposition of a period of community control to be served consecutive to completion of a

term of incarceration. Counsel argued, therefore, that Williams' sentence was void and

the trial court was without authority to impose any sanctions for the alleged community

control violations.

       {¶ 8} The trial court overruled Williams' motion and Williams stipulated to having

violated the conditions of his community control. After hearing the arguments of counsel

and Williams' probation officer, the trial court revoked Williams' community control. The

trial court first noted Williams had already served his entire sentence for count four, then

ordered Williams to serve the balance of his sentence for count two and the entire

previously suspended 18-month sentence for count one.

       {¶ 9} Williams now brings this appeal. He raises one assignment of error:
Fairfield County, Case No. 17-CA-43                                                      4


                                                I

       {¶ 10} "THE TRIAL COURT ERRED IN IMPOSING PRISON AS A SANCTION

FOR VIOLATING COMMUNITY CONTROL WHERE THE ORIGINAL SENTENCE

PLACING APPELLANT ON COMMUNITY CONTROL WAS NOT AUTHORIZED BY

STATUTE AND WAS THEREFORE VOID."

       {¶ 11} In his sole assignment of error, Williams argues because the trial court was

without statutory authority to impose a blended sentence of a period of community control

consecutive to a prison term, his community control sanction was void, and the 18-month

prison term imposed for violating community control must be vacated. We disagree

                  Res Judicata, Negotiated Plea, New Judicial Interpretation

       {¶ 12} As an initial matter, the state argues Williams’ appeal is barred by res

judicata. In State v. Weber, 5th Dist. Fairfield No. 17-CA-36, 2018-Ohio-3174, we noted

our authority on an issue similar to that raised by Williams is at odds with decisions from

other Courts of Appeal. Specifically, the Eighth District in State v. Anderson, 2016-Ohio-

7044, 62 N.E.3d 229, ¶ 12 (8th Dist.) (“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.”) and Twelfth District in State v. Ervin, 12th Dist.

No. CA2016-04-079, 2017-Ohio-1491, 89 N.E.3d 1, ¶ 23 (“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.”) We therefore certified a
Fairfield County, Case No. 17-CA-43                                                        5

conflict to the Ohio Supreme Court in State v. Hitchcock, 5th Dist. Fairfield No. 16-CA-41,

2017-Ohio-8255, motion to certify allowed, 152 Ohio St.3d 1405, 2018-Ohio-723, 92

N.E.3d 877. Hitchcock was originally held for opinion in State v. Paige, 153 Ohio St.3d

214, 2018-Ohio-813, 103 N.E.3d 800. Paige was decided on March 7, 2018. On April 25,

2018, the court ordered sua sponte that Hitchcock no longer be held for decision in Paige,

and lifted the stay of briefing. Thus Hitchcock remains pending.

       {¶ 13} Because this particular sentencing issue presents a split of authority among

the Courts of Appeal, and is presently pending before the Ohio Supreme Court we have

previously found res judicata inapplicable. State v. Weber, 5th Dist. Fairfield No. 17-CA-

36, 2018-Ohio-3174, ¶ 19. Because this appeal raises the issue of the trial court's

statutory authority to sentence Williams in a certain way, we find the sentence is not res

judicata. Id.

       {¶ 14} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234,

at ¶ 22, the Ohio Supreme Court stated “[o]ur jurisprudence on void sentences “reflects

a fundamental understanding of constitutional democracy” that the power to define

criminal offenses and prescribe punishment is vested in the legislative branch of

government and that courts may impose sentences only as provided by statute. Id., citing

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 21-22. Because

“[n]o court has the authority to impose a sentence that is contrary to law,” when the trial

court disregards statutory mandates, “[p]rinciples of res judicata, including the doctrine of

the law of the case, do not preclude appellate review. The sentence may be reviewed at

any time, on direct appeal or by collateral attack.” Id., citing Fischer at ¶ 30.
Fairfield County, Case No. 17-CA-43                                                        6


       {¶ 15} For the same reasons, we also reject the state’s argument that Williams’

may not appeal his sentence because he entered a negotiated plea pursuant to R.C

2953.08(D). A sentence imposed without statutory authority is not “authorized by law” as

required by R.C. 2953.08(D)(1).

       {¶ 16} Because Williams’ appeal is not precluded by res judicata, nor his

negotiated plea, we turn to the question of the trial court’s authority to sentence Williams

to a term of incarceration on counts two and four, and a term of community control on

count one.

                                         State v. Hitchcock

       {¶ 17} As Williams notes, his success here hinges upon the resolution of State v.

Hitchcock, 5th Dist. Fairfield No. 16-CA-41, 2017-Ohio-8255, appeal accepted, 152 Ohio

St.3d 1405, 2018-Ohio-723, 92 N.E.3d 877. In that matter, we determined, pursuant to

applicable sentencing statutes, that the trial court was permitted to impose two sixty-

month prison terms, consecutive to each other (Counts I and II), and consecutive to a

term of community control (Count III).

       {¶ 18} Similarly, in State v. Kinder, 5th Dist. Delaware No. 03CAA12075, 2004-

Ohio-4340, the defendant was sentenced to four years in prison for reckless homicide

and a term of community control not to exceed five years for complicity to possession to

drugs, with the term of community control commencing upon the completion of the prison

sentence. Kinder argued on appeal that the court erred in ordering consecutive

sentences, and specifically erred in failing to make the requisite findings according to R.C.

2929.14(E). In addressing his argument, we cited to R.C. 2929.13(A), which provides

unless a specific sanction is required to be imposed or is precluded from being imposed
Fairfield County, Case No. 17-CA-43                                                      7


pursuant to law, a court may impose any sanction or combination of sanctions provided

in R.C. 2929.14 to 2929.18. Therefore, we found the court “has discretion to find

community control sanctions appropriate for one offense, while finding a prison term

appropriate for a separate offense, and order those sentences be served consecutively.”

Kinder at ¶ 31. Turning to Kinder's specific claim of error, we concluded community control

sanctions did not render him imprisoned within the meaning of R.C. 1.05, and the trial

court was therefore not required to set forth findings for consecutive sentences. Id. at ¶

34.

      {¶ 19} Following Kinder, in State v. O'Connor, 5th Dist. Delaware No. 04CAA04-

028, 2004-Ohio-6752, O’Conner claimed error in sentencing him to community control in

one case and imposing maximum sentences in another case, and ordering them to be

served consecutively. Relying on R.C. 2929.13(A) and our decision in Kinder, we rejected

O'Connor's argument and affirmed the sentences. Id. at ¶¶ 27–30. Likewise, in State v.

Boylen, 5th Dist. Tuscarawas 2012AP060039, 2012–Ohio–5503, we concluded although

the trial court did not specifically use the word “consecutive” when ordering Boylen to

serve a community control sanction following an unrelated term of imprisonment already

being served, in placing Boylen on community control “upon his release from

incarceration on another matter,” the sentence was clearly consecutive, and did not

exceed the five year limitation of R.C. 2929.15. Id. at ¶¶ 10-11, citing Kinder, supra, and

O'Connor, supra.

      {¶ 20} After these decisions, the Ohio Supreme Court held in State v. Anderson,

143 Ohio St. 3d 173, 35 N.E.3d 512, 2015-Ohio-2089, a trial court may not impose a

community control sanction, specifically, a no-contact order, and a prison sentence on
Fairfield County, Case No. 17-CA-43                                                       8


the same felony count. The court held 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. Id. at ¶ 13, citing Wilson v.

State, 5 N.E.3d 759 (Indiana 2014).

       {¶ 21} After the Supreme Court’s Anderson decision, the Eighth District sitting en

banc addressed the issue raised in Hitchcock, supra, in the like titled but unrelated case

of State v. Anderson, 62 N.E.3d 229, 2016-Ohio-7044 (8th Dist. Cuyahoga). In that

matter, Anderson was sentenced to an indefinite term at a Community Based Corrections

Facility consecutive to a prison term. Id. ¶ 15. Relying on the Supreme Court’s language

concerning a court's limitation to sentences authorized by statute as opposed to discretion

to impose a sentence not prohibited by statute, the majority concluded the Ohio Revised

Code provides no authority to impose a prison sentence consecutively to a community

control sanction, whether such community control sanction is residential or non-

residential. Id. at ¶¶ 16-19. Finding no express statutory authority for consecutive

sentences of prison and community control, the court vacated the community control

sanction and remanded for resentencing.

       {¶ 22} In Hitchcock, supra ¶ 14-22, we disagreed with the majority’s decision in

Anderson as follows:



              The Eighth District specifically rejected the reasoning of this Court in

              Kinder, as well as its own prior precedent and decisions of the

              Fourth, Sixth, and Twelfth Districts, finding the rationale in those

              cases relied on the proposition the legislature had not prohibited the
Fairfield County, Case No. 17-CA-43                                                    9


            imposition of consecutive community control sanctions, and such

            rationale was rejected by the Supreme Court in Anderson, supra. Id.

            at ¶ 21. The majority further rejected our rationale in Kinder

            concerning the discretion given courts pursuant to R.C. 2929.13(A),

            finding the Ohio Supreme Court rejected similar language in R.C.

            2929.16 as rationale for the imposition of consecutive jail sentences

            in State v. Barnhouse, 102 Ohio St.3d 221, 808 N.E.2d 874, 2004-

            Ohio-2492.

            In a dissent joined by four other members of the Eighth District en

            banc panel, Judge Boyle concluded a trial court has discretion and

            authority to impose a prison term on one felony offense and

            community control on a separate offense, and order the community

            control sanctions commence upon the offender's release from

            prison. The dissent noted the trial court was attempting to punish

            Anderson for his conduct and protect the public, while at the same

            time rehabilitate a 22-year-old offender so he could become a more

            productive and law-abiding citizen after he served his sentence.

            However, the majority's decision essentially removed the court's

            discretion which is counterintuitive and against the purposes and

            principles of felony sentencing under R.C. 2929.11. Id. at ¶ 38. The

            majority decision eliminated a trial court's discretion to impose

            community control sanctions on a separate felony count but would

            leave intact the court's authority to impose a prison term on that count
Fairfield County, Case No. 17-CA-43                                                    10


            to be served consecutively to the other felony counts, which directly

            contravenes the General Assembly's directive that trial courts use

            “the minimum sanctions necessary” to accomplish the principles and

            purposes of felony sentencing. Id. at ¶ 48.

            The dissent further disagreed with the majority concerning the

            application of R.C. 2929.13(A), concluding Barnhouse is limited to

            prohibiting trial courts from imposing consecutive jail sentences. Id.

            at ¶ 45. The dissenting opinion concluded the Ohio Supreme Court's

            decision in Anderson is not applicable to the instant issue, and the

            en banc majority applied the dicta in that opinion too broadly. Id. at ¶

            46.

            Finally, the dissent noted the language ordering the community

            control sanction to be served consecutively to the prison term is

            superfluous:



            Moreover, it is axiomatic that an offender cannot serve a sentence of

            community control sanctions while in prison. Thus, community

            control sanctions must begin when an offender is released from

            prison. Because of this, it is my view that a trial court need not even

            use the words “consecutive” or “concurrent” when sentencing an

            offender to prison on one felony offense and community control

            sanctions on a separate felony offense because community control
Fairfield County, Case No. 17-CA-43                                                  11


            sanctions cannot commence until the offender is released from

            prison. Id. at ¶ 49.



            The Twelfth District revisited its prior precedent subsequent to the

            Eighth District's decision in Anderson and agreed with the majority

            decision of the Eighth District. State v. Ervin, 12th Dist. Butler No.

            CA2016-04-079, 2017-Ohio-1491. However, we are persuaded by

            the rational of the dissenting opinion in Anderson.

            R.C. 2929.13(A) provides in pertinent part:



             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.



            We agree with the dissenting opinion in Anderson concerning the

            majority's overbroad application of Barnhouse in rejecting R.C.

            2929.13(A) as support for the trial court's sentence in the instant

            case. Barnhouse specifically held, “Rather, our decision only

            addresses the narrow question of whether the trial court may impose
Fairfield County, Case No. 17-CA-43                                                     12

            consecutive jail sentences under R.C. 2929.16(A)(2).” Barnhouse,

            supra, ¶ 18. Further, R.C. 2929.11(A) states:



            A court that sentences an offender for a felony shall be guided by the

            overriding purposes of felony sentencing. The overriding purposes

            of felony sentencing are to protect the public from future crime by the

            offender and others and to punish the offender using the minimum

            sanctions that the court determines accomplish those purposes

            without imposing an unnecessary burden on state or local

            government resources. To achieve those purposes, the sentencing

            court shall consider the need for incapacitating the offender,

            deterring the offender and others from future crime, rehabilitating the

            offender, and making restitution to the victim of the offense, the

            public, or both.



            Under the Eighth District's decision, the trial court in the instant case

            could have sentenced Appellant to three sixty-month terms of

            imprisonment, to be served consecutively, but could not sentence

            Appellant to two sixty-month terms of imprisonment to be served

            consecutively, and a term of community control, to commence upon

            his release from prison. Such a result flies in the face of the directive

            in R.C. 2929.11(A) to use the minimum sanctions the court

            determines necessary to accomplish the purposes of felony
Fairfield County, Case No. 17-CA-43                                                  13


             sentencing, without imposing an unnecessary burden on state or

             local government resources.

             We further agree the language “consecutive” or “concurrent” is

             superfluous when ordering a community control sanction for one

             offense and a prison sentence for another offense, as the offender

             cannot begin to serve the community control sanction until his or her

             release from prison. Therefore, the sentence of community control in

             the instant case does not implicate the consecutive sentencing

             directives found in R.C. 2929.14(C)(4), which apply when “multiple

             prison terms are imposed on an offender.” See also Kinder, supra, ¶

             34.


      {¶ 23} The instant case is no different. Based on our decision in Hitchcock,

Williams’ assignment of error is overruled.
Fairfield County, Case No. 17-CA-43                                                 14


      {¶ 24} The judgement of the Fairfield County Court of Common Pleas Court is

affirmed.



By Wise, Earle, J.

Wise, John, P.J. and

Hoffman, J. concur.




EEW/rw10/17
