[Cite as State v. Martin, 2014-Ohio-3913.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100723




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                        GINO MARTIN
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
               Case No. CR-12-568316-B, CR-13-572752-A, CR-13-578497-B

        BEFORE: Rocco, J., Jones, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 11, 2014
                                      -i-

ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Amy Venesile
     Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:
       {¶1} Defendant-appellant Gino Martin appeals from his sentences for numerous

trafficking offenses and for having a weapon while under a disability.                       On appeal,

Martin asserts that the trial court erred in imposing a “split” sentence that imposed both a

prison term and community control sanctions for the same offense.                   Because there is no

split sentence in this case, we reject Martin’s argument and we affirm the trial court’s

final judgment.

       {¶2}       This case involves three different case numbers and three separate journal

entries.     The trial court rendered sentences in all three cases on November 25, 2013.

Each case is discussed below.

Case Number CR-13-572752-A

       {¶3} In CR-13-572752-A, Martin pleaded guilty to three counts of trafficking

under R.C. 2925.03(A)(2), all fifth-degree felonies (Counts 2, 6, 7); to one count of

trafficking under R.C. 2925.03(A)(1), a fifth-degree felony (Count 9); and to one count of

having a weapon while under a disability under R.C. 2923.13(A)(3), a third-degree felony

(Count 11). Two of the counts carried forfeiture specifications under R.C. 2941.1417.

       {¶4} Martin was sentenced to 6 months imprisonment on count 2, to 12 months

imprisonment on count 9, and to 9 months imprisonment on count 11, all to run

concurrent with all other counts in the case.          The trial court determined that counts 6 and

7 merged, and the trial court sentenced Martin on count 7 to a term of 6 months

imprisonment, to run concurrent with all other counts in the case.1 In total, Martin


       1
           The original journal entry contained a clerical error stating that counts 10 and 7 merge.
would serve 12 months in prison for the counts to which he pleaded guilty in

CR-13-572752-A.        The journal entry further provided that, upon completion of his

prison sentences, Martin was to be delivered to the county jail so that he could start

serving his community-control sanctions in CR-13-578497-B and CR-13-568316-B (see

below).    Martin was also ordered to forfeit a handgun, an automobile, and cash.

Case Number CR-13-578497-B

       {¶5} In Case Number CR-13-578497-B, Martin pleaded guilty to a single

trafficking offense under R.C. 2925.03(A)(2), a fifth-degree felony.           The trial court

sentenced Martin to one year of community control sanctions under the supervision of the

adult probation department.         The trial court ordered that Martin be screened for

placement into the Community Based Correctional Facility (“CBCF”). If found to be

eligible, Martin was ordered to successfully complete the CBCF program.          The sentence

further provided that if Martin violated the terms and conditions of the community control

sanctions, he could be sanctioned to up to 12 months in prison.




Case Number CR-12-568316-B

       {¶6} In CR-12-568316-B, Martin pleaded guilty to a single trafficking offense

under R.C. 2925.03(A)(1), a fifth-degree felony.        The trial court sentenced Martin to one

year of community control sanctions under the supervision of the adult probation


This error was corrected in a nunc pro tunc entry on May 19, 2014.
department.    The community control sanctions would run concurrent with the

community control sanctions imposed in CR-13-578497-B. The trial court ordered that

Martin be screened for placement into the CBCF. If found to be eligible, Martin was

ordered to successfully complete the CBCF program. If Martin violated the terms and

conditions of the community control sanctions, he could be sanctioned to up to 12 months

in prison to be served concurrent with CR-13-578497-B.

       {¶7} Martin filed notices of appeal in all three cases and sets forth a single

assignment of error for our review:

       The trial court erred in imposing a split sentence, which included both a

       prison term and community control sanctions, where the sanctions

       automatically included additional incarceration.

We will not reverse the sentence imposed in this case unless we clearly and convincingly

find that it is contrary to law. See R.C. 2953.08(G)(2).        Because the sentence is not

contrary to law, we find no merit to the assignment of error.

       {¶8} “[T]he sentencing statute does not allow a trial court to impose both a prison

sentence and community control for the same offense.” (Emphasis added.) State v.

Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d 29, ¶ 5 (8th Dist.). Such

split sentences are prohibited; instead, the trial court must “‘decide which sentence is

most appropriate — prison or community control sanctions — and impose whichever

option is deemed to be necessary.’” Id., quoting State v. Vlad, 153 Ohio App.3d 74,

2003-Ohio-2930, 790 N.E.2d 1246, ¶ 16.
       {¶9} But where a trial court sentences a defendant for separate offenses, the trial

court may impose a prison term for one offense and community control sanctions for

another offense, and it may order the sentences to be run     consecutively. State v. May,

8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766, ¶ 29-31, citing R.C. 2929.13(A) and

State v. Connor, 5th Dist. Delaware No. 04CAA04-028, 2004-Ohio-6752, ¶ 28-29.         See

also State v. LaSalla, 8th Dist. Cuyahoga No. 99424, 2013-Ohio-4596, ¶ 34.

       {¶10} In the instant case, the trial court imposed concurrent prison sentences for

each of the separate counts in CR-13-572752-A.         The trial court imposed a community

control sanction for the single count in CR-13-578497-B. And the trial court imposed a

separate community control sanction for the single count in CR-12-568316-B. The

community control sentences were to run concurrent with one another and consecutive to

the prison sentences.   The trial court did not impose a split sentence on any one of the

counts.   Martin’s argument, therefore, lacks merit.        This case is governed by our

decision in May and we overrule the sole assignment of error.

       {¶11} The trial court’s judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, JUDGE

LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR
