[Cite as State v. Beaver, 2020-Ohio-751.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. 2019 CA 00024
                                                :
 JAMES BEAVER                                   :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County Court
                                                    of Common Pleas, Case No. 2018 CR
                                                    0731



JUDGMENT:                                           REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                             February 28, 2020




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 R. KYLE WITT                                       JAMES A. ANZELMO
 FAIRFIELD COUNTY PROSECUTOR                        446 Howland Dr.
                                                    Gahanna, OH 43230
 BRIAN T. WALTZ
 239 West Main St., Suite 101
 Lancaster, OH 43130
Fairfield County, Case No. 2019 CA 00024                                                    2



Delaney, J.

       {¶1} Defendant-Appellant James Beaver appeals the March 8, 2019 judgment

entry of sentence 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} On March 4, 2019, Defendant-Appellant James Beaver entered a plea of

guilty to (1) aggravated burglary, a first-degree felony in violation of R.C. 2911.11(A)(2)

and (B); (2) rape, a first-degree felony in violation of R.C. 2907.02(A)(2) and (B), with a

firearm specification; (3) kidnapping, a first-degree felony in violation of R.C.

2905.01(B)(2) and (C)(1); (4) violating a protection order, a third-degree felony in violation

of R.C. 2919.27(A)(2) & (B)(4); and (5) inducing panic, a fifth-degree felony in violation of

R.C. 2917.31(A)(3) & (C)(4)(a).

       {¶4} The State and Beaver jointly recommended a prison sentence of ten years.

       {¶5} Via judgment entry of sentence filed on March 8, 2019, the trial court found

Beaver guilty on all charges. The trial court sentenced Beaver to four years in prison for

aggravated burglary, six years in prison for rape with a firearm specification, four years in

prison for kidnapping, 5 years (tolled) and 36 months reserved of community control for

violating a protection order, and five years (tolled) and 12 months reserved of community

control for inducing panic. The four-year prison term for kidnapping was to be served

concurrently with the prison term for aggravated burglary. The trial court stated at the

sentencing hearing, “[a]s to Counts 5 [violating a protection order] and 6 [inducing panic],

the Court sentences you directly to community control supervision for a period of five
Fairfield County, Case No. 2019 CA 00024                                              3


years, beginning upon your release from imprisonment as to Counts 1, 2 and 3.” (T. 37-

38). In addition to the standard terms and conditions of community control supervision,

the trial court required Beaver be evaluated for potential admission into a residential

mental health treatment facility. (T. 38). The sentencing entry stated as to consecutive

sentences:

      Counts 1 [aggravated burglary] and the 3 year firearm specification

      attached to Count 2 [rape] are consecutive for a total imposed sentence of

      10 years. The reserved sentence on Counts 5 [violating a protection order]

      and 6 [inducing panic], if imposed, are consecutive to each other and

      consecutive to Counts 1 and 2.

(March 8, 2019 Judgment Entry of Sentence).

      {¶6} Beaver now appeals the March 8, 2019 sentencing entry.

                              ASSIGNMENT OF ERROR

      {¶7} Beaver raises one Assignment of Error:

      {¶8} “THE TRIAL COURT ERRED BY ORDERING JAMES BEAVER TO

SERVE HIS PRISON SENTENCE CONSECUTIVE TO HIS COMMUNITY CONTROL

SENTENCE, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS UNDER THE FIFTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

                                       ANALYSIS

      {¶9} In Beaver’s sole Assignment of Error, he argues the trial court erred when

it imposed a term of community control on two felony offenses to be served consecutively

to a term of imprisonment imposed on three different felony offenses. Beaver contends
Fairfield County, Case No. 2019 CA 00024                                                 4


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.

       {¶10} 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.

       {¶11} 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
Fairfield County, Case No. 2019 CA 00024                                                 5


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

another felony count. Id.

       {¶12} Beaver and the State jointly recommended a prison term of ten years. R.C.

2953.08(D)(1) provides that “[a] sentence imposed upon a defendant is not subject to

review under this section if the sentence is authorized by law, has been recommended

jointly by the defendant and the prosecution in the case, and is imposed by a sentencing

judge.” Beaver contends his sentence to community control consecutive to his prison term

is not authorized by law pursuant to Hitchcock, supra, 2019-Ohio-3246, nor did the

defendant and prosecution jointly recommend community control.

       {¶13} The State concedes the trial court erred in sentencing Beaver to a term of

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

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

       {¶14} 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

for the felony offenses of violating a protection order and inducing panic consecutive to a

term of imprisonment imposed for the felony offenses of aggravated burglary, rape, and

kidnapping. Beaver’s sentence as to community control is reversed and vacated, and this

matter is remanded to the trial court for further proceedings.

       {¶15} Beaver’s sole Assignment of Error is sustained.
Fairfield County, Case No. 2019 CA 00024                                                 6


                                     CONCLUSION

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

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

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

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.
