[Cite as State v. Anderson, 2015-Ohio-5136.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102427
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARLO A. ANDERSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585997-A
BEFORE: S. Gallagher, J., Stewart, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 10, 2015
ATTORNEY FOR APPELLANT
Thomas A. Rein
700 W. St. Clair
Suite 212
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John Patrick Colan
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Marlo Anderson appeals the trial court’s imposition of community control sanctions
(two years of community control including an indefinite term of confinement in a community
based correctional facility (“CBCF”)) on an identity fraud count, to be served consecutively to a
three-year aggregate sentence of imprisonment (consecutive terms of one year on a firearm
specification and two years for robbery). Anderson also was sentenced to one year for
abduction, to be served concurrently with the three-year term stemming from the robbery count
that is not an issue in the current appeal. Although Anderson pleaded guilty to aggravated theft,
that count merged with the identity theft count and, therefore, is not part of Anderson’s
conviction.
{¶2} Anderson was charged with abduction, robbery, and identity theft for luring a victim
into Anderson’s car and robbing him at gunpoint. When the victim entered the car, Anderson
and three accomplices took the victim’s cell phone and bank card. One of the attackers used a
Taser on the back of the victim’s neck several times to torture the victim into divulging his PIN.
The victim finally relented, and the quartet proceeded to three separate ATMs where Anderson
posed as the victim to withdraw cash. When the attackers stopped at one of the ATMs, the
victim managed to escape. Anderson drove by the victim’s home in an attempt to find him.
{¶3} Anderson filed the current appeal after pleading guilty and being sentenced.
Anderson claims the trial court failed to “properly” consider the merger issue regarding the
robbery and abduction charges, arguing that his state of mind, or animus, was never addressed.
In this case, the trial court determined that the acts constituting the robbery and those constituting
the abduction were committed with separate conduct. Because the acts were deemed to be
committed separately, no inquiry into the defendant’s animus was necessary. The Ohio
Supreme Court held that
offenses cannot merge and the defendant may be convicted and sentenced for
multiple offenses: (1) [if] the offenses are dissimilar in import or significance —
in other words, each offense caused separate, identifiable harm [or was committed
against separate victims], (2) [if] the offenses were committed separately, [or] (3)
[if] the offenses were committed with separate animus or motivation.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. The merger analysis
was stated in the disjunctive: any one of the factors warrants separate punishment. In this case,
the trial court determined that the offenses were committed separately. The trial court was not
required to determine Anderson’s animus and did not err by avoiding any discussion of
Anderson’s “state of mind.” Anderson’s argument is overruled.
{¶4} Anderson also challenges the imposition of a two-year term of community control to
be served consecutively to his three-year term of imprisonment — specifically imposed by the
trial court pursuant to R.C. 2929.14(C)(4). It should be noted that Anderson also has a
mandatory three-year term of postrelease control. It is not entirely clear why the two-year term
of community control was imposed if Anderson was already subjected to a mandatory period of
monitoring following his release. At best, it seems fiscally duplicative to have two different
agencies monitoring Anderson upon his release.
{¶5} Nevertheless, we agree with Anderson’s claim that the trial court was without
authority to impose community control sanctions to be served consecutively to the prison term.
As a result, the community control sentence on the identity fraud count is void as a matter of law.
{¶6} After oral argument, additional briefing was requested from the parties to address
the issue of whether R.C. 2929.13(A) or 2929.41(A) or any other statutory provision allows for
the consecutive imposition of community control sanctions, either with a prison term or without
a prison term, pursuant to State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d
874, or State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512.
{¶7} The state filed a supplemental brief advancing the same arguments already briefed
and further claimed this court lacked authority to sua sponte question the validity of a sentence.
The state’s claim is without merit for two reasons.
{¶8} First, sentences not authorized by law are void, and the issue may be addressed sua
sponte by an appellate court. State v. T.M., 8th Dist. Cuyahoga No. 101194, 2014-Ohio-5688, ¶
25 (Stewart, J., dissenting), citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, ¶ 20, and State v. Hooks, 135 Ohio App.3d 746, 750, 735 N.E.2d 523 (10th
Dist.2000); State v. Ocel, 7th Dist. Jefferson No. 08 JE 22, 2009-Ohio-2633, ¶ 2; State v. Keslar,
4th Dist. Hocking No. 98CA20, 1999 Ohio App. LEXIS 5570, *17 (Nov. 17, 1999), citing State
v. Bruce, 95 Ohio App.3d 169, 642 N.E.2d 12 (12th Dist.1994), and State v. Thomas, 80 Ohio
App.3d 452, 609 N.E.2d 601 (3d Dist.1992).
{¶9} Second, and more importantly, although our decision to seek additional briefing was
initiated sua sponte, the supplemental briefing provided both parties the opportunity to brief the
issue first identified, but not fully developed, in Anderson’s brief. As the Ohio Supreme Court
has noted, appellate courts may decide cases on the basis of new, unbriefed issues if the parties
are afforded notice and an opportunity to be heard. State v. Tate, 140 Ohio St.3d 442,
2014-Ohio-3667, 19 N.E.3d 888, ¶ 21. The purpose of the supplemental briefing was to afford
the parties an opportunity to be heard on the dispositive issue.
{¶10} As the state notes, courts have routinely held that community control sanctions on
one count can be imposed consecutively to a prison term on another. See, e.g., State v. Kinder,
5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340; State v. Blunk, 8th Dist. Cuyahoga No.
84304, 2004-Ohio-6910; State v. Purvis, 8th Dist. Cuyahoga No. 101608, 2015-Ohio-1149; State
v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8. None of the cases, however,
addressed a trial court’s authority to impose such sanctions; most simply presume the authority
exists. Any prior precedent in this district purportedly authorizing trial courts to impose
community control sanctions to be served consecutively is invalid. Barnhouse at ¶ 12.
{¶11} For example, although the panel concluded in Purvis that consecutive residential
sanctions pursuant to R.C. 2929.16 can be imposed on multiple felonies, the panel relied on State
v. Barnhouse, 4th Dist. Athens No. 02CA22, 2002-Ohio-7082, a case subsequently overturned by
the Ohio Supreme Court. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, at
¶ 12.
{¶12} In Barnhouse, the Ohio Supreme Court held that trial courts lack authority to
impose consecutive jail sentences imposed pursuant to R.C. 2929.16(A)(2), because R.C.
2929.41 mandates that sentences of imprisonment that include a felony jail sentence must be
served concurrently to any other term. More importantly, the Ohio Supreme Court concluded
that although the language of R.C. 2929.16(A), authorizing the imposition of a combination of
sanctions for a “felony offense,” in the singular, may indicate “that multiple [sentences] may be
imposed where the criminal has been found guilty of multiple felony offenses[,]” such an
interpretation is irrelevant to whether the sentences must be served consecutively or concurrently.
Id. R.C. 2929.41(A) provides no exception to the statutory requirement that trial courts impose
the community control sanctions to be served concurrently. The panel’s decision in Purvis,
therefore, contravened binding precedent, and we cannot rely on that decision. R.C. 2929.16
does not authorize consecutive service of jail terms on multiple felony offenses. We are bound
by the Ohio Supreme Court’s decision in Barnhouse. See State v. Abernathy, 8th Dist.
Cuyahoga No. 102716, 2015-Ohio-4769, ¶ 9-10.
{¶13} The state also argues that consecutive service of community control sanctions is
statutorily authorized based on R.C. 2929.15(A)(1), which provides the following:
[I]n addition to the mandatory prison term or mandatory prison term and
additional prison term imposed under that division, the court also may impose
upon the offender a community control sanction or combination of community
control sanctions under section 2929.16 or 2929.17 of the Revised Code, but the
offender shall serve all of the prison terms so imposed prior to serving the
community control sanction.
Although another panel in this district agreed with the state’s argument and cited R.C.
2929.15(A)(1) for the proposition that an offender shall serve all prison terms imposed before
serving the community control sanction, that provision is limited to sentences imposed pursuant
to divisions (G)(1) and (2) of section 2929.13 of the Revised Code, for felony OVI offenses.
State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766, ¶ 28. That portion of R.C.
2929.15(A)(1) had no applicability to the sexual battery conviction underlying the May case and,
more importantly, has no applicability to the current facts of this case. Id. at ¶ 1.
{¶14} Further, any reliance on R.C. 2929.13(A), which provides that a court may impose
a combination of sanctions that are provided in sections 2929.14 to 2929.18 as authorizating
consecutive sentences, like in May and Heidrick, is misplaced. See State v. Leedy, 4th Dist.
Meigs Nos. 13CA7 and13CA8, 2015-Ohio-1718, ¶ 7-8, citing State v. Heidrick, 8th Dist.
Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8-9; Kinder, 5th Dist. Delaware No. 03CAA12075,
2004-Ohio-4340, at ¶ 31; State v. Randolph, 12th Dist. Butler No. CA2003-10-262,
2004-Ohio-3350, ¶ 6-7; State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-5677, ¶ 4
(collectively relying on R.C. 2929.13(A) as authority to order consecutive service of community
control sanctions). In Barnhouse, the Ohio Supreme Court held that similar language had no
impact on the determination of whether the legislature authorized the imposition of consecutive
sentences.
{¶15} R.C. 2929.13(A) authorizes a court to impose “a sentence[, a combination of
sanctions pursuant to R.C. 2929.14 through 2929.18,] on an offender for a felony.” (Emphasis
added.) The statute is limited to imposing a combination of sanctions on a singular felony
offense and is silent as to imposing consecutive service of community control sentences upon
multiple felonies. Barnhouse at ¶ 15; State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824, ¶ 9. R.C. 2929.15(A) and 2929.16(A) also use similar language authorizing trial
courts to impose a combination of community control sanctions for a “felony offense.” As the
Ohio Supreme Court noted in Barnhouse, the legislature’s indication that a combination of
sanctions may be imposed for a felony offense is immaterial to resolving whether the sanctions
can be imposed consecutively to one another. Barnhouse, 102 Ohio St.3d 221,
2004-Ohio-2492, 808 N.E.2d 874, at ¶ 15. Authorizing the combination of community control
sanctions for a felony offense is not authorization to impose consecutive service of those
sanctions. Id.
{¶16} In order to determine whether the trial court possessed the authority to order the
imposition of community control sanctions to be served consecutively to the prison term, it must
be determined whether R.C. 2929.41(A) provides an exception to concurrent service of those
sanctions. As the state concedes, the term of confinement in a CBCF is a community control
sanction. State v. Richmond, 8th Dist. Cuyahoga No. 97531, 2012-Ohio-3946, ¶ 13;
R.C. 2929.16(A)(1). The only issue in this case is whether consecutive service of community
control sanctions can be imposed. Trial courts may only impose sentences specifically
authorized by statute. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512.
“‘Judges have no inherent power to create sentences.’” Id., citing State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22.
{¶17} The trial court in this case exceeded the authority granted by the legislature by
imposing consecutive service of the community control sanctions on the individual felony
sentence. No provision in the Ohio Revised Code authorizes the imposition of consecutive
community control sanctions.
{¶18} A plain reading of R.C. 2929.41(A) contradicts the state’s position. R.C.
2929.41(A) provides as follows:
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.
(Emphasis added.) There are only three exceptions to the concurrent service of jail or prison
terms or a sentence of imprisonment: (1) for misdemeanor sentences pursuant to R.C.
2929.41(B); (2) for felony prison terms pursuant to R.C. 2929.14(C)(4); or (3) for sentences for
certain violent sex offenses pursuant to R.C. 2971.03. In consideration of the fact that the first
and third exceptions are inapplicable to the current case, it logically follows that whether the
community control sanctions, including the two-year term at a CBCF, can be imposed
consecutively turns on two issues: (1) whether the community residential sanction of CBCF is a
sentence of imprisonment that must be served concurrently with any other prison or jail term, and
(2) whether any other provision of the Revised Code authorizes the imposition of nonresidential
community control sanctions to be served consecutively to any other sentence.
{¶19} Contrary to the state’s position, R.C. 2929.14(C)(4) is limited to the imposition of
consecutive “prison terms” and is not applicable to the current case. State v. Maloney, 12th
Dist. Clermont No. CA99-01-006, 1999 Ohio App. LEXIS 4600, *7 (Sept. 27, 1999); State v.
Kroger, 12th Dist. Clermont No. CA99-05-050, 2000 Ohio App. LEXIS 1393 (Apr. 3, 2000).
“Prison” is defined as a residential facility used for the confinement of convicted felony
offenders under the control of the Department of Rehabilitation and Correction. R.C.
2929.01(AA). On the other hand, community control sanctions are not prison terms as defined
by the legislature. “‘Community control sanction’ means a sanction that is not a prison term
and that is described” in sections 2929.15 through 2929.18 of the Revised Code. (Emphasis
added.) R.C. 2929.01(E). Courts are authorized to impose CBCF and other residential
sanctions as a community control sanction pursuant to R.C. 2929.16 and 2929.17. Community
control sanctions are not prison terms as statutorily defined. R.C. 2929.14(C)(4) is simply
inapplicable.
{¶20} Further, as the Ohio Supreme Court recognized, there is no definition for “sentence
of imprisonment” in the Revised Code. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808
N.E.2d 874, at ¶ 12. R.C. 1.05(A) provides that “imprisoned” or “imprisonment” means being
“imprisoned under a sentence imposed for an offense * * * in * * * a community-based
correctional facility.” Serving a term in a CBCF is “imprisonment” as statutorily defined. It
stands to follow that the imposition of a term at a CBCF is a “sentence of imprisonment.”
Barnhouse. Because no exceptions in R.C. 2929.41(A) authorize the consecutive service of a
“sentence of imprisonment,” a term of imprisonment at a CBCF cannot be imposed consecutive
to a prison term.
{¶21} The only remaining question is whether any nonresidential community control
sanctions pursuant to R.C. 2929.17 may be imposed consecutive to a prison term. In this case,
the trial court ordered two years of monitoring by the probation department following Anderson’s
release from prison. The state has not provided, nor can we locate, any provision of the Revised
Code authorizing the imposition of consecutive nonresidential community control sanctions, to
take effect following an offender’s release from a prison term, except for certain OVI offenses.
R.C. 2929.15(A)(1). Trial courts may only impose sentences specifically authorized by statute.
Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, at ¶ 10.
{¶22} Sections R.C. 2929.13 through 2929.18 are silent with respect to imposing
nonresidential sanctions to be served consecutively to prison terms. Further, R.C. 2929.41 only
addresses prison terms, jail terms, or sentences of imprisonment. Nonresidential community
control sanctions are not prison terms. R.C. 2929.01(E). Nor are they jail terms. R.C.
2929.01(S) (“jail term” means a term in a jail that is imposed pursuant to R.C. 2929.24 and
2929.25, both of which pertain to misdemeanor sentencing). Because nonresidential sanctions
are not prison or jail terms, and because the facts of this case do not involve R.C. 2971.03, there
was no statutory authority for the imposition of nonresidential community control sanctions to be
served consecutively to other sentences. The only three exceptions to concurrent service
provided by R.C. 2929.41 are inapplicable to the current facts.
{¶23} Further, it should be noted that whether nonresidential sanctions are considered a
“sentence of imprisonment” is irrelevant to our decision as a result of the legislature’s silence
with regard to the imposition of consecutive nonresidential community control sanctions. If
nonresidential sanctions are considered a “sentence of imprisonment,” the sanctions must be
imposed concurrently because no exception to concurrent service of “sentences of imprisonment”
exists in R.C. 2929.41(A). If they are not, the legislature must specifically authorize the
consecutive imposition of the sanctions before such a sanction can be validly imposed. From
the legislative silence on the latter, we must conclude that imposition of consecutive
nonresidential sanctions pursuant to R.C. 2929.17 is not authorized by law. See Anderson. As
courts are continually reminded, statutory language must be given its plain and ordinary meaning.
N.E. Ohio Regional Sewer Dist. v. Bath Twp., Slip Opinion No. 2015-Ohio-3705, ¶ 12, citing
Youngstown Club v. Porterfield, 21 Ohio St.2d 83, 86, 255 N.E.2d 262 (1970). In this case, the
legislature has not authorized the imposition of consecutive service of community control
sanctions. The silence is deafening. Had the legislature intended to authorize courts to impose
community control sanctions consecutive to prison terms, R.C. 2929.41 could have been drafted
including such an exception to concurrent sentencing.
{¶24} In light of the foregoing, we must reverse Anderson’s conviction as it pertains to
the imposition of the community control sanctions. Because there is no statutory authority for
the imposition of consecutive community control sanctions, the trial court was without authority
to impose the same. The sentence imposed on the identity fraud count is void and must be
vacated. Anderson’s conviction for identify theft is vacated, and the case is remanded.
Anderson’s conviction for robbery and abduction is otherwise affirmed.
It is ordered that appellant and appellee share 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.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., CONCURS and
MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION
MARY J. BOYLE, J., DISSENTING:
{¶25} I respectfully dissent. This court and others have long held that a trial court can
impose a prison term on one offense and community control sanctions on another offense and
order that the community control sanctions commence once the offender is released from prison.
{¶26} In State v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739 (which this
writer was a panel member), this court was faced with nearly an identical set of facts. The
defendant was sentenced to five years in prison on one count and one year of community control
sanctions on another count.
{¶27} The trial court in Heidrick ordered, among other things, as part of the defendant’s
community control, that he be screened for placement into the Northwest Community Based
Correctional Facility for up to six months. The trial court further ordered:
Community control to commence upon release from prison.
* * * It is therefore ordered that defendant is sentenced to 1 year(s) of
community control, under the supervision of the Adult Probation Department * *
*.
Id. at ¶ 3.
{¶28} We explained in Heidrick that R.C. 2929.13(A), which states that “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,”
provides a trial court with discretion to impose a prison term for one offense and community
control sanctions for a separate offense. Id., citing State v. Randolph, 12th Dist. Butler No.
CA2003-10-262, 2004-Ohio-3350, ¶ 6-7; State v. Aitkens, 8th Dist. Cuyahoga Nos. 79851 and
79929, 2002-Ohio-1080; and State v. Molina, 8th Dist. Cuyahoga No. 83166, 2004-Ohio-1110, ¶
10.1
{¶29} This court has just reaffirmed (decision released on November 12, 2015) the same
holding — that a trial court has the discretion under R.C. 2929.13(A) to impose a prison term on
one offense and community control sanctions on another offense that will commence upon
completion of the prison term. See State v. Santiago, 8th Dist. Cuyahoga No. 102433,
2015-Ohio-4674 (upheld a sentence that included a prison term for one offense and a “jail term,
CBCF, and community control sanction” to be served consecutively for another offense). See
also State v. Martin, 8th Dist. Cuyahoga No. 100723, 2014-Ohio-3913, and State v. Carswell,
8th Dist. Cuyahoga Nos. 101313 and 101314, 2015-Ohio-764. We noted in Martin and
1
In Molina, the trial court judge sentenced the offender to prison on one offense and ordered
that it be served consecutively to community control sanctions on another offense; the judge was
Judge Burt W. Griffin. Judge Griffin served on the Ohio Criminal Sentencing Commission, which
was responsible for the major sentencing overhaul in S.B. 2. Judge Griffin also co-wrote the “bible”
on Ohio felony sentencing law. Griffin and Katz, Ohio Felony Sentencing Law, Thompson West
2007.
Carswell that although a trial court cannot impose both a prison sentence and community control
sanctions for the same offense, it may do so for separate offenses. Martin at ¶ 8-9; Carswell at
¶ 8.
{¶30} Other districts have also held that a trial court may impose a prison term on one
offense and community control sanctions on another offense and order the community control
sanctions to commence when the offender is released from prison. See State v. Leedy, 4th Dist.
Meigs No. 13CA7 and 13CA8, 2015-Ohio-1718; State v. O’Connor, 5th Dist. Delaware No.
04CAA04-028, 2004-Ohio-6752, State v. Ramsey, 6th Dist. Wood No. WD-04-004,
2004-Ohio-5677; and Randolph, 12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350.
{¶31} The trial court in this case attempted to appropriately punish Anderson for his
conduct in committing the offenses, while at the same time tried to help Anderson become a
more productive and law-abiding citizen after he was released from prison. The court’s goal is
supported by R.C. 2929.11, which sets forth the overriding purposes of felony sentencing.
{¶32} 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.
(Emphasis added.)
{¶33} Anderson was young, only 22 years old at the time of sentencing. The trial court
heard from his probation officer, who informed the court that Anderson had failed several drug
tests, did not comply with his outpatient drug treatment program, or verify that he had attended
GED classes. Anderson’s father spoke to the court, telling the court that he spent many years of
his life with substance abuse issues, and blaming himself for many of Anderson’s problems.
Anderson’s mother also spoke to the court, stating that Anderson had a learning disability and
that she attempted to help Anderson attend his AA meetings, but he could not make the most of
the meetings because he had to work. Anderson stated that being in jail for 197 days was
“eye-opening,” and that he learned he wanted to get his life together and be a more productive
member of society.
{¶34} In imposing Anderson’s sentence, the following took place at the sentencing
hearing:
THE COURT: With regard to * * * the identity fraud offense, Count 8,
that is a felony of the fifth degree. I’m going to run that consecutive to the
robbery and abduction, and I’m going to order you to be on probation for that
charge.
I’m going to have you — when you’re released from prison, you’re going
to come back and be placed in the CBCF facility for a six-month period. CBCF
is a confinement facility next to the post office in downtown Cleveland. It is not
a jail. It is not a prison. It is a bunk bed facility that has about 150 to 200 men
where you will get drug treatment training, you will get GED schooling, you will
get training for Thinking For a Change. In other words, making better decisions
about yourself and you will do that in a confinement setting, but very different
than prison or jail.
You will be allowed to be released from that facility after you do three
months, if you have done everything properly. You will have to return there in
the evening to stay overnight, but you will be back out in the community during
the day to either take care of your business or take care of working or start
working, but you will come back during the evening and stay there until you
complete your stay. It is a maximum of six months. For many people it is three
months to six months.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You need to have some of these issues addressed, and
this is the proper way to do that. If you get that treatment in prison, great, but
you’re going to at least have a program where if it doesn’t happen there, it will
happen at the CBCF. You will be placed on probation for a two-year time
period.
You will also be on post-release control at the same time, so I’m not
adding anything more to that. It will be part of that same sentence. I’m
sentencing you to a total of three years, one with the gun specification and two
with the robbery, because your conduct that night is such that it is very serious.
I know you’ve got issues, and I’m trying to address those issues, but it’s
important to address the conduct, and I’m trying to match the conduct with what I
think is the appropriate sentence and to make it as minimum a sentence that I
could impose that deals with the nature of your conduct.
You have a lot of family support. You’re going to need that family
support. I expect that they will continue to be with you during that time period
and help you through this process.
{¶35} The trial court was clearly attempting to protect the public and punish Anderson
with the three-year prison term, while at the same time attempting to rehabilitate a 22-year-old
offender once he served his prison sentence. For this court to say that the judge cannot do so
seems counterintuitive and against the overriding purposes of felony sentencing under R.C.
2929.11.
{¶36} I would also like to point out that by vacating Anderson’s sentence for the identity
fraud count, the majority is essentially removing the trial court’s sentencing discretion. Upon
remand, the trial court can either sentence Anderson to prison or community control sanctions for
the identify fraud count. If the majority’s interpretation is correct, then any community control
sentence that the trial court imposed would have to be served concurrent to the prison term. But
if Anderson is in prison, he cannot serve the community control sanction. It begs the question:
could the trial court sentence Anderson to five years of community control sanctions on the
identity fraud count, with the first three years having to be served concurrent to the prison term,
with the remaining two years beginning once Anderson was released from prison?
{¶37} Thus, based on well-established law in this district and others, I respectfully
dissent. I would affirm Anderson’s sentence, but remand for the trial court to issue a new
sentencing entry nunc pro tunc to reflect the actual term in the community-based correctional
facility that it imposed at the sentencing hearing.
State v. Anderson
Combined Opinion