State v. Horner

[Cite as State v. Horner, 2016-Ohio-7608.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 103719

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

MARISSA C. HORNER
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-593413-B and CR-15-594917-B

BEFORE: S. Gallagher, J., Boyle, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: November 3, 2016
ATTORNEY FOR APPELLANT

Steve W. Canfil
55 Public Square, Suite 2100
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Melissa Riley
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

{¶1} Appellant Marissa C. Horner appeals the sentence imposed in two

underlying cases, Cuyahoga C.P. Nos. CR-15-593413-B and CR-15-594917-B. Upon

review, we affirm the maximum prison sentence imposed in case No. CR-15-594917-B,

we vacate the imposition of consecutive sentences and the sentence imposed in case No.

CR-15-593413-B, and we remand the matter to the trial court for resentencing in case No.

CR-15-593413-B and modification of the judgment entry in case No. CR-15-594917-B.

{¶2} In case No. CR-15-593413-B, appellant pleaded guilty to trafficking,

amended to a fourth-degree felony, with forfeiture specifications. All remaining counts

were nolled.

{¶3} In case No. CR-15-594917-B, appellant pleaded guilty to compelling

prostitution, a third-degree felony, amended to include the names of the victims. All

remaining counts were nolled.

{¶4} At sentencing, in case No. CR-15-594917-B, the court imposed a maximum

prison sentence of 36 months in prison. In case No. CR-15-593413-B, the court imposed

community control sanctions for three years. As a condition of the community control, if

found eligible, appellant was ordered into the community based correctional facility

program. The court ordered the sentences to be served consecutively, with the

community control sanctions to commence upon the completion of the prison term. The

court also imposed five years of mandatory postrelease control.
 {¶5} Appellant timely filed this appeal. She raises two assignments of error for

our review. Under her first assignment of error, appellant claims the trial court erred in

failing to notify her of the consequences of failing to comply with the requirements of

community control. Under her second assignment of error, appellant claims the trial

court erred in sentencing her to the maximum sentence in case No. CR-15-594917-B and

to consecutive terms of incarceration.

{¶6} First, we address the sentence imposed in case No. CR-15-593413-B.

Appellant claims the court failed to inform her of the prison term she could receive if she

violated her community control sanctions. A review of the record reflects otherwise. At

sentencing, the trial court notified appellant that if she failed to comply with her

community control sanctions, the court could sentence her to a prison term of up to 18

months. Further, insofar as appellant complains the journal entry contains a flawed

reference to “two years community control sanctions,” rather than the three-year sentence

that was actually imposed and as is also reflected in the entry, this error would be subject

to a nunc pro tunc correction. Nonetheless, as discussed below, we must vacate the

sentence.

{¶7} Appellant also claims that the trial court erred in imposing consecutive

sentences, challenging the court’s findings. Because the trial court lacked authority to

impose consecutive sentences, we need not even address its findings.

{¶8} Although a trial court has discretion in imposing a sentence, the sentence

imposed must be within the boundaries of the legislative grant of authority. State v.
Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044, ¶ 1. As an intermediate

appellate court, we are bound to apply the statutory language as written and must adhere

to the clear precedent of the Ohio Supreme Court. Id. In this case, the trial court

imposed a sentence beyond that which it was authorized to impose.

{¶9} Trial courts may only impose sentences that are expressly authorized by

statute, as opposed to sentences that are not prohibited by statute. State v. Anderson, 143

Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 13. Moreover, trial courts are

duty-bound to apply sentencing laws as they are written and have no inherent power to

create sentences. Id. at ¶ 10. As a general rule, pursuant to R.C. 2929.41(A), a sentence

of imprisonment is to be served concurrently with any other sentence of imprisonment,

and only limited delineated exceptions exist. State v. Barnhouse, 102 Ohio St.3d 221,

2004-Ohio-2492, 808 N.E.2d 874, ¶ 11.

{¶10} At issue here is whether a trial court may impose consecutive service of

community control sanctions to a prison term. Recently, in Anderson, 8th Dist.

Cuyahoga No. 102427, 2016-Ohio-7044, the en banc majority of this court answered the

question in the negative. In that decision, the majority held: “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, [a] trial court [is] without authority to impose the same.” Id. at ¶ 31.

{¶11} As discussed in Anderson, “[a] term of residential sanctions cannot be

imposed consecutive to a prison term because as the Ohio Supreme Court recognized,
residential sanctions are sentences of imprisonment.” Id. at ¶ 15, citing Barnhouse at ¶

12. Such sentences must be served concurrently due to the lack of an exception to the

general rule in R.C. 2929.41(A). Anderson, 8th Dist. Cuyahoga No. 102427,

2016-Ohio-7044, at ¶ 12; Barnhouse at ¶ 18. Additionally, due to “the absence of an

express grant of authority to order the imposition of nonresidential sanctions to be served

consecutive to prison terms, those sanctions cannot be so imposed.” Anderson, 8th Dist.

Cuyahoga No. 102427, 2016-Ohio-7044, at ¶ 19. As found in Anderson, “we can only

conclude that the legislature limited the trial court’s authority — to impose community

control sanctions to be served following the offender’s release from a prison term — to

certain felony offenses [delineated under R.C. 2929.15(A)(1)].” Id. at ¶ 30.

{¶12} Because the trial court was without authority to impose community control

sanctions consecutive to a prison sentence, the sentence imposed in case No.

CR-15-593413-B is void and must be vacated.1

{¶13} Next, we address the sentence imposed in case No. CR-15-594917-B.

Appellant challenges the trial court’s imposition of the maximum sentence. A trial court

is not required to make any factual findings before imposing a maximum sentence. State

1
We note that R.C. 2967.29 provides a method for the court of common pleas
to cooperate with the department of rehabilitation and correction in supervising
offenders under parole or postrelease control. “The court, after consultation with
the board of county commissioners, may enter into an agreement with the
department allowing the court and the parole board to make joint decisions relating
to parole and post-release control to the extent permitted by section 2967.28 of the
Revised Code.” R.C. 2967.29(A). If such an agreement were in place, the court
could cooperate in structuring the guidelines of the defendant’s post-prison
monitoring. R.C. 2967.29(B)(6).
v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 14. Therefore, we review

the trial court’s sentence to determine if the sentence is otherwise contrary to law. R.C.

2953.08(G)(2). “A sentence is contrary to law if (1) the sentence falls outside the

statutory range for the particular degree of offense, or (2) the trial court failed to consider

the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

sentencing factors set forth in R.C. 2929.12.” State v. East, 8th Dist. Cuyahoga No.

102442, 2015-Ohio-4375, ¶ 6.

{¶14} Here, the trial court imposed a sentence within the statutory range, and the

journal entry states that “[t]he court considered all required factors of the law.” At

sentencing, the trial court stated it had reviewed the presentence investigation report, the

TASC assessment report, and a letter from appellant. The court indicated it heard the

testimony adduced at the trial of appellant’s codefendant. The court heard from one of

the victims at appellant’s sentencing hearing. Defense counsel presented the court with

mitigating evidence, and appellant personally addressed the court. Accordingly, because

the sentence was within the permissible statutory range and the trial court considered the

required factors of law, appellant’s maximum sentence is not contrary to law.

{¶15} Upon review, we affirm the 36-month maximum sentence imposed in case

No. CR-15-594917-B; we vacate the imposition of consecutive sentences and the

sentence imposed in case No. CR-15-593413-B; and we remand the matter to the trial

court for resentencing in case No. CR-15-593413-B and modification of the judgment

entry in case No. CR-15-594917-B.
 {¶16} Judgment affirmed in part, vacated in part, and remanded to the lower court

for resentencing consistent with this opinion.

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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for resentencing.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
MARY J. BOYLE, P.J., DISSENTS WITH SEPARATE OPINION

MARY J. BOYLE, P.J., DISSENTING:

{¶17} I respectfully dissent. I disagree with the majority that the “trial court

imposed a sentence beyond that which it was authorized to impose.” It is my view that

this case is distinguishable from our recent en banc decision, State v. Anderson, 8th Dist.

Cuyahoga No. 102427, 2016-Ohio-7044. In Anderson, the majority en banc decision

held that a trial court could not sentence an offender to prison for one felony offense and

community control sanctions for a separate felony offense — in the same case — and
order the community control sanctions to commence once the offender is released from

prison. See id. But in this case, unlike in the facts in Anderson, the trial court imposed

a 36-month prison sentence for a felony offense in one case and three years of community

control sanctions for a felony offense in a separate case. As I cautioned in my dissent in

Anderson, the majority is already attempting to extend Anderson beyond its holding. See

id. at ¶ 50 (Boyle, J., dissenting).

{¶18} As I emphasized in my dissent in Anderson, it is my view that State v.

Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, and State v.

Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, do not apply to the facts

in our en banc Anderson decision, nor do they apply to the facts in the present case. In

Barnhouse, the Ohio Supreme Court explicitly addressed only one question, stating at the

outset of its opinion: “[t]he issue presented in this case is whether a trial court may

impose consecutive jail sentences under R.C. 2929.16(A)(2).” Id. at ¶ 1. The Supreme

Court answered that question “in the negative,” thus preventing trial courts from

imposing “consecutive jail sentences.” Id. at the syllabus.

{¶19} Likewise, the Ohio Supreme Court’s Anderson decision only addressed the

question: “If a defendant is sentenced to prison for a term of incarceration, does the trial

court have authority to issue against the defendant, a ‘no contact’ order with the victim?”

Id. at ¶ 1. The court answered that question “in the negative” as well, holding that “[a]

trial court cannot impose a prison term and a no-contact order for the same felony
offense.” (Emphasis added.) Id. As I previously stated, the majority applies the dicta

in the Supreme Court’s Anderson case too broadly. See Anderson at ¶ 46.

{¶20} The facts in the present case are directly analogous to the facts in State v.

Molina, 8th Dist. Cuyahoga No. 83166, 2004-Ohio-1110, where this court upheld the trial

court’s imposition of a prison term for a felony offense in one case and community

control sanctions for a felony offense in a separate case, which were to commence upon

the defendant’s release from prison from his sentence in the first case.2 See id.

{¶21} The majority now wants to remove a sentencing judge’s discretion when

sentencing a defendant for felony convictions in two separate cases. Again, as I stated in

my dissent in our en banc majority decision, the majority’s interpretation of Barnhouse

and the Supreme Court’s Anderson makes no sense in light of R.C. 2929.11, where the

General Assembly mandated that trial courts use “the minimum sanctions” necessary to

accomplish the purposes and principles of felony sentencing. See Anderson, 8th Dist.

Cuyahoga No. 102427, 2016-Ohio-7044, ¶ 48 (Boyle, J., dissenting). Indeed, the

majority would have upheld Horner’s sentence had the trial court imposed 36 months in

prison for the third-degree felony in the first case (as it did) and six to eighteen months in

prison for the fourth-degree felony in the second case (the range for fourth-degree

felonies), and ordered them to be served consecutively, for an aggregate sentence of a

2
The trial court judge in Molina 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. See Griffin and
Katz, Ohio Felony Sentencing Law (Thompson West 2007).
possible 54 months in prison — rather than 36 months in prison and three years of

community control sanctions. Again, I stress that the majority’s interpretation of

Barnhouse and Anderson is counterintuitive and against the overriding principles and

purposes of Ohio’s felony sentencing laws.

{¶22} Thus, it is my view that the trial court in this case was fully within its power

to order defendant-appellant, Marissa Horner, to begin serving her sentence in the second

case once she served her prison sentence in the first case, i.e., the trial court could order

Horner to begin serving her community control sanctions for the second case once she

was released from prison in the first case.

{¶23} I would therefore affirm the trial court’s sentence in its entirety: 36-months

in prison for Cuyahoga C.P. No. CR-15-594917-B, and three years of community control

sanctions for Cuyahoga C.P. No. 15-593413-B, to commence upon Horner’s release from

prison in Cuyahoga C.P. No. 15-594917-B.