[Cite as State v. Bennett, 2016-Ohio-7220.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 102843 and 102844
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TRACY W. BENNETT
DEFENDANT-APPELLANT
JUDGMENT:
VACATED; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-14-589644-A and CR-14-586569-A
BEFORE: E.A. Gallagher, P.J., McCormack, J. and Stewart, J.
RELEASED AND JOURNALIZED: October 6, 2016
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Marcus A. Henry
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Tracy Bennett, has appealed his convictions in both
Cuyahoga C.P. No. CR-14-589644-A in which he plead guilty to felonious assault and
Cuyahoga C.P. No. CR-14-589569-A in which he plead guilty to attempted domestic
violence. Bennett was sentenced to a two year prison term in CR-14-589569 and three
years of community control sanctions with placement at the Community Based
Correctional Facility (“CBCF”) in CR-14-589644, which were ordered to be served
consecutively.
{¶2} Appellant raised two assignments of error. First, he challenges the
consecutive terms of his sentences asserting that the trial court failed to make the
statutorily required findings prior to imposing consecutive sentences and he also
challenges the indefinite period of confinement at a CBCF as being contrary to law.
{¶3} Appellee, state of Ohio, concedes that the trial court failed to make the
statutorily required findings pursuant to R.C. 2929.14(C)(4) and further concedes that,
pursuant to this court’s decision in State v. Moore, 8th Dist. Cuyahoga No. 102242,
2015-Ohio-3233 and R.C. 2929.16(A)(1), the trial court erred in failing to impose a
limited term for the appellant’s placement at a CBCF.
{¶4} Despite the state’s concession to the above errors, a larger facial error in
Bennett’s sentence takes precedence and renders his sentence void. In an en banc
decision, this court recently held that a trial court may not impose terms of residential or
nonresidential community control sanctions on a felony count to be served consecutively
to a term of imprisonment imposed on another count, State v. Anderson, 8th Dist.
Cuyahoga No. 102427, 2016-Ohio-7044, ¶ 5. Pursuant to Anderson, a sentence of
community control sanctions improperly ordered to be served consecutive to a prison
term is void and must be vacated. Id. at ¶ 31.
{¶5} Therefore, we vacate Bennett’s community control sanction sentence in Case
No. CR-14-589569-A as void.
{¶6} Case remanded for resentencing on that case alone.
{¶7} This cause is vacated and remanded to the lower court for further proceedings
consistent with this opinion.
It is ordered that appellant recover of said appellee the 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.
______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR
State v. Bennett
Combined Opinion