[Cite as State v. Thompson, 2022-Ohio-1073.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 110785
v. :
BEVERLY THOMPSON, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 31, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-656089-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank R. Zeleznikar and Tasha L.
Forchione, Assistant Prosecuting Attorneys, for
appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert McCaleb, Assistant Public Defender, for appellee.
MICHELLE J. SHEEHAN, J.:
The state of Ohio appeals the sentence the trial court imposed upon
appellee Beverly Thompson of “time served” as being contrary to law. Because the
sentence the trial court imposed was not a community control sanction, the sentence
is contrary to law, and we reverse the judgment of the trial court and remand the
case for resentencing.
I. FACTS AND PROCEDURAL HISTORY
On February 3, 2021, Thompson was indicted on one count of
felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree.
On August 17, 2021, the trial court accepted Thompson’s guilty plea to one count of
aggravated assault in violation of R.C. 2903.12(A)(1), a felony of the fourth degree.
After accepting the plea, by agreement of the parties, the trial court proceeded
immediately to a sentencing hearing. The state provided an outline of the facts
underlying Thompson’s conviction and told the court that the victim would not
appear, but the victim did not want Thompson “to go to jail.” Thompson’s attorney
told the trial court that Thompson did not have a recent criminal record, did not
have a problem with drug use, and asked the court to impose community control
sanctions.
The trial court noted that Thompson had a criminal case in 1979 and
pronounced sentence as follows:
Because of your minimal history with the Court and the
representation that you do not need drug rehabilitation services, I’m
going to sentence you to time served. Thank you.
The journal entry of conviction provides the following regarding the
sentence:
The court considered all required factors of the law.
Defendant sentenced to time served.
Defendant to receive jail time credit for 1 day(s), to date.
The court hereby enters judgment against the defendant in an amount
equal to the costs of this prosecution.
II. LAW AND ARGUMENT
A. Assignment of Error
The state filed this appeal and asserts in its sole assignment of error
that the sentence imposed of “time served” for a felony of the fourth degree is
unauthorized by statute and is thereby contrary to law and should be reversed.
Thompson argues that the trial court imposed both a residential community control
sanction and a financial community control sanction and, as such, the sentence was
authorized by law and should be affirmed.
B. Standard of review and applicable law
1. Standard of review of felony sentences
We review felony sentences under the standard of review set forth in
R.C. 2953.08(G)(2). State v. Cedeno-Guerrero, 8th Dist. Cuyahoga No. 108097,
2019-Ohio-4580, ¶ 17, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
59 N.E.3d 1231, ¶ 22. Pursuant to R.C. 2953.08(G)(2), an appellate court may
increase, reduce, or otherwise modify a sentence, or vacate a sentence and remand
for resentencing if it “clearly and convincingly finds” that the “sentence is otherwise
contrary to law.”
A sentence not authorized by statute is contrary to law. E.g., State v.
Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 15 (“Our conclusion
reflects the well-established principle that a court acts contrary to law if it fails to
impose a statutorily required term as part of an offender’s sentence.”).
2. Applicable sentencing statutes for Thompson’s offense
Thompson was convicted of a felony offense and the trial court was
required to impose either 1) a prison sentence or 2) community control sanctions.
State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 23. The
trial court did not impose a prison sentence; therefore, it was required to impose
community control sanctions. A community control sanction is defined in
R.C. 2929.01(E), as “a sanction that is not a prison term and that is described in
section 2929.15, 2929.16, 2929.17, or 2929.18 of the Revised Code * * *.”
R.C. 2929.16(A) provides the authority for a sentencing court to
impose “a community residential sanction.” R.C. 2929.16(A) reads in relevant part:
(A) Except as provided in this division, the court imposing a sentence
for a felony upon an offender who is not required to serve a mandatory
prison term may impose any community residential sanction or
combination of community residential sanctions under this section.
* * * Community residential sanctions include, but are not limited to,
the following:
(1) Except as otherwise provided in division (A)(6) of this section, a
term of up to six months at a community-based correctional facility
that serves the county;
(2) Except as otherwise provided in division (A)(3) or (6) of this
section and subject to division (D) of this section, a term of up to six
months in a jail;
(3) If the offender is convicted of a fourth degree felony OVI offense
and is sentenced under division (G)(1) of section 2929.13 of the
Revised Code, subject to division (D) of this section, a term of up to
one year in a jail less the mandatory term of local incarceration of sixty
or one hundred twenty consecutive days of imprisonment imposed
pursuant to that division;
(4) A term in a halfway house;
(5) A term in an alternative residential facility;
(6) If the offender is sentenced to a community control sanction and
violates the conditions of the sanction, a new term of up to six months
in a community-based correctional facility that serves the county, in a
halfway house, or in a jail, which term shall be in addition to any other
term imposed under this division.
Financial sanctions that may be imposed as community control
sanctions are described in R.C. 2929.18(A), which reads in pertinent part:
Except as otherwise provided in this division and in addition to
imposing court costs pursuant to section 2947.23 of the Revised Code,
the court imposing a sentence upon an offender for a felony may
sentence the offender to any financial sanction or combination of
financial sanctions authorized under this section or, in the
circumstances specified in section 2929.32 of the Revised Code, may
impose upon the offender a fine in accordance with that section.
C. The sentence of “time served” and the imposition of costs
pursuant to R.C. 2947.23 are not community control sanctions
1. “Time served” is not a community control sanction
The trial court sentenced Thompson to “time served” and gave her
credit for one day served in jail. We recognize that the phrase “time served” in
criminal cases is generally understood as being the length of time a criminal
defendant has been detained prior to sentencing for the purposes of calculating
under R.C. 2967.191 any reduction in an imposed prison sentence. However, a trial
court may only impose a sentence for a criminal offense that is authorized by law.
Anderson at ¶ 23.
In State v. Pooler, 2d Dist. Montgomery No. 28661, 2021-Ohio-1432,
the state asserted that a sentence of “time served” for the crime of improper handling
of a firearm in a motor vehicle, a fourth-degree felony offense, was contrary to law.
The defendant conceded that the sentence was contrary to law, noting the sentence
of time served “was not described” in R.C. 2929.15 through 2929.18. Id. at ¶ 12. The
court of appeals found the sentence “did not reference community control or inform
Pooler of the penalties for a community control violation.” Id. at ¶ 13. The court of
appeals also noted that by imposing “time served” the trial “court constructively
imposed a single community control sanction of a jail sentence equal to the amount
of time the defendant had already served.” Id.
In this case, although we could infer from the record that the trial court
meant to impose a community control sanction described in R.C. 2929.16(A) of a
jail term, it did not do so. Instead, it sentenced Thompson to “time served.” The
sentence of “time served” imposed in court, not being a community control sanction
described in R.C. 2929.15 through 2929.19, is contrary to law. Pooler at ¶ 13.
2. The imposition of costs in a criminal case pursuant to
R.C. 2947.23 are not financial community control sanctions
A trial court, when sentencing an offender for a felony offense, shall
consider imposing a financial sanction as the sole community control sanction.
R.C. 2929.13(A). Thompson argues that the trial court did impose a financial
sanction under R.C. 2929.18 when it sentenced her by entering judgment “in an
amount equal to the costs of this prosecution.” We are not persuaded by this
argument. R.C. 2929.18(A) provides that “in addition to imposing court costs
pursuant to section 2947.23 * * * the court imposing a sentence * * * may sentence
the offender to any financial sanction or combination of financial sanctions
authorized under this section.” (Emphasis added.) The language of the statute
separates costs to be imposed pursuant to R.C. 2947.23 from financial sanctions that
would be considered community control sanctions. The trial court did not impose a
fine or other financial sanction described in R.C. 2929.18; it ordered Thompson to
pay the costs of prosecution. As such, the trial court did not impose a community
control sanction under R.C. 2929.18.
3. The sentence imposed by the trial court is reversed and the
case is remanded to the trial court for resentencing
Having found that trial court imposed a sentence that is contrary to
law, we must determine the remedy. The state asks us to remand this case to the
trial court for a resentencing hearing. Where a trial court imposes a sentence that is
found to be contrary to law, the remedy is to reverse the sentence and remand the
matter for resentencing. E.g., State v. Mathis, 109 Ohio St.3d 54, 62, 2006-Ohio-
855, 846 N.E.2d 1 (“It thus appears that any case that is remanded for ‘resentencing’
anticipates a sentencing hearing de novo, yet the parties may stipulate to the existing
record and waive the taking of additional evidence.”).
Thompson argues that if we determine her sentence to be contrary to
law, then this court should recognize that the trial court intended to sentence her to
an authorized community control sanction, one day in jail, and modify the sentence
as the court did in Pooler, supra.
In Pooler, the court of appeals found “no benefit to remanding the
case” and exercised its authority under R.C. 2953.08(G)(2) to modify the sentence.
Id., 2d Dist. Montgomery No. 28661, 2021-Ohio-1432, at ¶ 13, 15. But in Pooler, the
offender committed the crime of improper handling of a firearm in a motor vehicle,
a crime without a specified victim. In this case, Thompson was convicted of
aggravated assault, a crime for which there was a victim. Under Ohio law, a victim
of crime has certain rights, to include notice of and an opportunity to be heard in
any sentencing proceeding. Ohio Constitution, Article I, Section 10a(A)(2) – (3); see
R.C. 2930.01 et seq. Accordingly, we decline to modify the sentence imposed in this
case. The state’s assignment of error is sustained, and we remand this matter to the
trial court for resentencing.
III. CONCLUSION
Thompson committed a felony offense, and the trial court was
required to either impose a prison term or community control sanctions. The trial
court did not impose a prison term and imposed a sentence of “time served” and
ordered Thompson to pay the costs of prosecution. Because the sentence of “time
served” is not a community control sanction authorized by R.C. 2929.15 through
2929.19 and because the imposition of costs is not a financial sanction recognized
as a community control sanction, the trial court imposed a sentence that is contrary
to law. The sentence is reversed, and the case is remanded to the trial court for
resentencing.
This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellee and appellant split 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.
____________________________
MICHELLE J. SHEEHAN, JUDGE
LISA B. FORBES, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS (WITH SEPARATE OPINION
ATTACHED)
SEAN C. GALLAGHER, A.J., CONCURRING:
Although I fully concur with the majority’s opinion, I write separately
to clarify this area of the law. In this case, the trial court imposed a sentence of one
day in jail, with a jail-time credit of one day, referred to as a sentence of “time
served.” It must be made clear that the majority’s decision is not one merely
elevating form over substance. The imposition of this type of sentence as the sole
community control sanction is invalid. At least one community control sanction
must be imposed upon the offender under the plain language of R.C. 2929.15(A)(1):
“the court may directly impose a sentence that consists of one or more community
control sanctions authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code.” (Emphasis added.) Id.
In State v. Nash, 2012-Ohio-3246, 973 N.E.2d 353, ¶ 12 (8th Dist.),
and again in State v. Amos, 8th Dist. Cuyahoga No. 97719, 2012-Ohio-3954, ¶ 10,
rev’d on other grounds, State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, 17
N.E.3d 528, ¶ 16, the “time served” sentences were deemed valid, but only when
accompanied with the imposition of a nominal fine under R.C. 2929.18. Although
both cases are of limited authority, the opinions are instructive. Under R.C.
2929.13(A), “[i]f the offender is eligible to be sentenced to community control
sanctions, the court shall consider the appropriateness of imposing a financial
sanction pursuant to section 2929.18 of the Revised Code or a sanction of
community service pursuant to section 2929.17 of the Revised Code as the sole
sanction for the offense.” (Emphasis added.) Id. Thus, the legislature has provided
a mechanism to impose a de minimis sanction upon deserving offenders to limit the
cost to the public.
The error in this case is not necessarily with the imposition of an
illusory jail term that is subsumed by the jail-time credit, but in the failure to
consider and impose the nominal fine or community service as the sole community
control sanction. Amos at ¶ 10. As noted in the majority, trial courts lack authority
to craft their own sentences. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-
2089, 35 N.E.3d 512, ¶ 12. It is not enough that a particular sentence is not
precluded under the Revised Code, but that the legislature has affirmatively
authorized the sentence. State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229, ¶ 6-7
(8th Dist.). Under the unambiguous language of R.C. 2929.13(A), the trial court is
required to consider two options when considering the imposition of a single
community control sanction, but a jail term subsumed by the jail-time credit is not
one of those options. Accordingly, I fully concur with the majority.