State v. Anderson

• Decision Date: 29 September 2016
• Docket Number: No. 102427.,102427.
• Citation: 62 N.E.3d 229
• Parties: STATE of Ohio, Plaintiff–Appellee v. Marlo A. ANDERSON, Defendant–Appellant.
• Court: Ohio Court of Appeals

62 N.E.3d 229

STATE of Ohio, Plaintiff–Appellee

v.Marlo A. ANDERSON, Defendant–Appellant.

No. 102427.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Sept. 29, 2016.

Thomas A. Rein, Cleveland, OH, for Appellant.

Timothy J. McGinty, Cuyahoga County Prosecutor by John Patrick Colan, Anthony Thomas Miranda, Frank Romeo Zeleznikar, Assistant Prosecuting Attorneys, Cleveland, OH, for Appellee.

Before: The En Banc Court.

SEAN C. GALLAGHER, J.

{¶ 1} There is arguably nothing more unassailable than the trial court's discretion to fashion final sentences. Any legislative or legal decision seen as limiting that discretion will arouse passionate debate.¹ Nevertheless, as an intermediate appellate court, we must constrain ourselves to the questions of law, and apply not only the statutory language as written but also the clear precedent of the Ohio Supreme Court. In this case, the trial court imposed a sentence beyond that which it was authorized to impose, and therefore, we must reverse. We are not so much limiting a trial court's sentencing authority as we are recognizing the boundaries of the legislative grant of discretion.

{¶ 2} The trial judge wanted to maintain personal supervision over Marlo Anderson after his release from prison for the apparent and noble purpose of ensuring Anderson would stay on a path to rehabilitation. This resulted in the dual imposition of postprison supervision by two separate entities and will result in the unnecessary fiscal burden imposed on two state agencies charged with the same task. This goal of allowing the court to set the appropriate sanctions and conditions on offenders leaving prison could have been accomplished in an authorized manner through the procedures outlined under R.C. 2967.29, which provides a method for the court of common pleas to cooperate with the Department of Rehabilitation and Correction in supervising offenders. R.C. 2967.29(B)(4). The court, after consultation with the board of county commissioners, could enter into an agreement with the department of corrections allowing the court and the parole board to make joint decisions relating to parole and postrelease control to the extent permitted by section 2967.28 of the Revised Code. If such an agreement was in place in Cuyahoga County, there would have been no need for the dual imposition of postprison monitoring because the trial court could cooperate in structuring the guidelines of the defendant's postprison monitoring. R.C. 2967.29(B)(6).

{¶ 3} Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court determined that a conflict existed between the original panel majority decision in State v. Anderson, 2015-Ohio-5136, 54 N.E.3d 610, and State v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012 WL 1379839, ¶ 8. Although our original panel decision in Anderson, 2015-Ohio-5136, 54 N.E.3d 610, was not the first to question prior decisions allowing the imposition of consecutive community control sanctions, it is nonetheless the vehicle chosen to resolve our intradistrict differences. State v. Abernathy, 8th Dist. Cuyahoga No. 102716, 2015-Ohio-4769, 2015 WL 7300488, ¶ 8–10 (trial court is not authorized to impose consecutive community control jail terms); see also State v. Dansby–East, 2016-Ohio-202, 57 N.E.3d 450, ¶ 21 ; State v. Peterson, 8th Dist. Cuyahoga No. 102428, 2015-Ohio-4581, 2015 WL 6789900, ¶ 13 (recognizing that the Ohio Supreme Court's decision in Barnhouse only applies to preclude the consecutive imposition of community control sanctions). In light of the conflict, we agreed to hear the matter en banc to clarify this district's black-letter law.²

{¶ 4} Before issuing the original panel decision, in light of newer developments in the law impacting the issues as framed by Anderson, this court requested the parties to brief whether

R.C. 2929.13(A) or 2929.41(A) or any other statutory provision allow 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

The supplemental briefing was sought in accordance with State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, and because this court recognizes that sentences not authorized by law are void. State v. T.M., 8th Dist. Cuyahoga No. 101194, 2014-Ohio-5688, 2014 WL 7339187, ¶ 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, 2009 WL 1581142, ¶ 2 ; State v. Keslar, 4th Dist. Hocking No. 98CA20, 1999 WL 1073961, *6 (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). Both parties responded.

{¶ 5} The issue posed here is whether a trial court may impose a term of residential or nonresidential community control sanctions on one felony count, to be served consecutively to a term of imprisonment imposed on another. We must answer that question in the negative. The legislature has not authorized a trial court to impose community control sanctions to be served consecutively to sanctions imposed on separate counts, except in limited but expressly delineated circumstances that are inapplicable to Anderson's sentence. The original panel in our Anderson appeal followed Abernathy in light of State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512,³ and, after reviewing Anderson's assigned errors, the panel acknowledged the overlooked decision in Barnhouse.

{¶ 6} In State v. Anderson, the Supreme Court of Ohio did not directly deal with the consecutive imposition of a community control sanction and a prison term. Nevertheless, State v. Anderson reaffirmed an apparently forgotten limitation to a trial court's authority in sentencing. In State v. Anderson, the Ohio Supreme Court unambiguously held that “ ‘the only sentence which a trial judge may impose is that provided for by statute * * *.’ ” Id. at ¶ 12, citing State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984), quoting Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964) ; see also State v. Morris, 55 Ohio St.2d 101, 112, 378 N.E.2d 708 (1978), citing Toledo Mun. Court v. State ex rel. Platter, 126 Ohio St. 103, 184 N.E. 1 (1933) (“It has long been recognized in this state that the General Assembly has the plenary power to prescribe crimes and fix penalties.”); see also Wilson v. State, 5 N.E.3d 759, 762 (Ind.2014), quoting Wilson v. State, 988 N.E.2d 1221, 1224 (Ind.App.2013) (Robb, C.J., dissenting) (“sentencing is a creature of the legislature”; “courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute.” (Emphasis sic.)).

{¶ 7} Appellate courts had all too often flipped that proposition of law on its head and affirmed sentences under the rationale that the legislature had not specifically precluded the imposed sentence, including the panel's decision in Heidrick. See, e.g., State v. Anderson, 9th Dist. Summit No. 26640, 2014-Ohio-1206, 2014 WL 1344584, ¶ 34 ; Heidrick, 8th Dist. Cuyahoga No. 96822, 2012 WL 1379839, at ¶ 12 (noting that nothing in the statute precludes the imposition of the appealed sentence, and therefore, the conviction was affirmed); see also State v. Ramsey, 6th Dist. Wood No. WD–04–004, 2004-Ohio-5677, 2004 WL 2390029, ¶ 4 ; State v. Meredith, 4th Dist. Athens No. 02CA5, 2002-Ohio-4508, 2002 WL 2005771, ¶ 13. Therefore, the State v. Anderson decision undermined the rationale supporting our decision in Heidrick . Accordingly, the time was ripe to question the Heidrick outcome.

{¶ 8} With that background and analytical framework in mind, we can now turn to the merits of the case, in which 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 the identity fraud count, a felony of the fifth degree, 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).

{¶ 9} Anderson was charged in pertinent part with three felonies, 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.

{¶ 10} Anderson filed the current appeal after pleading guilty and being sentenced. Anderson first 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. We can summarily dispose of his first argument. 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

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