State v. Ervin
| Decision Date | 24 April 2017 |
| Docket Number | NO. CA2016–04–079,CA2016–04–079 |
| Citation | 2017 Ohio 1491,89 N.E.3d 1 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Jody ERVIN, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018, for defendant-appellant
{¶ 1} Defendant-appellant, Jody Ervin, appeals the decision of the Butler County Court of Common Pleas revoking her community control and imposing a prison term. For the reasons detailed below, we reverse the decision of the trial court and remand for further proceedings.
{¶ 2} In 2010, Ervin pled guilty to two counts of complicity to felonious assault in violation of R.C 2923.03(A)(2) and R.C. 2903.11(A)(2), both second-degree felonies. One of those counts included a specification that a firearm was used during the commission of the offense. The trial court imposed a mandatory prison term of three years pursuant to R.C. 2929.14(D)(1)(a) for the gun specification. The trial court also imposed five years of community control on both counts of complicity to felonious assault. The community control sanctions were ordered to be served consecutive to and following the five-year prison term. Ervin did not file a direct appeal.
{¶ 3} In December 2012, Ervin was released from prison and began to serve her five-year community control sentence. Ervin was found in violation of her community control in 2015 for issues including the possession of drugs. Nevertheless, the trial court continued community control.1 In 2016, Ervin once again violated the terms of her community control for heroin use. In its entry dated March 24, 2016, the trial court found that Ervin was no longer amenable to community control and imposed 36 months in prison on each count of Ervin's underlying complicity convictions and ordered those terms be served consecutively for an aggregate 72–month prison term.
{¶ 4} Ervin appealed the trial court's decision, raising two assignments of error for review. However, this court issued an entry directing the parties to brief the following issues:
Does Ohio law authorize a sentencing court to impose community control on one felony count to commence upon completion of a prison term imposed on another felony count? If not, does that render the community control sentence void or voidable?
Therefore, there are three assignments of error for consideration.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY IMPOSING A PRISON SENTENCE.
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY IMPOSING CONSECUTIVE PRISON SENTENCES.
{¶ 9} Assignment of Error No. 3:
{¶ 10} THE TRIAL COURT ERRED BY IMPOSING A BLENDED SENTENCE OF COMMUNITY CONTROL AND PRISON SANCTIONS.
{¶ 11} As resolution of Ervin's third assignment of error is dispositive of this matter, we will address it first. In her third assignment of error, Ervin alleges the trial court erred by imposing a "blended sentence," wherein the trial court imposed both a prison term on one offense, but imposed a consecutive term of community control on another.
{¶ 12} We begin by noting that R.C. 2929.13 states:
Except as provided in division (E), (F), or (G) of this section and unless a specific sanction is required to be imposed or is precluded from being imposed pursuant to law, 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.
Accordingly, a trial court has broad discretion in imposing a sentence, so long as a specific sanction is not required or precluded and provided that the sanction or combination of sanctions are provided in R.C. 2929.14 to R.C. 2929.18.
{¶ 13} In prior cases, a number of Ohio appellate courts, including this court, have found that a trial court may order a sentence of community control to be served consecutively to a prison term. State v. Leedy , 4th Dist. Meigs Nos. 13CA7 and 13CA8, 2015-Ohio-1718, 2015 WL 2091845, ¶ 8 ; State v. Kinder , 5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340, 2004 WL 1846105, ¶ 31 ; State v. Randolph , 12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350, 2004 WL 1433654, ¶ 6–7 ; State v. Ramsey , 6th Dist. Wood No. WD-04-004, 2004-Ohio-5677, 2004 WL 2390029, at ¶ 4. The rationale behind many of these cases was that "nothing in R.C. Chapter 2929 * * * prohibits trial courts from ordering a period of community control to be served consecutively to a prison sentence." Leedy at ¶ 9.
{¶ 14} Recently, however, the Eighth District Court of Appeals, sitting en banc, reconsidered a trial court's sentencing authority in light of several recent Ohio Supreme Court decisions on this issue. State v. Anderson , 2016-Ohio-7044, 62 N.E.3d 229. The Eighth District determined that a trial court lacks authority to impose such "blended sentences" 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, the trial court was without authority to impose the same." Id . at ¶ 31.
{¶ 15} The decision essentially flips the reasoning that appellate courts have relied upon in upholding blended sentencing decisions and is based upon the Ohio Supreme Court's decision in a similarly titled case State v. Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512. While prior cases resolved such issues on the basis that the legislature had not specifically precluded the sentence, the Ohio Supreme Court's decision in Anderson made clear that such reasoning is in error. Instead, sentencing decisions must be based on a specific grant of legislative authority.
{¶ 16} The Supreme Court's reasoning is detailed below:
Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512 at ¶ 10–13.
{¶ 17} Recognizing the Ohio Supreme Court's interpretation of sentencing authority, the Eighth District noted "[a]ppellate 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." Anderson , 2016-Ohio-7044, 62 N.E.3d 229 at ¶ 7. Following the Ohio Supreme Court's decision in State v. Anderson , the rationale for those decisions was undermined. Id. As a result, the relevant inquiry is whether the trial court is expressly authorized by statute to impose the sentence, as opposed to whether the sentence is expressly prohibited by statute.
{¶ 18} Turning specifically to the issues in the present case, Ervin is presently incarcerated because she violated community control sanctions on two convictions for complicity to felonious assault. Those community control sanctions were ordered consecutive to a prison term based on a gun specification.2 The issue before the court is whether the legislature authorized the trial court to impose those community control sanctions consecutive to the prison term.
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