State v. Anderson

2015 Ohio 5136

Opinion

[Cite as State v. Anderson, 2015-Ohio-5136.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102427

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

MARLO A. ANDERSON

DEFENDANT-APPELLANT

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

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585997-A

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

RELEASED AND JOURNALIZED: December 10, 2015 ATTORNEY FOR APPELLANT

Thomas A. Rein 700 W. St. Clair Suite 212 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: John Patrick Colan Assistant Prosecuting Attorney Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, J.:

{¶1} 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 an identity fraud count, 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). Anderson also was sentenced to one year for

abduction, to be served concurrently with the three-year term stemming from the robbery count

that is not an issue in the current appeal. Although Anderson pleaded guilty to aggravated theft,

that count merged with the identity theft count and, therefore, is not part of Anderson’s

conviction.

{¶2} Anderson was charged with 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.

{¶3} Anderson filed the current appeal after pleading guilty and being sentenced.

Anderson 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.

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 significance —

in other words, each offense caused separate, identifiable harm [or was committed

against separate victims], (2) [if] the offenses were committed separately, [or] (3)

[if] the offenses were committed with separate animus or motivation.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. The merger analysis

was stated in the disjunctive: any one of the factors warrants separate punishment. In this case,

the trial court determined that the offenses were committed separately. The trial court was not

required to determine Anderson’s animus and did not err by avoiding any discussion of

Anderson’s “state of mind.” Anderson’s argument is overruled.

{¶4} Anderson also challenges the imposition of a two-year term of community control to

be served consecutively to his three-year term of imprisonment — specifically imposed by the

trial court pursuant to R.C. 2929.14(C)(4). It should be noted that Anderson also has a

mandatory three-year term of postrelease control. It is not entirely clear why the two-year term

of community control was imposed if Anderson was already subjected to a mandatory period of

monitoring following his release. At best, it seems fiscally duplicative to have two different

agencies monitoring Anderson upon his release.

{¶5} Nevertheless, we agree with Anderson’s claim that the trial court was without

authority to impose community control sanctions to be served consecutively to the prison term.

As a result, the community control sentence on the identity fraud count is void as a matter of law. {¶6} After oral argument, additional briefing was requested from the parties to address

the issue of whether R.C. 2929.13(A) or 2929.41(A) or any other statutory provision allows 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.

{¶7} The state filed a supplemental brief advancing the same arguments already briefed

and further claimed this court lacked authority to sua sponte question the validity of a sentence.

The state’s claim is without merit for two reasons.

{¶8} First, sentences not authorized by law are void, and the issue may be addressed sua

sponte by an appellate court. State v. T.M., 8th Dist. Cuyahoga No. 101194, 2014-Ohio-5688, ¶

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, ¶ 2; State v. Keslar,

4th Dist. Hocking No. 98CA20, 1999 Ohio App. LEXIS 5570, *17 (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).

{¶9} Second, and more importantly, although our decision to seek additional briefing was

initiated sua sponte, the supplemental briefing provided both parties the opportunity to brief the

issue first identified, but not fully developed, in Anderson’s brief. As the Ohio Supreme Court

has noted, appellate courts may decide cases on the basis of new, unbriefed issues if the parties

are afforded notice and an opportunity to be heard. State v. Tate, 140 Ohio St.3d 442,

2014-Ohio-3667, 19 N.E.3d 888, ¶ 21. The purpose of the supplemental briefing was to afford

the parties an opportunity to be heard on the dispositive issue. {¶10} As the state notes, courts have routinely held that community control sanctions on

one count can be imposed consecutively to a prison term on another. See, e.g., State v. Kinder,

5th Dist. Delaware No. 03CAA12075, 2004-Ohio-4340; State v. Blunk, 8th Dist. Cuyahoga No.

84304, 2004-Ohio-6910; State v. Purvis, 8th Dist. Cuyahoga No. 101608, 2015-Ohio-1149; State

v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8. None of the cases, however,

addressed a trial court’s authority to impose such sanctions; most simply presume the authority

exists. Any prior precedent in this district purportedly authorizing trial courts to impose

community control sanctions to be served consecutively is invalid. Barnhouse at ¶ 12.

{¶11} For example, although the panel concluded in Purvis that consecutive residential

sanctions pursuant to R.C. 2929.16 can be imposed on multiple felonies, the panel relied on State

v. Barnhouse, 4th Dist. Athens No. 02CA22, 2002-Ohio-7082, a case subsequently overturned by

the Ohio Supreme Court. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, at

¶ 12.

{¶12} In Barnhouse, the Ohio Supreme Court held that trial courts lack authority to

impose consecutive jail sentences imposed pursuant to R.C. 2929.16(A)(2), because R.C.

2929.41 mandates that sentences of imprisonment that include a felony jail sentence must be

served concurrently to any other term. More importantly, the Ohio Supreme Court concluded

that although the language of R.C. 2929.16(A), authorizing the imposition of a combination of

sanctions for a “felony offense,” in the singular, may indicate “that multiple [sentences] may be

imposed where the criminal has been found guilty of multiple felony offenses[,]” such an

interpretation is irrelevant to whether the sentences must be served consecutively or concurrently.

Id. R.C. 2929.41(A) provides no exception to the statutory requirement that trial courts impose

the community control sanctions to be served concurrently. The panel’s decision in Purvis, therefore, contravened binding precedent, and we cannot rely on that decision. R.C. 2929.16

does not authorize consecutive service of jail terms on multiple felony offenses. We are bound

by the Ohio Supreme Court’s decision in Barnhouse. See State v. Abernathy, 8th Dist.

Cuyahoga No. 102716, 2015-Ohio-4769, ¶ 9-10.

{¶13} The state also argues that consecutive service of community control sanctions is

statutorily authorized based on R.C. 2929.15(A)(1), which provides the following:

[I]n addition to the mandatory prison term or mandatory prison term and additional prison term imposed under that division, the court also may impose upon the offender a community control sanction or combination of community control sanctions under section 2929.16 or 2929.17 of the Revised Code, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction.

Although another panel in this district agreed with the state’s argument and cited R.C.

2929.15(A)(1) for the proposition that an offender shall serve all prison terms imposed before

serving the community control sanction, that provision is limited to sentences imposed pursuant

to divisions (G)(1) and (2) of section 2929.13 of the Revised Code, for felony OVI offenses.

State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766, ¶ 28. That portion of R.C.

2929.15(A)(1) had no applicability to the sexual battery conviction underlying the May case and,

more importantly, has no applicability to the current facts of this case. Id. at ¶ 1.

{¶14} Further, any reliance on R.C. 2929.13(A), which provides that a court may impose

a combination of sanctions that are provided in sections 2929.14 to 2929.18 as authorizating

consecutive sentences, like in May and Heidrick, is misplaced. See State v. Leedy, 4th Dist.

Meigs Nos. 13CA7 and13CA8, 2015-Ohio-1718, ¶ 7-8, citing State v. Heidrick, 8th Dist.

Cuyahoga No. 96822, 2012-Ohio-1739, ¶ 8-9; Kinder, 5th Dist. Delaware No. 03CAA12075,

2004-Ohio-4340, at ¶ 31; State v. Randolph, 12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350, ¶ 6-7; State v. Ramsey, 6th Dist. Wood No. WD-04-004, 2004-Ohio-5677, ¶ 4

(collectively relying on R.C. 2929.13(A) as authority to order consecutive service of community

control sanctions). In Barnhouse, the Ohio Supreme Court held that similar language had no

impact on the determination of whether the legislature authorized the imposition of consecutive

sentences.

{¶15} R.C. 2929.13(A) authorizes a court to impose “a sentence[, a combination of

sanctions pursuant to R.C. 2929.14 through 2929.18,] on an offender for a felony.” (Emphasis

added.) The statute is limited to imposing a combination of sanctions on a singular felony

offense and is silent as to imposing consecutive service of community control sentences upon

multiple felonies. Barnhouse at ¶ 15; State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846

N.E.2d 824, ¶ 9. R.C. 2929.15(A) and 2929.16(A) also use similar language authorizing trial

courts to impose a combination of community control sanctions for a “felony offense.” As the

Ohio Supreme Court noted in Barnhouse, the legislature’s indication that a combination of

sanctions may be imposed for a felony offense is immaterial to resolving whether the sanctions

can be imposed consecutively to one another. Barnhouse, 102 Ohio St.3d 221,

2004-Ohio-2492, 808 N.E.2d 874, at ¶ 15. Authorizing the combination of community control

sanctions for a felony offense is not authorization to impose consecutive service of those

sanctions. Id.

{¶16} In order to determine whether the trial court possessed the authority to order the

imposition of community control sanctions to be served consecutively to the prison term, it must

be determined whether R.C. 2929.41(A) provides an exception to concurrent service of those

sanctions. As the state concedes, the term of confinement in a CBCF is a community control

sanction. State v. Richmond, 8th Dist. Cuyahoga No. 97531, 2012-Ohio-3946, ¶ 13; R.C. 2929.16(A)(1). The only issue in this case is whether consecutive service of community

control sanctions can be imposed. Trial courts may only impose sentences specifically

authorized by statute. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512.

“‘Judges have no inherent power to create sentences.’” Id., citing State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22.

{¶17} The trial court in this case exceeded the authority granted by the legislature by

imposing consecutive service of the community control sanctions on the individual felony

sentence. No provision in the Ohio Revised Code authorizes the imposition of consecutive

community control sanctions.

{¶18} A plain reading of R.C. 2929.41(A) contradicts the state’s position. R.C.

2929.41(A) provides as follows:

Except as provided in division (B) of this section, division (C) of section 2929.14,

or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail

term, or sentence of imprisonment shall be served concurrently with any other

prison term, jail term, or sentence of imprisonment imposed by a court of this

state, another state, or the United States. Except as provided in division (B)(3) of

this section, a jail term or sentence of imprisonment for misdemeanor shall be

served concurrently with a prison term or sentence of imprisonment for felony

served in a state or federal correctional institution.

(Emphasis added.) There are only three exceptions to the concurrent service of jail or prison

terms or a sentence of imprisonment: (1) for misdemeanor sentences pursuant to R.C.

2929.41(B); (2) for felony prison terms pursuant to R.C. 2929.14(C)(4); or (3) for sentences for

certain violent sex offenses pursuant to R.C. 2971.03. In consideration of the fact that the first and third exceptions are inapplicable to the current case, it logically follows that whether the

community control sanctions, including the two-year term at a CBCF, can be imposed

consecutively turns on two issues: (1) whether the community residential sanction of CBCF is a

sentence of imprisonment that must be served concurrently with any other prison or jail term, and

(2) whether any other provision of the Revised Code authorizes the imposition of nonresidential

community control sanctions to be served consecutively to any other sentence.

{¶19} Contrary to the state’s position, R.C. 2929.14(C)(4) is limited to the imposition of

consecutive “prison terms” and is not applicable to the current case. State v. Maloney, 12th

Dist. Clermont No. CA99-01-006, 1999 Ohio App. LEXIS 4600, *7 (Sept. 27, 1999); State v.

Kroger, 12th Dist. Clermont No. CA99-05-050, 2000 Ohio App. LEXIS 1393 (Apr. 3, 2000).

“Prison” is defined as a residential facility used for the confinement of convicted felony

offenders under the control of the Department of Rehabilitation and Correction. R.C.

2929.01(AA). On the other hand, community control sanctions are not prison terms as defined

by the legislature. “‘Community control sanction’ means a sanction that is not a prison term

and that is described” in sections 2929.15 through 2929.18 of the Revised Code. (Emphasis

added.) R.C. 2929.01(E). Courts are authorized to impose CBCF and other residential

sanctions as a community control sanction pursuant to R.C. 2929.16 and 2929.17. Community

control sanctions are not prison terms as statutorily defined. R.C. 2929.14(C)(4) is simply

inapplicable.

{¶20} Further, as the Ohio Supreme Court recognized, there is no definition for “sentence

of imprisonment” in the Revised Code. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808

N.E.2d 874, at ¶ 12. R.C. 1.05(A) provides that “imprisoned” or “imprisonment” means being

“imprisoned under a sentence imposed for an offense * * * in * * * a community-based correctional facility.” Serving a term in a CBCF is “imprisonment” as statutorily defined. It

stands to follow that the imposition of a term at a CBCF is a “sentence of imprisonment.”

Barnhouse. Because no exceptions in R.C. 2929.41(A) authorize the consecutive service of a

“sentence of imprisonment,” a term of imprisonment at a CBCF cannot be imposed consecutive

to a prison term.

{¶21} The only remaining question is whether any nonresidential community control

sanctions pursuant to R.C. 2929.17 may be imposed consecutive to a prison term. In this case,

the trial court ordered two years of monitoring by the probation department following Anderson’s

release from prison. The state has not provided, nor can we locate, any provision of the Revised

Code authorizing the imposition of consecutive nonresidential community control sanctions, to

take effect following an offender’s release from a prison term, except for certain OVI offenses.

R.C. 2929.15(A)(1). Trial courts may only impose sentences specifically authorized by statute.

Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, at ¶ 10.

{¶22} Sections R.C. 2929.13 through 2929.18 are silent with respect to imposing

nonresidential sanctions to be served consecutively to prison terms. Further, R.C. 2929.41 only

addresses prison terms, jail terms, or sentences of imprisonment. Nonresidential community

control sanctions are not prison terms. R.C. 2929.01(E). Nor are they jail terms. R.C.

2929.01(S) (“jail term” means a term in a jail that is imposed pursuant to R.C. 2929.24 and

2929.25, both of which pertain to misdemeanor sentencing). Because nonresidential sanctions

are not prison or jail terms, and because the facts of this case do not involve R.C. 2971.03, there

was no statutory authority for the imposition of nonresidential community control sanctions to be

served consecutively to other sentences. The only three exceptions to concurrent service

provided by R.C. 2929.41 are inapplicable to the current facts. {¶23} Further, it should be noted that whether nonresidential sanctions are considered a

“sentence of imprisonment” is irrelevant to our decision as a result of the legislature’s silence

with regard to the imposition of consecutive nonresidential community control sanctions. If

nonresidential sanctions are considered a “sentence of imprisonment,” the sanctions must be

imposed concurrently because no exception to concurrent service of “sentences of imprisonment”

exists in R.C. 2929.41(A). If they are not, the legislature must specifically authorize the

consecutive imposition of the sanctions before such a sanction can be validly imposed. From

the legislative silence on the latter, we must conclude that imposition of consecutive

nonresidential sanctions pursuant to R.C. 2929.17 is not authorized by law. See Anderson. As

courts are continually reminded, statutory language must be given its plain and ordinary meaning.

N.E. Ohio Regional Sewer Dist. v. Bath Twp., Slip Opinion No. 2015-Ohio-3705, ¶ 12, citing

Youngstown Club v. Porterfield, 21 Ohio St.2d 83, 86, 255 N.E.2d 262 (1970). In this case, the

legislature has not authorized the imposition of consecutive service of community control

sanctions. The silence is deafening. Had the legislature intended to authorize courts to impose

community control sanctions consecutive to prison terms, R.C. 2929.41 could have been drafted

including such an exception to concurrent sentencing.

{¶24} In light of the foregoing, we must reverse Anderson’s conviction as it pertains to

the imposition of the community control sanctions. Because there is no statutory authority for

the imposition of consecutive community control sanctions, the trial court was without authority

to impose the same. The sentence imposed on the identity fraud count is void and must be

vacated. Anderson’s conviction for identify theft is vacated, and the case is remanded.

Anderson’s conviction for robbery and abduction is otherwise affirmed. 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.

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

Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., CONCURS and MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION

MARY J. BOYLE, J., DISSENTING:

{¶25} I respectfully dissent. This court and others have long held that a trial court can

impose a prison term on one offense and community control sanctions on another offense and

order that the community control sanctions commence once the offender is released from prison.

{¶26} In State v. Heidrick, 8th Dist. Cuyahoga No. 96822, 2012-Ohio-1739 (which this

writer was a panel member), this court was faced with nearly an identical set of facts. The

defendant was sentenced to five years in prison on one count and one year of community control

sanctions on another count.

{¶27} The trial court in Heidrick ordered, among other things, as part of the defendant’s

community control, that he be screened for placement into the Northwest Community Based

Correctional Facility for up to six months. The trial court further ordered:

Community control to commence upon release from prison. * * * It is therefore ordered that defendant is sentenced to 1 year(s) of community control, under the supervision of the Adult Probation Department * * *.

Id. at ¶ 3.

{¶28} We explained in Heidrick that R.C. 2929.13(A), which states that “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,”

provides a trial court with discretion to impose a prison term for one offense and community

control sanctions for a separate offense. Id., citing State v. Randolph, 12th Dist. Butler No.

CA2003-10-262, 2004-Ohio-3350, ¶ 6-7; State v. Aitkens, 8th Dist. Cuyahoga Nos. 79851 and

79929, 2002-Ohio-1080; and State v. Molina, 8th Dist. Cuyahoga No. 83166, 2004-Ohio-1110, ¶

10.1

{¶29} This court has just reaffirmed (decision released on November 12, 2015) the same

holding — that a trial court has the discretion under R.C. 2929.13(A) to impose a prison term on

one offense and community control sanctions on another offense that will commence upon

completion of the prison term. See State v. Santiago, 8th Dist. Cuyahoga No. 102433,

2015-Ohio-4674 (upheld a sentence that included a prison term for one offense and a “jail term,

CBCF, and community control sanction” to be served consecutively for another offense). See

also State v. Martin, 8th Dist. Cuyahoga No. 100723, 2014-Ohio-3913, and State v. Carswell,

8th Dist. Cuyahoga Nos. 101313 and 101314, 2015-Ohio-764. We noted in Martin and

1 In Molina, the trial court judge sentenced the offender to prison on one offense and ordered that it be served consecutively to community control sanctions on another offense; the judge 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. Griffin and Katz, Ohio Felony Sentencing Law, Thompson West 2007. Carswell that although a trial court cannot impose both a prison sentence and community control

sanctions for the same offense, it may do so for separate offenses. Martin at ¶ 8-9; Carswell at

¶ 8.

{¶30} Other districts have also held that a trial court may impose a prison term on one

offense and community control sanctions on another offense and order the community control

sanctions to commence when the offender is released from prison. See State v. Leedy, 4th Dist.

Meigs No. 13CA7 and 13CA8, 2015-Ohio-1718; State v. O’Connor, 5th Dist. Delaware No.

04CAA04-028, 2004-Ohio-6752, State v. Ramsey, 6th Dist. Wood No. WD-04-004,

2004-Ohio-5677; and Randolph, 12th Dist. Butler No. CA2003-10-262, 2004-Ohio-3350.

{¶31} The trial court in this case attempted to appropriately punish Anderson for his

conduct in committing the offenses, while at the same time tried to help Anderson become a

more productive and law-abiding citizen after he was released from prison. The court’s goal is

supported by R.C. 2929.11, which sets forth the overriding purposes of felony sentencing.

{¶32} R.C. 2929.11(A) states:

A court that sentences an offender for a felony shall be guided by the overriding

purposes of felony sentencing. The overriding purposes of felony sentencing are

to protect the public from future crime by the offender and others and to punish

the offender using the minimum sanctions that the court determines accomplish

those purposes without imposing an unnecessary burden on state or local

government resources. To achieve those purposes, the sentencing court shall

consider the need for incapacitating the offender, deterring the offender and others

from future crime, rehabilitating the offender, and making restitution to the victim

of the offense, the public, or both. (Emphasis added.)

{¶33} Anderson was young, only 22 years old at the time of sentencing. The trial court

heard from his probation officer, who informed the court that Anderson had failed several drug

tests, did not comply with his outpatient drug treatment program, or verify that he had attended

GED classes. Anderson’s father spoke to the court, telling the court that he spent many years of

his life with substance abuse issues, and blaming himself for many of Anderson’s problems.

Anderson’s mother also spoke to the court, stating that Anderson had a learning disability and

that she attempted to help Anderson attend his AA meetings, but he could not make the most of

the meetings because he had to work. Anderson stated that being in jail for 197 days was

“eye-opening,” and that he learned he wanted to get his life together and be a more productive

member of society.

{¶34} In imposing Anderson’s sentence, the following took place at the sentencing

hearing:

THE COURT: With regard to * * * the identity fraud offense, Count 8, that is a felony of the fifth degree. I’m going to run that consecutive to the robbery and abduction, and I’m going to order you to be on probation for that charge.

I’m going to have you — when you’re released from prison, you’re going to come back and be placed in the CBCF facility for a six-month period. CBCF is a confinement facility next to the post office in downtown Cleveland. It is not a jail. It is not a prison. It is a bunk bed facility that has about 150 to 200 men where you will get drug treatment training, you will get GED schooling, you will get training for Thinking For a Change. In other words, making better decisions about yourself and you will do that in a confinement setting, but very different than prison or jail.

You will be allowed to be released from that facility after you do three months, if you have done everything properly. You will have to return there in the evening to stay overnight, but you will be back out in the community during the day to either take care of your business or take care of working or start working, but you will come back during the evening and stay there until you complete your stay. It is a maximum of six months. For many people it is three months to six months.

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You need to have some of these issues addressed, and this is the proper way to do that. If you get that treatment in prison, great, but you’re going to at least have a program where if it doesn’t happen there, it will happen at the CBCF. You will be placed on probation for a two-year time period.

You will also be on post-release control at the same time, so I’m not adding anything more to that. It will be part of that same sentence. I’m sentencing you to a total of three years, one with the gun specification and two with the robbery, because your conduct that night is such that it is very serious.

I know you’ve got issues, and I’m trying to address those issues, but it’s important to address the conduct, and I’m trying to match the conduct with what I think is the appropriate sentence and to make it as minimum a sentence that I could impose that deals with the nature of your conduct.

You have a lot of family support. You’re going to need that family

support. I expect that they will continue to be with you during that time period

and help you through this process.

{¶35} The trial court was clearly attempting to protect the public and punish Anderson

with the three-year prison term, while at the same time attempting to rehabilitate a 22-year-old

offender once he served his prison sentence. For this court to say that the judge cannot do so

seems counterintuitive and against the overriding purposes of felony sentencing under R.C.

2929.11.

{¶36} I would also like to point out that by vacating Anderson’s sentence for the identity

fraud count, the majority is essentially removing the trial court’s sentencing discretion. Upon

remand, the trial court can either sentence Anderson to prison or community control sanctions for the identify fraud count. If the majority’s interpretation is correct, then any community control

sentence that the trial court imposed would have to be served concurrent to the prison term. But

if Anderson is in prison, he cannot serve the community control sanction. It begs the question:

could the trial court sentence Anderson to five years of community control sanctions on the

identity fraud count, with the first three years having to be served concurrent to the prison term,

with the remaining two years beginning once Anderson was released from prison?

{¶37} Thus, based on well-established law in this district and others, I respectfully

dissent. I would affirm Anderson’s sentence, but remand for the trial court to issue a new

sentencing entry nunc pro tunc to reflect the actual term in the community-based correctional

facility that it imposed at the sentencing hearing.