State v. Bennett

2016 Ohio 7220

Opinion

[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