State v. Murphy

2022 Ohio 1551

• Court: Ohio Court of Appeals
• Decided: May 9, 2022
• Docket: 6-21-11
• Status: Published

Opinion

[Cite as State v. Murphy, 2022-Ohio-1551.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

STATE OF OHIO, CASE NO. 6-21-11 PLAINTIFF-APPELLEE,

v.

DANIEL PATRICK MURPHY, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court Trial Court No. CRI 20212070

Judgment Reversed and Cause Remanded

Date of Decision: May 9, 2022

APPEARANCES:

Emily P. Beckley for Appellant

Andrew R. Tudor for Appellee Case No. 6-21-11

WILLAMOWSKI, J.

{¶1} Defendant-appellant Daniel P. Murphy (“Murphy”) brings this appeal

from the judgment of the Court of Common Pleas of Hardin County sentencing him

to 18 months in prison and ordering the sentence to be served consecutive to that in

a federal case. Murphy argues on appeal that the imposition of consecutive

sentences in this case is contrary to law. For the reasons set forth below, the

judgment is reversed.

{¶2} On October 6, 2021, Murphy entered a guilty plea to one count of

aggravated possession of drugs in violation of R.C. 2925.11(A), 2925.11(C)(1)(b),

a felony of the third degree. Doc. 47. The trial court proceeded to sentence Murphy

immediately. Doc. 48. The trial court ordered Murphy to serve a prison term of 18

months and ordered that the sentence be served consecutive to the sentence

previously imposed in United States District Court for the Northern District of Ohio

case number 3: 19CR00354. Doc. 48 at 4. At the time of the sentencing, Murphy

had been sentenced to supervision in the federal case, but did have a violation

pending. Tr. 5. The possible changes to the terms of supervision in the federal case

were still pending at the time of the sentencing hearing. Tr. 38-39. The parties all

chose to go forward with the sentencing at that time rather than waiting for a pre-

sentence investigation to be completed. Tr. 37. The federal hearing was scheduled

for November 1, 2021. Tr. 43. The trial court then apparently ordered that the Ohio

sentence be served consecutively to whatever sentence the federal court chose to

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impose at the November 1, 2021 hearing. Tr. 50. The trial court entered its

judgment entry reflecting its decision on October 7, 2021. Doc. 48. Murphy

appealed from this judgment and raised the following assignment of error.

The trial court erred when sentencing [Murphy] as the record does not support consecutive sentences and/or the consecutive sentences are contrary to law.

{¶3} Murphy’s sole assignment of error is that the trial court erred by

ordering the sentence in this case be served consecutive to that in the federal case.

We agree. At the time the sentence was imposed by the trial court, the sentence in

the federal court was supervision without a prison element, though he had a

violation of his supervision pending. So, imposing a prison term consecutive to

what was, at that time, zero prison time would result in an aggregate sentence of 18

months in prison. Additionally, the Supreme Court of Ohio has held that trial courts

do not have the authority to impose community-control sanctions on one felony

count to be served consecutively to a prison term imposed on another felony count.

State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, ¶ 24, 134 N.E.3d 164.

Here, the supervision sentence imposed by the federal courts, which is analogous to

Ohio’s community-control sanction, was imposed first. Although the Supreme

Court of Ohio did not specifically address this issue, the logic in Hitchcock would

apply and make it unreasonable for a trial court to impose a prison term consecutive

to a community-control sanction.

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{¶4} A review of the record and the brief filed by the State indicates that the

sentence may have been intended to run consecutive to any prison time imposed at

the violation hearing on November 1, 2021. The problem is that when this sentence

occurred on October 6, 2021, any sentence from a future hearing was speculative.

This Court recently reaffirmed prior holdings “that when a trial court orders a

sentence to run consecutively to sentences that had not yet been imposed, the trial

court has exceeded the authority granted to it by statute.” State v. Kavanaugh, 3d

Dist. Hardin No. 6-21-07, 2021-Ohio-4368 ¶ 7, citing State v. Ferguson, 3d Dist.

Union No. 14-02-14, 2003-Ohio-866 and State v. Sears, 3d Dist. Wyandot No. 16-

02-07, 2002-Ohio-6257. By imposing a sentence to run consecutive to one, which

had yet to be imposed by another court, the trial court exceeded the scope of its

statutory authority. For these reasons, the assignment of error is sustained.

{¶5} Having found prejudicial error to the appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Hardin County

is reversed and the matter is remanded for further proceedings in accordance with

this opinion.

ZIMMERMAN, P.J. and MILLER, J., concur.

/hls

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