State v. Randolph

2018 Ohio 4652

• Court: Ohio Court of Appeals
• Decided: November 16, 2018
• Docket: 17 CA 52
• Status: Published

Opinion

[Cite as State v. Randolph, 2018-Ohio-4652.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 17 CA 52 CONNIE RANDOLPH

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 17 CR 235

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 16, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

R. KYLE WITT SCOTT P. WOOD PROSECUTING ATTORNEY CONRAD / WOOD JOEL C. WALKER 120 East Main Street ASSISTANT PROSECUTOR Suite 200 239 West Main Street, Suite 101 Lancaster, Ohio 43130 Lancaster, Ohio 43130 Fairfield County, Case No. 17 CA 52 2

Wise, John, P. J.

{¶1} Defendant-Appellant Connie M. Randolph appeals the decision of the Court

of Common Pleas, Fairfield County, which sentenced her for community control

violations. Appellee is the State of Ohio. The relevant facts leading to this appeal are as

follows.

{¶2} On May 22, 2017, appellant was indicted on several felony counts, including

forgery and misuse of a credit card, by the Fairfield County Grand Jury.

{¶3} On July 13, 2017, appellant appeared in court with counsel and entered a

guilty plea to one count of forgery, a felony of the fifth degree. She was thereupon

sentenced to seven months in prison.

{¶4} On October 3, 2017, after serving part of her prison term, appellant was

granted judicial release via an order from the trial court. She was further placed on

community control for a period of five years.

{¶5} However, on December 11, 2017, appellant appeared in court and admitted

to violating her community control by being charged with a new misdemeanor offense, by

failing to report to the community control department, by failing to attend counseling, by

testing positive for prohibited substances, by violating house arrest, and by letting her

GPS monitor power down.

{¶6} Accordingly, the trial court found appellant had “technically violated” certain

terms and conditions of her community control as to her forgery count, and it imposed a

ninety-day prison sanction, ordering that it be consecutive to the prison sanctions

imposed by the trial court for the same violations of her community control in a separate Fairfield County, Case No. 17 CA 52 3

case, Fairfield Common Pleas case number 17-CR-98, for a total prison sanction of 270

days. See Judgment Entry, December 12, 2017, at 1-2.

{¶7} On December 20, 2017, appellant filed a notice of appeal. She herein raises

the following sole Assignment of Error:

{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT AFTER A

COMMUNITY CONTROL VIOLATION.”

I.

{¶9} In her sole Assignment of Error, Appellant Randolph contends the trial court

erred in ordering her to serve a ninety-day prison sentence for violating community

control, consecutive to her sanction in a separate case. We disagree.

{¶10} R.C. 2953.08(G)(2) sets forth the standard of appellate review of felony

sentences. State v. Daniels, 5th Dist. Muskingum No. CT2016-0021, 2017-Ohio-1045, ¶

13, citing State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1. Thus, pursuant to

R.C. 2953.08(G)(2), an appellate court may only “increase, reduce, or otherwise modify

a sentence * * * or may vacate the sentence and remand the matter to the sentencing

court for resentencing” if the court clearly and convincingly finds “(a) [t]hat the record does

not support the sentencing court's findings[,]” or “(b) [t]hat the sentence is otherwise

contrary to law.” This same standard applies on appellate review of the imposition of

consecutive sentences following a community control revocation hearing. State v.

Haddox, 6th Dist. Erie No. E-15-017, 2016-Ohio-3368, 66 N.E.3d 262, ¶ 32.

{¶11} R.C. 2929.15(B)(1), as written at the time appellant received her sanction

for violating community control, reads as follows in pertinent part: Fairfield County, Case No. 17 CA 52 4

If the conditions of a community control sanction are violated or if the

offender violates a law or leaves the state without the permission of the

court or the offender's probation officer, the sentencing court may impose

upon the violator one or more of the following penalties:

***

(c) A prison term on the offender pursuant to section 2929.14 of the

Revised Code and division (B)(3) of this section, provided that a prison term

imposed under this division is subject to the following limitations, as

applicable:

(i) If the prison term is imposed for any technical violation of the

conditions of a community control sanction imposed for a felony of the fifth

degree or for any violation of law committed while under a community

control sanction imposed for such a felony that consists of a new criminal

offense and that is not a felony, the prison term shall not exceed ninety

days.

***.

{¶12} Appellant in the case sub judice emphasizes that there is no language in

R.C. 2929.15(B)(1)(c)(i), supra, specifically authorizing consecutive prison terms for

community control violations. She thus essentially contends that the silence in the statute

should be liberally construed in her favor, under the general rule of construction found in

R.C. 2901.04(A).

{¶13} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. State v. Smith, 5th Dist. Ashland No. 18-COA-002, 2018-Ohio- Fairfield County, Case No. 17 CA 52 5

4188, ¶ 13, citing R.C. 2929.41(A). Nonetheless, “[t]he legislature has expressly granted

trial courts the ‘discretion to determine the most effective way’ to achieve the purposes

and principles of sentencing. R.C. 2929.12(A). Such discretion gives trial courts the

inherent authority to determine whether sentences shall run concurrently or

consecutively.” State v. Mize, 12th Dist. Butler No. CA2017-11-159, 2018-Ohio-3848, ¶

29, citing State v. Bates, 118 Ohio St.3d 174, 2008–Ohio–1983, 887 N.E.2d 328, ¶ 19.

{¶14} The General Assembly has put some restraint on this “inherent authority”

via the requirement of findings set forth in R.C. 2929.14(C)(4), and at least one Ohio

appellate court has concluded that when an offender's community control is revoked and

multiple prison terms are imposed, the trial court must make findings under R.C.

2929.14(C)(4) before imposing consecutive sentences at a revocation sentencing

hearing. See State v. Gibson, 2nd Dist. Champaign No. 2016-CA-12, 2017-Ohio-691, ¶

20, citing State v. Stevens, 2nd Dist. Greene No. 2014–CA–10, 2015–Ohio–1051, ¶ 9.

{¶15} However, we find appellant has not presented such an argument on the

question of consecutive sentence findings (see R.C. 2953.08(G)(2)(a), supra), and is

instead challenging on more general grounds that consecutive prison terms for violating

community control in this context are contrary to law (see R.C. 2953.08(G)(2)(b), supra).

Upon review of the latter claim, we find no reversible error in the trial court’s decision. Fairfield County, Case No. 17 CA 52 6

{¶16} Appellant's sole Assignment of Error is therefore overruled.

{¶17} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Fairfield County, is hereby affirmed.

By: Wise, John, P. J.

Hoffman, J., and

Wise, Earle, J., concur.

JWW/d 1029