State v. Roberts

2016 Ohio 5319

Opinion

[Cite as State v. Roberts, 2016-Ohio-5319.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103307

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

BARRY D. ROBERTS DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-592427-A

BEFORE: Stewart, J., Jones, A.J., and Keough, J.

RELEASED AND JOURNALIZED: August 11, 2016 ATTORNEY FOR APPELLANT

Richard Agopian 1415 West Ninth Street, Second Floor Cleveland, OH 44113

ALSO LISTED:

Barry D. Roberts, pro se Inmate No. 671791 Mansfield Correctional Institution P.O. Box 788 Mansfield, OH 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

Mary McGrath Fallon Radigan Assistant County Prosecutors Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Defendant-appellant Barry Roberts pleaded guilty to one count of domestic

violence and one count of endangering children. The court imposed a 36-month prison

term for the domestic violence count and time-served on the misdemeanor endangering

children count. The court also ordered Roberts “to have no contact with the victim.”

{¶2} The sole assignment of error in this appeal is premised on State v. Anderson,

143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, where the Supreme Court held that

“the General Assembly intended prison and community-control sanctions as alternative

sentences for a felony offense[,]” so that “when a prison term and community control are

possible sentences for a particular felony offense, absent an express exception, the court

must impose either a prison term or a community-control sanction or sanctions.” Id. at ¶

31. A no-contact order is a form of community control sanction, id. at ¶ 17, so it is

generally illegal for the court to impose a felony sentence and a no-contact order. Id. at ¶

32.

{¶3} The state concedes that “the no contact order is contrary to the holding in

Anderson” because the court had no authority to order both a prison term and a

community control sanction for the offenses that Roberts committed. It suggests that the

sentencing entry be modified to delete the no-contact order, particularly given that the

court did not mention the no-contact order during sentencing (at sentencing, Roberts

voluntarily agreed to avoid contact with the victims). We agree with the state’s concession and its suggested disposition of this appeal. We sustain the assignment of

error and remand so that the court can issue a new sentencing entry that deletes the

no-contact order.

{¶4} Judgment reversed and remanded.

It is ordered that appellant recover of appellee 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.

______________________________________________ MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., A.J., and KATHLEEN ANN KEOUGH, J., CONCUR