[Cite as State v. Green , 2019-Ohio-5167.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY

STATE OF OHIO, Appellee,

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RYAN GREEN, Appellant. :

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:

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: CASE NOS. CA2019-04-030 CA2019-04-031 CA2019-04-032 O P I N I O N

12/16/2019

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case Nos. 18CR34859, 18CR34992, and 18CR35203

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee Anzelmo Law, James A. Anzelmo, 446 Howland Drive, Gahanna, Ohio 43230, for appellant

RINGLAND, J. {¶ 1} Appellant, Ryan Green, appeals his sentence in the Warren Count y Court of Common Pleas. For the reasons detailed below, we reverse the d ecision of the trial court and remand for further proceedings. {¶ 2} Green pled guilty to felony counts in three cases. In Case No. 18CR34992, he pled guilty to possession of heroin, possession of a fentanyl-r elated compound, and aggravated possession of drugs. In Case No. 18CR34859, he pled guilty to three counts ofWarren CA2019-04-030 CA2019-04-031 CA2019-04-032

- 2 - aggravated possession of drugs and one count of possession of d rugs. Additionally, in Case No. 19CR35203, Green pled guilty to illegal conveyance of drugs of abuse. {¶ 3} In Case No. 19CR35203, the trial court sentenced Green to a 24- month prison term. In Case Nos. 18CR34992 and 18CR34859, the trial court se ntenced Green to three years of community control. As a condition of community contro l, the trial court ordered Green to complete a treatment program in a community-based corr ectional facility ("CBCF"). The trial court ordered Green's community control with CBCF to run consecutive to his prison sentence. Green now appeals, raising a single assignmen t of error for review: {¶ 4} THE TRIAL COURT ERRED BY ORDERING RYAN GREEN TO SERVE HIS PRISON SENTENCE CONSECUTIVE TO HIS COMMUNITY CONTROL SENTENCE, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS UNDER THE FIFTH AND FOUR TEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, AR TICLE I OF THE OHIO CONSTITUTION. {¶ 5} In his sole assignment of error, Green argues the trial court e rred by ordering him to serve community control consecutive to his prison term. The state concedes the error. {¶ 6} We review the imposed sentence under the standard of review set forth in R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. An appellate court may modify or vacate a sentence only if the appellate court finds by clear and convincing evidence that "th e record does not support the trial court's findings under relevant statutes or that the sent ence is otherwise contrary to law."

Id . A sentence is not clearly and convincingly contrary to law w here the trial court "considers the principles and purposes of R.C. 2929.11, as well as the fac tors listed in R.C. 2929.12, properly imposes postrelease c ontrol, and sentences the defenda nt within the permissible statutory range." State v. Dinka , 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-Warren CA2019-04-030 CA2019-04-031 CA2019-04-032

- 3 - 026, 2019-Ohio-4209, ¶ 36. Thus, this court may "increase, red uce, or otherwise modify a sentence only when it clearly and convincingly finds that the s entence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg , 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1. {¶ 7} In State v. Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, the Supreme Court held that "'the only sentence which a trial judge may impose is that provided for by statute * *

*.'" Id . at ¶ 12, quoting State v. Beasley , 14 Ohio St.3d 74, 75 (1984). Recently, the Court held that a trial court has no authority to impose community co ntrol sanctions on one felony count to be served consecutively to a prison term imposed on an other felony count. State v.

Hitchcock , 157 Ohio St.3d 215, 2019-Ohio-3246, ¶ 1. This is because the re is no provision in the Revised Code that authorizes a trial court to impose commun ity control sanctions on one felony count to be served consecut ively to a prison term impose d on another felony count.

Id. at ¶ 24. In addition, "[b]ecause a term of confinement in a C BCF is not a prison term, R.C. 2929.14(C)(4) does not permit a court to impose a CBCF ter m consecutively to a prison

term." Id . at ¶ 12. {¶ 8} In the present case, the trial court sentenced Green to a 24-mo nth prison term in Case No. 19 CR 35203 and ordered him to serve a consecutive term of community control with placement in a CBCF in Case Nos. 18CR34859 and 18CR34992. The 24-month prison term in Case No. 19CR35203 was authorized by law; however pursu ant to Hitchcock , the consecutive community control sanction with the CBCF condition was not. Accordingly, we reverse the trial court's sentencing decision in Case Nos. 18CR 34859 and 18CR34992. Green's sole assignment of error is sustained. {¶ 9} Judgment reversed and remanded.Warren CA2019-04-030 CA2019-04-031 CA2019-04-032

- 4 - HENDRICKSON, P.J., and PIPER, J., concur.

PIPER, J., concurring separately. {¶ 10} This is yet another case revealing the inadequacies of Ohio's s tatutory sentencing structure. I concur with the forgoing opinion only because, as the lead opinion points out, the trial court is constrained by a lack of statuto ry authority. This constraint prevents a prison sentence, and then consecutive to that, a ter m of community control with a CBCF as a condition. {¶ 11} In my opinion the legislature is shortsighted in not authorizin g such sentencing

sanctions to be combined and consecutive to one another. This is particularly true when a trial court finds it necessary to punish the offender while sim ultaneously utilizing a CBCF to increase the potential for an i ndividual's rehabilitation. Thi s continued shor tsightedness w ill undoubtedly hamper Ohio judges in rendering a sentence believed to be warranted and just. {¶ 12} The power of addiction is all-consuming; it destroys a person's will and corrupts the very soul. This is uncontestable. Yet with the right mix of punishment, supervision, and assistance, not all, but some, are redeemable. We would better serve both the drug abuser, and Ohio's citizens at large, if the legislature gave judges th e authority to administer a needed punishment (a sanction of imprisonment) to be followed b y a mix of intensive supervision, counseling, and educat ion (a sanction of community control). {¶ 13} After punishment, but while using the stringent requirements of community resources, a judge is better able to fulfill the purposes and p rinciples of sentencing which sometimes needs to include a CBCF. The discretion a judge need s in sentencing should not be limited, as it is, by our current statutes. The metapho r "carrot and stick" emphasizes that sometimes a combination of approaches is necessary to moti vate desired behavior. AsWarren CA2019-04-030 CA2019-04-031 CA2019-04-032

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a society we have come to know too well that incarceration alon e fails miserably at behavioral modification. Yet many drug-related offenders canno t escape the hypnotic seduction of illicit drugs wit hout a multi-faceted approach. {¶ 14} A trial judge is statutorily required to consider the purposes and principles of sentencing. Here the trial judge determined after reviewing Gre en's PSI that the purposes and principles of sentencing required that Green be punished fo r his criminality by serving a two-year term of imprisonment. Additionally, to honor the impo rtance of those same purposes and principles, the trial judge determined the best ch ance for protecting society from future misconduct and towa rds rehabilitating Green, would be through the benefits of community control and a CBCF ( which includes counseling and edu cation). As well thoughtout as the judge's sentence was, our appellate review is requir ed to reverse that sentence due to the statutes as currently written. Hopefully these stat utes will be changed sometime

soon. {¶ 15} I am compelled to commend the trial judge for recognizing the i mportance of rehabilitation toward the higher goal of protecting the public by reducing future criminal conduct and thereby slowing down the revolving door of incarcer ation. Hopefully the legislature recognizes in the near future the need to grant tri al judges the ability to impose community control sanctions cons ecutive to imprisonment when ne eded. The potential benefits would be immense. 1

1. Shortening prison terms and diverting certain offenders fro m lengthy terms not only facilitates reducing the prison population but also saves the associated costs of incarc eration. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 20. Further revealing the need for statutory sentencing reform is State v. Ervin , 12th Dist. Butler No. CA2016-04-079, 2017-Ohio-1491, where the sentence wa s community control consecutive to a threeyear mandatory prison term. This court reversed because there was no authority for community control consecutive to prison despite the trial judge determining this was the appropriate sentence to serve the purposes and principles of sentencing. When resentenced on remand, Ervi n received a four-year sentence instead of community control.