[Cite as State v. Caserta, 2019-Ohio-1798.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DAVID LEE CASERTA 

Defendant-Appellant 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 28300 

Trial Court Case No. 2018-CR-3192 

(Criminal Appeal from 

Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 10th day of May, 2019. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

WILBURN L. BAKER, Atty. Reg. No. 0076844 and ANNA S. FISTER, Atty. Reg. No. 

0076531, 1423 Research Park Drive, Beavercreek, Ohio 45432 

 Attorneys for Defendant-Appellant 

 . . . . . . . . . . . . . 

 

WELBAUM, P.J. 
-2- 

{¶ 1} Defendant-appellant, David Lee Caserta, appeals from a judgment of the 

Montgomery County Court of Common Pleas, which convicted him of one count of 

felonious assault after he entered a guilty plea. Specifically, Caserta challenges his 

sentence. In support of his appeal, Caserta contends that his sentence is contrary to 

law because the trial court imposed both a prison term and a community control sanction 

for his offense. The community control sanction at issue was an order for Caserta to 

have no contact with the victim. The State concedes that Caserta’s sentence is contrary 

to law. We agree. Because Caserta’s sentence is contrary to law, the judgment of the 

trial court will be modified to vacate the no contact order, and the judgment will be affirmed 

as modified. 

Facts and Course of Proceedings 

{¶ 2} On January 14, 2019, Caserta entered a negotiated guilty plea to one count 

of felonious assault with a deadly weapon in violation of R.C. 2903.11(A)(2). After 

accepting Caserta’s guilty plea, on January 30, 2019, the trial court sentenced Caserta to 

two years in prison. In addition to prison, the trial court ordered Caserta to have no 

contact with the victim while he was incarcerated. Caserta thereafter filed the instant 

appeal with regard to his sentence, raising one assignment of error for review. 

Assignment of Error 

{¶ 3} Under his sole assignment of error, Caserta contends that his sentence is 

contrary to law because the trial court was not authorized to impose both a prison term 
-3- 

and a no contact order for his felonious assault offense. The State concedes error. We 

agree that Caserta’s sentence is contrary to law. 

{¶ 4} When reviewing felony sentences, appellate courts must apply the standard 

of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may 

increase, reduce, or modify a sentence, or it may vacate the sentence and remand for 

resentencing, only if it “clearly and convincingly” finds either (1) that the record does not 

support certain specified findings or (2) that the sentence imposed is contrary to law. 

{¶ 5} Sentences are “contrary to law” when they do not fall within statutory ranges 

for offenses or when the trial court fails to consider “the purposes and principles of felony 

sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.” 

State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.), citing State v. Pawlak, 

8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. “The trial court has full discretion 

to impose any sentence within the authorized statutory range, and the court is not required 

to make any findings or give its reasons for imposing maximum or more than minimum 

sentences.” (Citation omitted.) State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 

(2d Dist.). However, in exercising its discretion, a trial court must consider the statutory 

criteria that apply to every felony offense, including those set out in R.C. 2929.11 and 

R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, 

¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, 

¶ 38. 

{¶ 6} “ ‘[C]urrent felony sentencing statutes, contained primarily in R.C. 2929.11 to 

2929.19, require trial courts to impose either a prison term or community control sanctions 
-4- 

on each count.’ ” State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 

512, ¶ 23, quoting State v. Berry, 2012-Ohio-4660, 980 N.E.2d 1087, ¶ 21 (3d Dist.) 

(Other citations omitted.) As a result, the Supreme Court of Ohio has held that “as a 

general rule, 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. 

{¶ 7} Many courts, including the Supreme Court of Ohio, have recognized that a 

no-contact order is a community control sanction. Id. at ¶ 17, citing State v. Snyder, 3d 

Dist. Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 55; State v. Schwartz, 6th Dist. Wood No. 

WD-12-060, 2013-Ohio-3958, ¶ 9-12; State v. Marcum, 4th Dist. Hocking Nos. 11CA8 

and 11CA10, 2012-Ohio-572, ¶ 11; State v. Simms, 12th Dist. Clermont No. CA2009-02-

005, 2009-Ohio-5440, ¶ 25; State v. Loveless, 2d Dist. Champaign No. 2002 CA 16, 2002-

Ohio-5380, ¶ 18. 

{¶ 8} In Anderson, the trial court imposed a prison term for each of the defendant’s 

rape and kidnapping offenses. Id. at ¶ 2. The trial court also ordered the defendant to 

have no contact with the victim. Id. The Supreme Court of Ohio held that “[b]ecause a 

court cannot impose a prison term and a community-control sanction for the same 

offense, and no exception allows otherwise, * * * the trial court erred in imposing the nocontact order.” Id. at ¶ 32. Therefore, the Supreme Court ordered the no-contact order 

to be vacated. Id. 

{¶ 9} The present case is analogous to Anderson. Here, the trial court imposed a 

two-year prison term for felonious assault and ordered Caserta to have no contact with 

the victim. As previously discussed, Ohio’s felony sentencing statutes require the trial 
-5- 

court to impose either a prison term or community control sanctions, such as a no contact 

order, for the same offense. Therefore, Caserta’s sentence is contrary to law and must 

be modified to vacate the no contact order. 

{¶ 10} Caserta’s assignment of error is sustained. 

Conclusion 

{¶ 11} Having sustained Caserta’s assignment of error, the judgment of the trial 

court is modified to vacate the no contact order and the judgment is affirmed as modified. 

. . . . . . . . . . . . . 

DONOVAN, J. and HALL, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

Lisa M. Light 

Wilburn L. Baker 

Anna S. Fister 

Hon. Mary Katherine Huffman