[Cite as State v. Murphy , 2020-Ohio-453.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : AUDIE MURPHY, : Case No. 2019 CA 0066 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2018-CR-29

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: February 10, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP DARIN AVERY Prosecuting Attorney 105 Sturges Avenue Richland County Mansfield, Ohio 44903

By: JOSEPH C. SNYDER Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902Richland County, Case No. 2019 CA 0066 2

Baldwin, J. {¶1} Defendant-appellant Audie Murphy appeals his sentence from the Richland County Court of Common Pleas. Plaintiff-appellee is the State o f Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} On January 17, 2018, the Richland County Grand Jury indicted ap pellant on one count of theft from a person in a protected class in vio lation of R.C. 2913.02(A)(1) and (B)(3), a felony of the fifth degree, and one count of thef t from a person in a protected class in violation of R.C. 2913.02(A)(1) and (B)(3), a felony o f the third degree. At his arraignment on September 25, 2018, appellant entered a plea of not guilty to the charges. Appellant was appointed counsel. {¶3} On November 5, 2018, appellant’s counsel filed a Motion to With draw. Pursuant to an Entry filed on November 7, 2018, the motion was granted and new counsel was appointed. On January 10, 2019, a bench warrant was issued for appellant’s arrest after his bond was revoked. Appellant was arrested shortly ther eafter. On February 27, 2019, appellant was released due to jail overcrowding. Another bench warrant was issued for appellant’s arrest after his bond was revoked. {¶4} As memorialized in a Judgment Entry filed on April 16, 2019 app ellant entered a plea of guilty to both counts. Sentencing was schedul ed for June 3, 2019 and was later rescheduled to June 10, 2019. After appellant failed to appear for sentencing, a bench warrant was issued. On June 28, 2019, appellant appear ed with counsel and

was sentenced to twelve months on Count One and to a sentence o f thirty-six months of community control on Count Two. At the sentencing hearing, appe llant’s counsel had argued that the two offenses were allied offenses of similar im port. The trial court, in itsRichland County, Case No. 2019 CA 0066 3

July 2, 2019 Entry, ordered that the thirty-six months of commu nity control was “to begin after prison term.” {¶5} Appellant now appeals, raising the following assignments of err or on appeal: {¶6} “I. THE TRIAL COURT ERRED BY FAILING TO MERGE THE ALLIED

OFFENSES OF SIMILAR IMPORT CON TRARY TO R.C. 2941.25(A).” {¶7} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING AN

ELEVATED SENTENCE FOR MR. MURPHY’S FAILURE TO APPEAR AT HIS

ORIGINAL SENTENCING DATE.”

I {¶8} Appellant, in his first assignment of error, argues that the tr ial court erred in failing to merge allied offenses of similar import contrary to R.C. 2941.25(A). Appellant argues that his sentence was contrary to law. {¶9} In the case sub judice, appellant was sentenced to twelve month s in prison on Count One. The trial court, in its Entry, ordered that appel lant’s thirty-six month community control sentence on Count Two was to “begin after pri son term.” {¶10} 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, 59 N.E.3d 1231 ¶ 1. An appellate court may modify or vacate a sentence only if the appellate court finds by clear and convinc ing evidence that “the record does not support the trial court's findings under relevant stat utes or that the sentence is otherwise contrary to law.” Id. A sentence is not clearly and convincingly contrary to law where the trial court “considers the principles and purposes of R.C. 2929.11, as well asRichland County, Case No. 2019 CA 0066 4

the factors listed in R.C. 2929.12, properly imposes postreleas e control, and sentences the defendant within the permissible statutory range.” State v. Dinka , 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36. Thu s, this court may “increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupport ed by the record.” State v. Brandenburg , 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d 1217 ¶ 1. {¶11} In State v. Hitchcock , 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, at ¶ 24 the Ohio Supreme Court held as follows: Because no provision of the Revised Code authorizes trial court s to impose community-control sanctions on one felony count to be se rved consecutively to a prison term imposed on another felony count, we must conclude that trial courts may not do so. We accordingly * * * conclude that unless otherwise authorized by statute, a trial court may not i mpose community-control sanctions on one felony count to be served consecutively to a prison term imposed on another felony count. {¶12} To the extent that appellant argues that his sentence was contr ary to law, we sustain, albeit for different reason, appellant’s first assi gnment of error. We conclude that in the instant case, the trial court was not authorized to impose a term of community control consecutive to a term of imprisonment. Appellant’s sent ences are reversed and vacated, and this matter is remanded to the trial court for fur ther proceedings.Richland County, Case No. 2019 CA 0066 5

{¶13} Accordingly, the judgment of the Richland County Court of Commo n Pleas

is reversed and this case is remanded to the trial court for re sentencing consistent with this opinion. Hitchcock , supra, 2019-Ohio-3246 at ¶ 25. By: Baldwin, J. Gwin, P.J. and Delaney, J. concur.