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Court News Ohio
Court News Ohio

Judge Cannot Impose Community Controls to be Served After Prison Sentence

The Ohio Supreme Court found today that Ohio’s criminal sentencing laws do not allow a trial court to impose community control sanctions for a felony offense to run consecutively to a prison sentence imposed for another felony offense.

Justice Patrick F. Fischer, in the Supreme Court’s lead opinion, explained that judges are allowed only to impose sentences authorized by Ohio law, and nothing in the Ohio Revised Code authorizes a judge to impose community control sanctions consecutively to a prison sentence.

Chief Justice Maureen O’Connor concurred in judgment only. Justices Michael P. Donnelly and Melody J. Stewart concurred with separate written opinions.

Justice R. Patrick DeWine dissented with a written opinion, which was joined by Justices Sharon L. Kennedy and Judith L. French.

Sex Offender Imprisoned and Sanctioned
In 2016, Jeffrey A. Hitchcock pleaded guilty to three felony counts of unlawful sexual conduct with a minor. A Fairfield County Common Pleas Court judge accepted Hitchcock’s guilty plea. 

At sentencing, the trial court ruled that it was necessary that Hitchcock serve a significant amount of time in prison to reflect the severity of his actions. The court also found that it was important that Hitchcock be in a position to work toward his rehabilitation. 

The trial court imposed a five-year prison term on each of the first two counts of his conviction. The court ordered those prison terms to run consecutively for a total of 10 years in prison. For the third count, Hitchcock was sentenced to a five-year community control term to run consecutively to the prison terms, with the judge reserving the right to require Hitchcock to serve an additional five years in prison should he violate the terms of his community control.

As part of the community control sanction, Hitchcock was to be assessed to determine if he should be placed in a community-based correctional facility (CBCF) after serving his two prison terms.

Hitchcock appealed the sentence, arguing the trial court had no authority to impose community control sanctions that followed his two prison terms. The Fifth District affirmed his conviction and sentence, but noted its decision was in conflict with other Ohio courts of appeals, which had ruled that a community control sanction could not follow a prison term.

Hitchcock appealed to the Supreme Court, which agreed to consider the conflict and Hitchcock’s sentence.

Court Considers Confinement Options
The Court’s lead opinion analyzes two key issues in Hitchcock’s appeal: whether he could be “assessed” to be sent to a CBCF after serving his prison sentence, and whether the court could impose any nonresidential community control sanctions to be served consecutively to his two prison terms.

Justice Fischer wrote that in State v. Paige, a 2018 decision, the Supreme Court determined that placing an offender in a CBCF is considered a “sentence of imprisonment.” Ohio’s sentencing laws do not allow a person to serve consecutively a prison term and community control sanction that includes a sentence of imprisonment in another facility. He noted today’s ruling extends that principle that if a person cannot be sentenced to a CBCF following a prison term, then a trial court has no right to have the person “assessed” for potential service in a CBCF.

Sentencing Options Examined
Justice Fischer explained that in 1995, Ohio lawmakers “fundamentally altered Ohio’s criminal sentencing system” by passing Senate Bill 2. The Court has since interpreted the reforms to mean that Ohio courts may impose only sentences authorized by statute.

Because Hitchcock committed third-degree felonies, under the state sentencing scheme, the trial court had the discretion to impose either a prison term or community control sanction for each of his three convictions.

Justice Fischer noted that Ohio law expressly states when a trial court can order prison sentences to be served consecutively, rather than concurrently. However, the Ohio Revised Code is silent on whether a community control sanction can be served consecutively to a prison sentence. The Court, wrote Justice Fischer, previously decided that a trial court can order a community control sanction to run concurrently with a prison sentence.

Justice Fischer explained that there is further proof that lawmakers did not intend, in general, to allow trial courts to run community control sanctions consecutively to prison sentences because the legislature specifically permits the practice for one kind of offense.

The lead opinion noted that in R.C. 2929.15(A)(1), the law requires a community control sanction to follow any prison time imposed on a person sentenced to prison for a third- or fourth-degree operating-a-vehicle-under-the-influence (OVI) conviction.

“Absent express statutory authorization for a trial court to impose the increased penalty of consecutive sentences, the trial court must follow the default rule of running the sentences concurrently,” Justice Fischer concluded.

The decision reversed the Fifth District’s judgment and remanded the case for resentencing consistent with the Court’s opinion.

Concurrence States Defendant Either Amenable to Community Control or Not
In his concurring opinion, Justice Donnelly wrote the court is “missing a golden opportunity to provide clear guidance to trial courts.” Justice Donnelly wrote the Supreme Court should indicate that trial judges should first decide whether a defendant is amenable to community control. It is Illogical for a court to conclude that a defendant is both amenable to community control and not amenable to community control, he wrote.

If an offender is suited for community control, then the trial court retains jurisdiction over the offender and gets to place an “array of restrictions” on the offender through the use of community control sanctions, the opinion stated.

When a trial court sentences an offender to prison, then the court has just determined the person is not amenable to community control. The offender’s eventual reentry into society is not directed by the trial court, but is governed by R.C. 2967.28 and the supervision is directed by the state adult parole authority, Justice Donnelly explained.

Justice Donnelly wrote that the trial court was attempting to protect the public, by retaining jurisdiction over Hitchcock at the conclusion of his 10-year prison sentence. However well-intentioned, that approach, of both the trial court and the state being responsible for overseeing the offender’s reentry into society, would create “an administrative quagmire.”

Multiple Sanctions Authorized Only for Individual Counts, Concurrence Asserted
In her concurring opinion, Justice Stewart wrote that R.C. 2929.13(A) allows a trial court to impose “any sanction or combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18 of the Revised Code,” but it does so only for each felony count.

Justice Stewart explained the law allows a combination of sanctions for each offense. That means a court can impose more than one penalty for each offense, such as a prison term and a fine. However, R.C. 2929.13(A) “says nothing about whether the judge may order sanctions imposed on one count to be served consecutively to a sanction imposed on another count.”

Because the law does not specifically authorize community control sanctions to run consecutively to a prison term, the court cannot impose it, she concluded.

Concurrence and Dissent States Law Clearly Gives Trial Courts Discretion
The plain terms of R.C. 2929.13(A) state that a trial court can impose any sanction or combination of sanctions, thus the trial court has the discretion to impose a prison term on one count and a community control sanction on another that will run after the offender serves his prison sentence, Justice DeWine stated in his concurring and dissenting opinion.

Justice DeWine maintained the lead opinion was incorrect in citing the specific penalty for an OVI conviction because that rule allows the court to impose both a prison term and a community control sanction for a single violation. In Hitchcock’s case he was given one penalty for each of three violations, and the judge imposed prison for two convictions and community control for the third conviction.

Justice DeWine noted that the majority opinions do not follow the state’s criminal sentencing goal of imposing the “minimum sanctions necessary” to achieve the goals of felony sentencing. Under the majority’s opinion, he noted, it would be perfectly okay for the judge to sentence Hitchcock to three five-year prison terms to be served consecutively, but not to replace one of those prison terms with a period of community control.

“There are certainly situations in which a trial judge after exercising his or her considered judgment might determine that rather than impose a lengthy prison term, a more modest prison term followed by community control would be appropriate. Such a period of supervision might be helpful to ensure that the offender continues to pursue substance-abuse or mental-health treatment, to maintain a stay-away order from the crime victim, to ensure that restitution is paid, or for a myriad of other reasons,” Justice DeWine wrote.

The concurring and dissenting opinion concludes the legislature created a statutory scheme that allows judges to impose the appropriate sentence for each offense and that directs judges to impose the minimum sanction necessary to protect the public.

“These seem like good rules — I don’t know why this court would choose to make up its own,” the concurring and dissenting opinion stated.

2018-0012. State v. Hitchcock, Slip Opinion No. 2019-Ohio-3246.

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