[Cite as State v. Peterson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102428

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEANE PETERSON

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-586279-A

BEFORE: Boyle, J., Celebrezze, A.J., and Blackmon, J.

RELEASED AND JOURNALIZED: November 5, 2015 ATTORNEY FOR APPELLANT

Thomas A. Rein 700 W. St. Clair Avenue Suite 212 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Lon’Cherie’ D. Billingsley Brett Hammond Assistant County Prosecutors 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:

{¶1} Defendant-appellant, Deane Peterson, appeals his sentence, raising the

following single assignment of error:

The trial court erred by ordering appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and H.B. 86.

{¶2} Finding no merit to the appeal, we affirm but remand for correction.

Procedural History and Facts

{¶3} In November 2014, Peterson pleaded guilty to an amended indictment on a

single count of robbery, a violation of R.C. 2911.02(A)(3), a third-degree felony.

Peterson further agreed to pay restitution to the victim in the amount of $800. One

month later, the trial court held the sentencing hearing, following its referral of Peterson

for a presentence investigation report.

{¶4} After hearing from the prosecutor, defense counsel, and Peterson, the trial

court ultimately concluded that Peterson should be afforded the opportunity to get help

for his drug problem. Instead of imposing a prison term, the trial court imposed two

years of community control sanctions, sentencing Peterson to 180 days in local

incarceration with five days jail-time credit followed by six months in a community-based

correctional facility. The trial court further informed Peterson that if he violated the

terms and conditions of his community control, which included among other things

random drug tests, the trial court may impose more restrictive sanctions. {¶5} From this order, Peterson appeals, challenging his confinement in the local

jail and a community-based correctional facility for a combined period of one year.1

Application of R.C. 2929.14(C)(4) to Imposition of Community Control Sanctions

{¶6} In his sole assignment of error, Peterson argues that the trial court lacked

the authority to order him to serve consecutive time when it failed to comply with R.C.

2929.14(C)(4). Although Peterson acknowledges that the trial court did not impose a

“prison” sentence, he nonetheless contends that the trial court lacked authority to impose

six months jail time followed by six months in a community-based correctional facility

without making the required findings for a consecutive sentence under R.C.

2929.14(C)(4). This argument, however, has no merit.

{¶7} R.C. 2929.14(C)(4) authorizes a trial court to order multiple prison terms to

be served consecutively if the trial court makes certain findings enumerated in the statute.

If a trial court fails to make the required findings under R.C. 2929.14(C)(4) to support

the imposition of consecutive sentences, the sentence is contrary to law and cannot stand.

Beachwood v. Chatmon, 8th Dist. Cuyahoga Nos. 101767 and 101768,

, citing State v. Bonnell,

,

,

,

syllabus. But this statute has no application in the current case. The statute applies

only to consecutive “prison terms” for convictions of “multiple offenses.” See State v.

According to the docket, Peterson has subsequently been found to have violated the terms of 1

his community control and has been sentenced to 18 months in prison. That case has been separately appealed and is currently pending. Barnhouse,

,

,

. Peterson was not

sentenced to a prison term nor was he convicted of multiple offenses. See State v.

Friesel,

,

,

(6th Dist.), citing

State v. Cook, 8th Dist. Cuyahoga No. 77101, 2000 App. LEXIS 5712 (Dec. 7, 2000)

(recognizing that “[s]erving time in a local ‘jail’ as part of community control sanctions is

not the same as a prison sentence”).

{¶8} Peterson cites to this court’s decision in State v. Purvis, 8th Dist. Cuyahoga

No. 101608,

, in support of his claim that the trial court had to make

findings under R.C. 2929.14(C). We find Purvis distinguishable because it dealt with

multiple counts.

{¶9} Accordingly, we find no merit to Peterson’s claim that the trial court had to

make findings under R.C. 2929.14(C) prior to imposing the underlying sentence.

Application of Barnhouse and Anderson

{¶10} Peterson further argues that the Ohio Supreme Court’s decisions in State v.

Barnhouse,

,

,

, and State v.

Anderson,

,

,

, support his claim that

the imposition of six months in jail, followed by six months in a community-based

correctional facility, are not authorized under the law. Specifically, he argues that both

are terms of imprisonment and are subject to the general rule that “a sentence of

imprisonment shall be served concurrently with any other * * * sentence of

imprisonment.” R.C. 2929.41(A). {¶11} We find no basis to conclude that the trial court’s sentence in this case is

unlawful according to the principles explained in Barnhouse or Anderson.

{¶12} In Barnhouse, the defendant pleaded guilty to two counts of nonsupport of a

dependent. In July 1999, the trial court imposed a one-year suspended prison term and

“up to five years of community control.” Id. at ¶ 2. One year later, the defendant was

indicted on numerous counts of nonsupport of dependents and ultimately pleaded no

contest to two counts. Upon finding defendant guilty of the two violations, the trial

court again imposed a sentence of “up to five years of community control.” Id. at ¶ 3.

Thereafter, the defendant violated multiple conditions of his community control and the

trial court subsequently sentenced him to serve two six-month jail terms pursuant to R.C.

2929.16(A) and ordered them consecutive. The defendant appealed, and the issue

before the Ohio Supreme Court was whether a trial court may impose consecutive jail

sentences under R.C. 2929.16(A). Id. at ¶ 8.

{¶13} The Ohio Supreme Court ultimately concluded that the trial court lacked the

authority to order the jail sentences consecutive because the presumption of concurrent

sentences as stated in R.C. 2929.41 governed. Id. at ¶ 18. Specifically, the court found

that none of the exceptions to concurrent sentences as stated in R.C. 2929.41(A) applied,

which would warrant the imposition of consecutive sentences. Id.

{¶14} We find Barnhouse,

,

,

,

distinguishable from the instant case for a simple reason: this case involves a singular

sentence — not multiple sentences. The presumption of concurrent sentences contained in R.C. 2929.41(A) applies when a trial court is imposing “multiple sentences.” This

case does not involve the imposition of multiple sentences on multiple counts. Instead,

the trial court sentenced Peterson to two years community control sanctions on a single

count.

{¶15} A “community control sanction” is defined by R.C. 2929.01(E) as a sanction

that is not a prison term and is described in R.C. 2929.15 (community control), 2929.16

(residential sanctions), 2929.17 (nonresidential sanctions), and 2929.18 (financial

sanctions). State v. Farner, 5th Dist. Ashland No. 2011-COA-025,

. R.C. 2929.15(A) provides as follows in relevant part:

If in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code.

{¶16} Under R.C. 2929.16 (residential sanctions), “the court imposing a sentence

for a felony upon an offender who is not required to serve a mandatory prison term may

impose any community residential sanction or combination of community residential

sanctions under this section.” (Emphasis added.) Specifically, R.C. 2929.16 authorizes

the trial court to impose a term of up to six months at a community-based correctional

facility that serves the county and a term of up to six months in jail. R.C. 2929.16(A)(1),

(2). Under the plain language of R.C. 2929.16, the trial court was expressly authorized

to impose six months in jail, followed by six months in a community-based correctional facility. Because this case does not involve multiple sentences being served

consecutively, Barnhouse is distinguishable.

{¶17} In this case, the crucial issue is not whether a jail sentence or a sentence to a

community-based correctional facility is a sentence of imprisonment. According to

Barnhouse,

,

,

, and its reliance of

R.C. 1.05(A), they are. But the need to define “imprisonment” in Barnhouse arose only

because the court was determining whether the presumption of concurrent sentences

applied as stated in R.C. 2929.41. Again, this statute only applies when a court is

imposing multiple sentences. This case falls outside of the Barnhouse holding but

squarely under R.C. 2929.15 and 2929.16. And given that these statutes expressly

authorize a trial court to impose a combination of community controlled sanctions, which

includes up to six months in jail and up to six months in a community-based correctional

facility for the same offense, we find that the sentence is not contrary to law.

{¶18} For the same reason, we find no basis to conclude that Anderson,

,

,

, supports Peterson’s claim that the sentence

cannot stand. In Anderson, the Ohio Supreme Court reiterated the longstanding rule that

“‘the only sentence which a trial judge may impose is that provided for by statute * * *.’”

Id. at ¶ 12, quoting State v. Beasley,

,

(1984),

quoting Colegrove v. Burns,

, 438,

(1964). As to the

ultimate issue of whether a trial court could impose both a prison term and a community

controlled sanction for the same offense, the court held that, “absent an express exception, the court must impose either a prison term or a community-control sanction or

sanctions.” Id. at ¶ 31.

{¶19} Having already found that the sentence imposed is expressly authorized by

statute, we find that the trial court’s actions in this case is consistent with the holding in

Anderson,

,

,

.

{¶20} Accordingly, we find no merit to Peterson’s sole assignment of error and

overrule it.

{¶21} We note, however, that the journal entry fails to specify Peterson’s term at

the community-based correctional facility, despite the trial court stating so at sentencing

in accordance with R.C. 2929.16(A)(1). Therefore, we remand the matter for the limited

purpose of issuing a nunc pro tunc entry to correct the sentence in accordance with R.C.

2929.16(A)(1). State v. Moore, 8th Dist. Cuyahoga No. 102242,

,

citing State v. Lester,

,

,

.

{¶22} Judgment affirmed and case remanded to the lower court for further

proceedings consistent with this opinion.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution. The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and PATRICIA ANN BLACKMON, J., CONCUR