[Cite as State v. Hitchcock,

.]

HITCHCOURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 16-CA-41 JEFFREY HITCHCOCK

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2016 CR 00275

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 19, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

R. KYLE WITT DARREN L. MEADE Fairfield County Prosecuting Attorney Parks and Meade, LLC 3010 Hayden Road By: JOSHUA S. HORACEK Columbus, Ohio 43235 Assistant Prosecuting Attorney 239 West Main Street, Suite 101 Lancaster, Ohio 43130 Fairfield County, Case No. 16-CA-41 2

Hoffman, P.J.

{¶1} Defendant-appellant Jeffrey Hitchcock appeals the judgment entered by the

Fairfield County Common Pleas Court convicting him of three counts of unlawful sexual

conduct with a minor (R.C. 2907.04(A),(B)(3)) following his plea of guilty and sentencing

him to two sixty-month terms of incarceration and one term of five years community

control, to be served consecutively. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant engaged in a sexual relationship with a girl in his neighborhood

who was twenty-six years younger than he. The victim would often babysit for Appellant’s

minor child. The sexual relationship began when the victim was thirteen years old and

continued until she was fifteen years old.

{¶3} When the victim was fifteen years of age, she delivered a still-born baby at

the Fairfield Medical Center. Although she had been unaware of her pregnancy until this

time, she identified Appellant as the father. Authorities performed DNA testing of the

baby, which matched Appellant’s DNA. When police searched for Appellant, they found

he had vacated his home across the street from the victim, taking his belongings with him.

Police found Appellant in Kentucky.

{¶4} Appellant admitted to engaging in sexual conduct with the victim, and

submitted to an additional DNA test which reaffirmed he was the father of the still-born

child.

{¶5} Appellant was indicted by the Fairfield County Grand Jury with four counts

of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A) and (B)(3), all Fairfield County, Case No. 16-CA-41 3

felonies of the third degree, and endangering children in violation of R.C. 2919.22(A), a

misdemeanor of the first degree.

{¶6} On September 20, 2016, Appellant pled guilty to three counts of unlawful

sexual conduct with a minor, and the remaining charges were dismissed. He was

sentenced to sixty months incarceration on Count One of the indictment, sixty months

incarceration on Count Two of the indictment, and five years community control on Count

Three of the indictment, with all sentences to be served consecutively. The community

control sentence included nonresidential sanctions as well as an evaluation for placement

in a Community Based Correction Facility (CBCF), with admission to be decided by the

court at a later date.

{¶7} Appellant prosecutes this appeal from the judgment of conviction and

sentence of the Fairfield County Common Pleas Court, assigning the following as error:

I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

A TERM OF COMMUNITY CONTROL CONSECUTIVE TO AN IMPOSED

TERM OF PRISON.

II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

THE MAXIMUM SENTENCES AND TO CONSECUTIVE TERMS OF

INCARCERATION WHEN THE SENTENCES ARE NOT SUPPORTED IN

THE RECORD.

I. Fairfield County, Case No. 16-CA-41 4

{¶8} In his first assignment of error, Appellant argues the court erred in

sentencing him to a term of community control consecutive to his prison terms. We

disagree.

{¶9} Appellant argues his sentence is not authorized by R.C. 2929.41:

(A) Except as provided in division (B) of this section, division (C) of

section 2929.14, or division (D) or (E) of section 2971.03 of the Revised

Code, a prison term, jail term, or sentence of imprisonment shall be served

concurrently with any other prison term, jail term, or sentence of

imprisonment imposed by a court of this state, another state, or the United

States. Except as provided in division (B)(3) of this section, a jail term or

sentence of imprisonment for misdemeanor shall be served concurrently

with a prison term or sentence of imprisonment for felony served in a state

or federal correctional institution.

(B)(1) A jail term or sentence of imprisonment for a misdemeanor

shall be served consecutively to any other prison term, jail term, or sentence

of imprisonment when the trial court specifies that it is to be served

consecutively or when it is imposed for a misdemeanor violation of section

2907.322, 2921.34, or 2923.131 of the Revised Code.

When consecutive sentences are imposed for misdemeanor under

this division, the term to be served is the aggregate of the consecutive terms

imposed, except that the aggregate term to be served shall not exceed

eighteen months. Fairfield County, Case No. 16-CA-41 5

(2) If a court of this state imposes a prison term upon the offender for

the commission of a felony and a court of another state or the United States

also has imposed a prison term upon the offender for the commission of a

felony, the court of this state may order that the offender serve the prison

term it imposes consecutively to any prison term imposed upon the offender

by the court of another state or the United States.

(3) A jail term or sentence of imprisonment imposed for a

misdemeanor violation of section 4510.11, 4510.14, 4510.16, 4510.21, or

4511.19 of the Revised Code shall be served consecutively to a prison term

that is imposed for a felony violation of section 2903.06, 2903.07, 2903.08,

or 4511.19 of the Revised Code or a felony violation of section 2903.04 of

the Revised Code involving the operation of a motor vehicle by the offender

and that is served in a state correctional institution when the trial court

specifies that it is to be served consecutively.

When consecutive jail terms or sentences of imprisonment and

prison terms are imposed for one or more misdemeanors and one or more

felonies under this division, the term to be served is the aggregate of the

consecutive terms imposed, and the offender shall serve all terms imposed

for a felony before serving any term imposed for a misdemeanor.

{¶10} In State v. Kinder, 5th Dist. Delaware No. 03CAA12075,

,

the defendant was sentenced to four years in prison for reckless homicide and a term of

community control not to exceed five years for complicity to possession to drugs, with the Fairfield County, Case No. 16-CA-41 6

term of community control commencing upon the completion of the prison sentence. He

argued the court erred in ordering consecutive sentences, and specifically erred in failing

to make the requisite findings according to R.C. 2929.14(E). In addressing his claim of

error, we cited to R.C. 2929.13(A), which provides unless a specific sanction is required

to be imposed or is precluded from being imposed pursuant to law, a court may impose

any sanction or combination of sanctions provided in R.C. 2929.14 to 2929.18. Therefore,

we concluded the court “has discretion to find community control sanctions appropriate

for one offense, while finding a prison term appropriate for a separate offense, and order

those sentences be served consecutively.” Kinder at ¶31. Turning to Kinder’s specific

claim of error, we concluded community control sanctions did not render him imprisoned

within the meaning of R.C. 1.05, and the trial court was therefore not required to set forth

findings for consecutive sentences. Id. at ¶34.

{¶11} Subsequently in State v. O’Connor, 5th Dist. Delaware No. 04CAA04-028,

, the appellant claimed error in sentencing him to community control in

one case and imposing maximum sentences in another case, and ordering them to be

served consecutively. Relying on R.C. 2929.13(A) and our decision in Kinder, we rejected

O’Connor’s argument and affirmed the sentences. Id. at ¶¶27-30. Likewise, in State v.

Boylen, 5th Dist. Tuscarawas 2012AP060039,

, we concluded although

the trial court did not specifically use the word “consecutive” in serving a community

control sanction to an unrelated term of imprisonment already being served, in placing

Boylen on community control “upon his release from incarceration on another matter,” the

sentence was clearly consecutive, and did not exceed the five year limitation of R.C.

2929.15. Id. at ¶¶10-11, citing

and O’Connor, supra. Fairfield County, Case No. 16-CA-41 7

{¶12} After this Court’s decisions in the above-cited cases, the Ohio Supreme

Court held in State v. Anderson,

,

,

, a

trial court may not impose a community control sanction in the form of a no-contact order

and a prison sentence on the same felony count. In so holding, the court held because

sentencing is a creature of the legislature, courts are limited to imposing sentences that

are authorized by statute, rather only being limited to sentences that are not prohibited

by statute. Id. at ¶13, citing Wilson v. State,

(Indiana 2014).

{¶13} Following the Supreme Court’s decision in Anderson, the Eighth District

sitting en banc addressed the issue raised in the instant case in State v. Anderson,

,

(8th Dist. Cuyahoga).1 Relying on the Ohio Supreme

Court’s language concerning a court’s limitation to sentences authorized by statute as

opposed to having discretion to impose a sentence not prohibited by statute, the court

concluded the Ohio Revised Code provides no authority to impose a prison sentence

consecutively to a community control sanction, whether such community control sanction

is residential or non-residential. Id. at ¶¶16-19. In the absence of express statutory

authority for consecutive sentences of prison and community control, the court vacated

the community control sanction and remanded for resentencing.

{¶14} The Eighth District specifically rejected the reasoning of this Court in Kinder,

as well as its own prior precedent and decisions of the Fourth, Sixth, and Twelfth Districts,

finding the rationale in those cases relied on the proposition the legislature had not

prohibited the imposition of consecutive community control sanctions, and such rationale

1 Although both appeals are prosecuted by an appellant with the surname “Anderson,” the Eighth District case is not the same appellant as the Ohio Supreme Court decision. Fairfield County, Case No. 16-CA-41 8

was rejected by the Supreme Court in Anderson, supra. Id. at ¶21. The majority further

rejected our rationale in Kinder concerning the discretion given courts pursuant to R.C.

2929.13(A), finding the Ohio Supreme Court rejected similar language in R.C. 2929.16

as rationale for the imposition of consecutive jail sentences in State v. Barnhouse,

,

,

.

{¶15} In a dissent joined by four other members of the Eighth District en banc

panel, Judge Boyle concluded a trial court has discretion and authority to impose a prison

term on one felony offense and community control on a separate offense, and order the

community control sanctions commence upon the offender’s release from prison. The

dissent noted the trial court was attempting to punish Anderson for his conduct and protect

the public, while at the same time rehabilitate a 22-year-old offender so he could become

a more productive and law-abiding citizen after he served his sentence. However, the

majority’s decision essentially removed the court’s discretion which is counterintuitive and

against the purposes and principles of felony sentencing under R.C. 2929.11. Id. at ¶38.

The majority decision eliminated a trial court’s discretion to impose community control

sanctions on a separate felony count but would leave intact the court’s authority to impose

a prison term on that count to be served consecutively to the other felony counts, which

directly contravenes the General Assembly’s directive that trial courts use “the minimum

sanctions necessary” to accomplish the principles and purposes of felony sentencing. Id.

at ¶48.

{¶16} The dissent further disagreed with the majority concerning the application

of R.C. 2929.13(A), concluding Barnhouse is limited to prohibiting trial courts from

imposing consecutive jail sentences. Id. at ¶45. The dissenting opinion concluded the Fairfield County, Case No. 16-CA-41 9

Ohio Supreme Court’s decision in Anderson is not applicable to the instant issue, and the

en banc majority applied the dicta in that opinion too broadly. Id. at ¶46.

{¶17} Finally, the dissent noted the language ordering the community control

sanction to be served consecutively to the prison term is superfluous:

Moreover, it is axiomatic that an offender cannot serve a sentence of

community control sanctions while in prison. Thus, community control

sanctions must begin when an offender is released from prison. Because of

this, it is my view that a trial court need not even use the words “consecutive”

or “concurrent” when sentencing an offender to prison on one felony offense

and community control sanctions on a separate felony offense because

community control sanctions cannot commence until the offender is

released from prison.

Id. at ¶49.

{¶18} The Twelfth District revisited its prior precedent subsequent to the Eighth

District’s decision in Anderson and agreed with the majority decision of the Eighth District.

State v. Ervin, 12th Dist. Butler No. CA2016-04-079,

. However, we are

persuaded by the rational of the dissenting opinion in Anderson.

{¶19} R.C. 2929.13(A) provides in pertinent part:

Except as provided in division (E), (F), or (G) of this section and

unless a specific sanction is required to be imposed or is precluded from Fairfield County, Case No. 16-CA-41 10

being imposed pursuant to law, a court that imposes a sentence upon an

offender for a felony may impose any sanction or combination of sanctions

on the offender that are provided in sections 2929.14 to 2929.18 of the

Revised Code.2

{¶20} We agree with the dissenting opinion in Anderson concerning the majority’s

overbroad application of Barnhouse in rejecting R.C. 2929.13(A) as support for the trial

court’s sentence in the instant case. Barnhouse specifically held, “Rather, our decision

only addresses the narrow question of whether the trial court may impose consecutive jail

sentences under R.C. 2929.16(A)(2).”

. Further, R.C. 2929.11(A)

states:

A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony

sentencing are to protect the public from future crime by the offender and

others and to punish the offender using the minimum sanctions that the

court determines accomplish those purposes without imposing an

unnecessary burden on state or local government resources. To achieve

those purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future

crime, rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.

2 This language is maintained in the new version of the statute, eff. 10/17/17. Fairfield County, Case No. 16-CA-41 11

{¶21} Under the Eighth District’s decision, the trial court in the instant case could

have sentenced Appellant to three sixty-month terms of imprisonment, to be served

consecutively, but could not sentence Appellant to two sixty-month terms of imprisonment

to be served consecutively, and a term of community control, to commence upon his

release from prison. Such a result flies in the face of the directive in R.C. 2929.11(A) to

use the minimum sanctions the court determines necessary to accomplish the purposes

of felony sentencing, without imposing an unnecessary burden on state or local

government resources.

{¶22} We further agree the language “consecutive” or “concurrent” is superfluous

when ordering a community control sanction for one offense and a prison sentence for

another offense, as the offender cannot begin to serve the community control sanction

until his or her release from prison. Therefore, the sentence of community control in the

instant case does not implicate the consecutive sentencing directives found in R.C.

2929.14(C)(4), which apply when “multiple prison terms are imposed on an offender.”

See also

.

{¶23} The first assignment of error is overruled.

II.

{¶24} In his second assignment of error, Appellant argues the record does not

support the court’s order of maximum and consecutive sentences.

{¶25} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum,

,

,

, ¶ 22; Fairfield County, Case No. 16-CA-41 12

State v. Howell, 5th Dist. Stark No. 2015CA00004,

,

,

¶ 31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a

sentence and remand for resentencing where we clearly and convincingly find either the

record does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. An

appellate court may vacate or modify any sentence that is not clearly and convincingly

contrary to law only if the appellate court finds by clear and convincing evidence the

record does not support the sentence.

.

{¶26} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford,

,

(1954), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Id. at 477,

.

{¶27} R.C. 2929.11(A) governs the purposes and principles of felony sentencing

and provides a sentence imposed for a felony shall be reasonably calculated to achieve

the two overriding purposes of felony sentencing, which are (1) to protect the public from

future crime by the offender and others, and (2) to punish the offender using the minimum

sanctions that the court determines will accomplish those purposes. Further, the sentence

imposed shall be “commensurate with and not demeaning to the seriousness of the

offender's conduct and its impact on the victim, and consistent with sentences imposed

for similar crimes by similar offenders.” R.C. 2929.11(B). Fairfield County, Case No. 16-CA-41 13

{¶28} R.C. 2929.12 sets forth the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a

non-exhaustive list of factors a trial court must consider when determining the

seriousness of the offense and the likelihood that the offender will commit future offenses.

{¶29} While Appellant concedes the court stated it considered the principles and

purposes of felony sentencing and other relevant factors under R.C. 2929.11 and R.C.

2929.12, he argues the record does not support the court’s sentence. He argues he

exhibited genuine remorse and concern for the victim, and had not been convicted of a

felony in over a decade.

{¶30} In sentencing Appellant, the trial court noted from the bench the situation

was aggravated by the victim’s pregnancy. Tr. 41. The court recognized Appellant was

not at fault for the death of the child at birth, but noted the consequences to the victim

would be longstanding and more significant than in the normal case of this type. Tr. 42.

The court further noted this was not an isolated act in which Appellant lost control and

impulsively engaged in sexual conduct with the victim, as the sexual conduct occurred on

multiple occasions over a significant period of time. Tr. 42. The court believed had

Appellant stopped engaging in sex with the victim on his own, or as a result of seeking

counseling, his behavior would have shown a significant amount of remorse, beyond what

the record reflected. Tr. 42-43.

{¶31} The court further placed great weight on Appellant’s prior record of multiple

felony convictions and his prior time served in a state penal institution. Tr. 43-44. The Fairfield County, Case No. 16-CA-41 14

court noted Appellant had previously been on community control at both the misdemeanor

and felony level, and his community control was revoked. Tr. 44.

{¶32} Based on the specific factors set forth by the trial court, we find the sentence

is supported by the record. As noted by the court, Appellant had a history of prior

convictions, both felonies and misdemeanors. The trial court was in a better position than

this Court to assess the genuineness of Appellant’s remorse, and appears to have

concluded Appellant showed remorse only after the relationship was discovered by the

authorities. This was not a single act, but rather a sexual relationship Appellant undertook

with a neighborhood teenager over a period of two years. Further, the victim would

undergo significant trauma from the relationship ending in a pregnancy and subsequent

stillbirth of the baby.

{¶33} Appellant also argues the court erred in sentencing him consecutively.

Appellant concedes the trial court made the requisite findings to support consecutive

sentences, but again argues the record does not support such findings.

{¶34} R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences as

follows:

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness Fairfield County, Case No. 16-CA-41 15

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶35} The trial court found consecutive sentences are necessary to protect the

public from future crime on his part and to punish Appellant, and were not disproportionate

to the seriousness of his conduct and the danger he posed to the public. The court further

found Appellant committed the offenses as part of several courses of conduct, and the

harm caused was so significant that no single prison term adequately reflected the

seriousness of his conduct. The court found Appellant’s history demonstrated

consecutive sentences are necessary to protect the public form future crime. Tr. 48-49;

Judgment Entry, September 26, 2016, p.5-6. Fairfield County, Case No. 16-CA-41 16

{¶36} The court’s findings are supported by the record. As discussed above,

Appellant had a history of both felony and criminal convictions. He previously had

community control revoked. He did not stop the relationship on his own or seek

counseling, but rather continued until the victim’s delivery of the baby brought his conduct

to light. The harm caused to the victim by the longstanding relationship and the stillbirth

of the baby was significant. We find the trial court did not err in imposing consecutive

sentences.

{¶37} The second assignment of error is overruled.

{¶38} The judgment of the Fairfield County Common Pleas Court is affirmed.

By: Hoffman, P.J.

Baldwin, J. and

Wise, Earle, J. concur