[Cite as State v. Trimble,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 20CA1126

vs. :

STEPHEN L. TRIMBLE, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Miranda D. Holbrook, Cincinnati, Ohio for appellant.

David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Assistant Adams County Prosecuting Attorney, West Union, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:7-28-21 ABELE, J.

{¶1} This is an appeal from an Adams County Common Pleas Court

judgment of conviction and sentence. After Stephen Trimble,

defendant below and appellant herein, entered a guilty plea, the

trial court found him guilty of rape and importuning. As part of

appellant’s sentence, the court further ordered him to have no

contact with the underage crime victims.

{¶2} Appellant now assigns one error for review:

“THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. TRIMBLE BY SENTENCING HIM TO PRISON FOR A TERM OF INCARCERATION, AND ISSUING A NO-CONTACT ORDER.” ADAMS, 20CA1126

2

{¶3} On September 2, 2020, an Adams County Grand Jury returned

an indictment that charged appellant with (1) rape of a minor less

than 13 years of age in violation of R.C. 2907.02(A)(1)(b), (2)

gross sexual imposition in violation of R.C. 2907.05(A)(1)(4), and

(3) importuning in violation of R.C. 2907.07(B)(1)(a). Appellant

entered not guilty pleas.

{¶4} Subsequently, appellant pleaded guilty to rape in

violation of R.C. 2907.02(A)(2) and importuning in violation of

R.C. 2907.07(B)(1)(a). The trial court recited the parties’ agreed

disposition that appellant serve an 11-month prison term for

importuning and a 10-year prison term for rape, to be served

consecutively. The court also notified appellant of the mandatory

five-year postrelease control term, consequences of a postrelease

control violation, and the duty to register as a Tier III sex

offender. The court further ordered appellant to pay a $1,250 fine

and court costs. Finally, the court issued a no-contact order.

This appeal followed.

{¶5} In his sole assignment of error, appellant asserts the

trial court erred by imposing both a prison term and a no-contact

order for the same offense. Appellant argues that, pursuant to

State v. Anderson,

,

,

, a trial court may not impose both a term of imprisonment and a ADAMS, 20CA1126

3 no-contact order for the same offense. The state acknowledges

Anderson’s application, but argues that Anderson does not fully

contemplate or grasp the reality of inmates who now have the

ability from prison to electronically contact crime victims. Thus,

the state urges this court to uphold the trial court’s judgment.

{¶6} When reviewing felony sentences, appellate courts apply

the standard of review outlined in R.C. 2953.08(G)(2). State v.

Prater, 4th Dist. Adams No. 18CA1069,

, at ¶ 12,

citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-

1277, at ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate court's

standard for review is not whether the sentencing court abused its

discretion.” Instead, R.C. 2953.08(G)(2) specifies that an

appellate court may increase, reduce, modify, or vacate and remand

a challenged felony sentence if the court clearly and convincingly

finds either:

(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶7} A defendant bears the burden to establish, by clear and

convincing evidence, that a sentence is either contrary to law or

not supported by the record. State v. Behrle, 4th Dist. Adams No.

20CA1110,

; State v. Shankland, 4th Dist. ADAMS, 20CA1126

4 Washington Nos. 18CA11, 18CA12,

, ¶ 20. “[C]lear and

convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the

extent of such certainty as is required ‘beyond a reasonable doubt’

in criminal cases, and which will produce 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.

{¶8} In State v. Anderson,

,

,

the Supreme Court of Ohio addressed the issue appellant raises in

the case at bar. In Anderson, the trial court imposed both prison

terms and a no-contact order. The supreme court explained that a

trial court may only impose a sentence provided for by statute,

that “Ohio courts have recognized that a no-contact order is a

community-control sanction,” and the felony-sentencing statutes

“reflect that the General Assembly intended prison terms and

community-control sanctions to be alternative sanctions” for a

felony offense. Id. at ¶ 12, 17, 28; State v. Conant, 4th Dist.

Adams No. 20CA1108,

. Thus, Anderson 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. Therefore, ADAMS, 20CA1126

5 “[a] trial court cannot impose a prison term and a no-contact order

for the same felony offense.” Id. at ¶ 1.

{¶9} The members of this court certainly acknowledge the trial

court’s frustration, and the state’s well-founded concern, that

advances in technology now permit even imprisoned defendants to

contact their victims in new ways, including electronic

communications. In fact, we share that concern. Here, the trial

court pointed out that the Ohio Department of Rehabilitation and

Correction issues electronic tablets to certain inmates through

which they could attempt to contact victims. However, as we

concluded in Conant, Behrle, and State v. Jordan, 4th Dist. Adams

No. 19CA1105,

, imposing a no-contact order in

addition to a prison term is contrary to law. “Trial courts and

intermediate courts of appeals are bound by and must follow

decisions of the Ohio Supreme Court.” State v. Cox, 4th Dist.

Adams No. 02CA751,

, ¶ 12.

1 The Ohio Supreme Court initially accepted jurisdiction in State v. Jordan over the proposition of law: “A recent Amendment to Ohio’s Constitution guarantees victims the right to privacy and protection from the accused. Those new Constitutional rights require this Court to reverse its holding in Anderson and allow a trial court to impose a prison sentence and a no-contact order simultaneously.” See State v. Jordan,

, 2020- Ohio-5332,

. Specifically, the jurisdictional memoranda cited the Marsy’s Law Amendment to the Ohio Constitution, which includes “reasonable protection from the accused.” The court, however, later vacated its earlier decision and declined jurisdiction. See State v. Jordan,

, 2020-Ohio- 6985,

. ADAMS, 20CA1126

6 {¶10} Consequently, pursuant to

we agree with

appellant that in the case sub judice the trial court lacked the

authority to impose both a prison term and community-control

sanction for the same felony offense, unless an express exception

applies. No such exception, however, has been identified.

{¶11} Therefore, we sustain appellant’s assignment of error,

vacate the no-contact order, and remand this matter to correct the

sentencing entry and remove reference to that order. However,

because this court shares the trial court’s concerns about the

legitimate need for no-contact orders in conjunction with prison

sentences, we welcome further review in this matter and encourage

legislative action to address this situation.

{¶12} Accordingly, appellant’s sentence is affirmed in part,

reversed and vacated in part, and remanded for further proceedings

consistent with this opinion.

JUDGMENT AFFIRMED IN PART, REVERSED AND VACATED IN PART, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ADAMS, 20CA1126

7

JUDGMENT ENTRY

It is ordered that the judgment be affirmed in part, reversed and vacated in part, and remanded for further proceedings consistent with this opinion. Appellant shall recover of appellee the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:___________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.