Community control sanctions prison term consecutively void. The imposition of community control sanctions to be served consecutive to a prison term was contrary to law, requiring the community control sanctions and the subsequently imposed prison sentence for a community control violation to be declared void and vacated.
Decided 2017-02-02
[Cite as State v. Slaughter,
2017-Ohio-387
.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104391
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GERALD L. SLAUGHTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART;
REVERSED IN PART
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-14-585090-A and CR-15-602216-A
BEFORE: E.T. Gallagher, P.J., S. Gallagher, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: February 2, 2017
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Gerald Slaughter (“Slaughter”), appeals his sentence
and raises the following three assignments of error:
1. In 2014, Mr. Slaughter was illegally placed on community control
sanctions for Count five in CR 585090; accordingly, he could not be
punished for a violation of those community control sanctions in 2016.
2. Mr. Slaughter could not be sentenced to 18 months imprisonment on
Count five in CR 585090 when the trial court never advised him that a
violation of community control sanctions could result in an 18 month
sentence.
3. Assuming arguendo that Mr. Slaughter could be placed on community
control sanctions in CR 585090, the jail time credit for CR 602216 was
required to be 261 days, not the 77 days credited.
{¶2} We find merit to the appeal affirm in part and reverse in part.
I. Facts and Procedural History
{¶3} In Cuyahoga C.P. No. CR-14-585090-A, Slaughter pleaded guilty to one
count of burglary, one count of domestic violence, and one count of menacing by
stalking. The court sentenced Slaughter to 12 months in prison on the burglary
conviction and 18 months in jail on the domestic violence conviction, to be served
concurrently with the 12-month prison term. The court also sentenced Slaughter to three
years of community control sanctions on the menacing by stalking conviction, to be
served consecutive to the two terms of incarceration on the other charges. The
sentencing entry provided that Slaughter could be sentenced to prison for 18 months if he
violated the terms of the community control sanctions.
{¶4} Slaughter later pleaded guilty to one count of failure to provide notice of
change of address in Cuyahoga C.P. No. CR-15-602216-A, and the court sentenced
Slaughter to nine months in prison in that case. The court also sentenced Slaughter to 18
months in prison for violating the terms of his community control sanctions in Case No.
CR-14-585090-A. He now appeals his 18-month prison sentence.
II. Law and Analysis
{¶5} In the first assignment of error, Slaughter argues he could not be sentenced to
18 months in prison for a community control violation because the court lacked authority
to sentence him to community control sanctions on his menacing by stalking conviction.
We agree.
{¶6} In State v. Anderson, 8th Dist. Cuyahoga No. 102427,
2016-Ohio-7044, ¶ 29
,
an en banc majority of this court recently held that a trial court lacks authority to impose
community control sanctions to be served consecutive to a prison term. The sentence in
this case is the same type of hybrid sentence Anderson addresses. Because the trial court
could not legally sentence Slaughter to community control sanctions to be served
consecutive to the prison terms on the burglary and domestic violence counts, the
community control sanctions portion of his sentence was void and must be vacated.
State v. Horner, 8th Dist. Cuyahoga No. 103719,
2016-Ohio-7608, ¶ 12
.
{¶7} The court erred in finding Slaughter in violation of community control
sanctions because the community control sanctions were unlawfully imposed. Therefore,
the first assignment of error is sustained.
{¶8} Having determined the imposition of community control sanctions was void,
the second and third assignments of error, which also challenge the validity of the
community control sanctions, are moot.
{¶9} The trial court’s judgment is affirmed in part and reversed in part. All of
Slaughter’s convictions as well as the sentences on his burglary and domestic violence
convictions in Case No. CR-14-585090-A are affirmed. The imposition of community
control sanctions on Slaughter’s menacing by stalking conviction and the 18-month
prison term imposed on the community control violation in CR-14-585090-A are hereby
reversed.
It is ordered that appellant recover from appellee 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 common
pleas 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 modification and execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
