[Cite as State v. Hatcher, 2017-Ohio-109.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104780




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               MICHAEL D. HATCHER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              VACATED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-595831-A

        BEFORE: E.A. Gallagher, P.J., Boyle, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: January 12, 2017
ATTORNEY FOR APPELLANT

Michael D. Hatcher, pro se
Inmate No. #673-709
Lake Erie Correctional Institution
501 Thompson Road
Conneaut, Ohio 44030


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Michael Hatcher appeals the denial of two motions to

vacate a void sentence in the Cuyahoga County Court of Common Pleas.                      For the

following reasons, we vacate.

       Factual and Procedural Background

       {¶2} On September 15, 2015, Hatcher plead guilty to grand theft.            At sentencing,

the trial court imposed one year of community control sanctions including an indefinite

term of confinement in either a community-based correctional facility (“CBCF”) or the

county jail. The sentence included the following proviso:

       This sentence is to begin upon his release from Lorain Correctional
       Institution in the Lake County Case: 15-CR-000206. Defendant is to be
       assessed for CBCF upon his release from Lorain Correctional Institution.
       The one year supervision does not begin until he is returned from Lorain
       Correctional Institution to begin this sentence.

       {¶3} On April 22, 2016, Hatcher filed a motion to withdraw his guilty plea and/or

vacate a void sentence, arguing that the trial court failed to make the required findings

under R.C. 2929.14(C)(4) for the imposition of consecutive sentences.1 The trial court

denied the motion finding that R.C. 2929.14(C)(4) was inapplicable to a sentence of

community control sanctions.          The trial court further denied having imposed a

consecutive sentence despite the plain language above.




        This appeal concerns only Hatcher’s challenge to a void sentence.   The denial of Hatcher’s
       1


motion to withdraw his guilty plea is not before this court.
       {¶4} On May 24, 2016, Hatcher filed a renewed motion to vacate his sentence

pursuant to this court’s decision in State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229

(8th Dist.).   The trial court again denied the motion finding Anderson inapplicable

because “[t]he court did not order that the sentence be served concurrently or

consecutively but it did order that the sentence be served.”        The trial court then

contradicted the above-quoted provision from its original sentencing entry and found that

Hatcher had failed to appear before the court’s probation department as ordered and

issued a warrant for his arrest.

       {¶5} This court granted a motion for a delayed appeal challenging the denial of the

above motions.

       Law and Analysis

       I. The Imposition of Community Control Sanctions Consecutive to a Prison
       Term

       {¶6} In his sole assignment of error, Hatcher argues that trial court erred in

imposing community control sanctions to be served consecutively to a prison term.

       {¶7} In Anderson, this en banc court held that “[b]ecause there is no statutory

authority for the imposition of community control sanctions to be served consecutive to,

or following the completion of, a prison or jail term or other sentence of imprisonment,

the trial court was without authority to impose the same.” Id. at ¶ 31.        This court

concluded that such a sentence was void. Id. at ¶ 31.

       {¶8} By the plain language of the trial court’s sentencing entry quoted above the

trial court attempted to order community control sanctions to be served consecutive to, or
following the completion of, a prison term. The reasoning behind Anderson provides no

exception that would authorize a consecutive community control sentence where the

prison term it is to follow was imposed in another county. We do not find any merit in

the state’s argument that the trial court merely held the community control sanction

sentence “in abeyance” until Hatcher was released from prison.           Such an interpretation

would eviscerate the rule of Anderson.

       {¶9} Although the state argues that Hatcher’s argument is preclued by the doctrine

of res judicata, it is well established that a void sentence “is not precluded from appellate

review by principles of res judicata, and may be reviewed at any time, on direct appeal or

collateral attack.” State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d
332, paragraph one of the syllabus.

       {¶10} We find Hatcher’s sentence to be void.2

       {¶11} Hatcher’s sole assignment of error is sustained.

       {¶12} Hatcher’s sentence is vacated.

       This cause is vacated and remanded to the trial court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.


        We also note that the trial court’s sentencing entry includes indefinite terms of jail and
       2


CBCF sanctions in violation of R.C. 2929.16(A). See, e.g., State v. Abernathy, 8th Dist.
Cuyahoga No. 102716, 2015-Ohio-4769, fn. 2; State v. Moore, 8th Dist. Cuyahoga No. 102242,
2015-Ohio-3233, ¶ 8.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., CONCURS;
MARY J. BOYLE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)


MARY J. BOYLE, J., DISSENTING WITH SEPARATE OPINION

       {¶13} Respectfully, I dissent and would affirm the trial court.

       {¶14} R.C. 2951.07 supports the notion that a community control sanction

(“CCS”) is to be served after a prison by operation of law.     It states, “if the offender is

confined in any institution for the commission of any offense, the period of community

control ceases to run until the time the offender is brought before the court for its further

action.” I disagree with the majority that the trial court imposed a consecutive sentence;

R.C. 2929.14(C)(4) therefore is inapplicable in this case.   Instead, the trial court properly

ordered that the CCS be served in accordance with the express terms of R.C. 2951.07