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Notes From the Mulligan Bench*

(*An appellate blog and other musings)

Click on a blog title below to access the post. 

Legend: ALR = Appellate Law Related; GLR = General Law Related; NLR = Not Law Related.

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Yeah, About Those Blended Sentences ... (GLR; ALR)

Last week, the Twelfth District Court of Appeals released its opinion in State v. Ervin, 12th Dist. Butler No. CA2016-04-079, 2017-Ohio-1491.  The defendant in Ervin was convicted of complicity to felonious assault with a firearm.  The central issue in the appeal was whether the trial court exceeded its authority by imposing a “blended” sentence.  The sentence consisted of a mandatory three-year prison term on the gun specification followed by a consecutive, five-year term of community control on the felonious assault charges.  For my non-attorney readers, learn what community control is by clicking here.

Credit: Stephen Vanhorn |

Credit: Stephen Vanhorn |

So can a trial court lawfully send a convicted defendant to prison and then require them to serve community control after finishing the prison term?  In answering this query, the Twelfth District turned to an infrequent bedfellow: Cleveland's Eighth District Court of Appeals.  In State v. Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044, the Eighth District reasoned that all sentencing decisions must be premised upon a specific grant of legislative authority.  The Twelfth District agreed with this premise and held that trial courts do not have the authority to impose blended sentences because – alas – no statute exists which grants trial courts the authority to do so.

The Ohio Statehouse.  Home to the Ohio General Assembly.

The Ohio Statehouse.  Home to the Ohio General Assembly.

In the past, courts have sometimes reasoned that authority to impose certain sentences was implicitly allowed where the Ohio legislature had not expressly prohibited the action.  But the Ervin court reasoned, “the relevant inquiry is whether the trial court is expressly authorized by statute to impose the sentence, as opposed to whether the sentence is expressly prohibited by statute.”  Ervin at ¶17.  Because the sentence imposed by the trial court in Ervin was not expressly authorized by any statute, the Twelfth District held that Ms. Ervin’s community control sanctions were void.  Accordingly, the appeals court sent the case back to the trial court with instructions to vacate Ms. Ervin's community control and resentence her on the complicity charges. 

Yay, you made it to the end of an academic post!  That means I'm doing something right.  ;-) Thanks for reading.

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