State v. Vlad

*76 Waite, Presiding Judge. ¶ 1 This timely appeal arises out of the conviction and sentence of appellant, Eugene C. Vlad Jr., in the Carroll County Court of Common Pleas. The trial court sentenced appellant to a 12-month prison term and to five years of community control sanctions for violating R.C. 2919.21(B), a fifth-degree felony. The 12-month prison sentence was the maximum sentence. Because the trial court actually sentenced appellant to a 12-month prison term, that aspect of the sentence presents a final, appealable order. Although the trial court attempted to suspend the 12-month prison term, under Ohio felony sentencing statutes, this option should technically no longer be available to a sentencing court. This matter must be reversed and the case remanded for resentencing within the guidelines of the felony sentencing statutes. ¶ 2 On March 21, 2002, appellant pleaded guilty to one count of nonsupport of his dependants in violation of R.C. 2919.21(C). Such a violation may be a misdemeanor or a felony, depending on prior violations of the statute. Appellant was charged with and pleaded guilty to a fifth-degree felony. ¶ 3 On March 22, 2002, the trial court filed its judgment entry of conviction and sentence. The judgment entry states: “The Court sentenced defendant on Count One of the Indictment to serve a definite term of incarceration of twelve (12) months at the Ohio Department of Corrections * * The court also found that appellant committed the worst form of the offense and that the shortest prison term would demean the seriousness of the defendant’s conduct. In recording his earlier discussion with appellant, the court stated: “[S]aid sentence was suspended in part, and defendant is sentenced to five (5) years community control * * This appeal followed. ¶ 4 Appellant’s sole assignment of error asserts: ¶ 5 “Did the trial court err in sentencing defendant/appellant to a maximum sentence of twelve (12)[sic] for a fifth-degree felony?” ¶ 6 As an initial matter, we must determine whether the issue presented in this appeal is ripe for review at this time. This court has very recently held that cases in which the trial court clearly states' in its sentencing entry that a felony prison sentence has been imposed (in contrast to a sentence directly to community control where the prison sentence is mentioned as a mere possibility) must be appealed immediately to preserve any errors associated with the imposed prison term. State v. Baker, 152 Ohio App.3d 138, 2002-Ohio-7295, 787 N.E.2d 17, reaffirming the holding in State v. Pitts (Mar. 14, 2001), 7th Dist. No. 99 BA 67, 2001 WL 273838. Such errors in actually imposing the prison term *77 must be immediately appealed even if the trial court then “suspends” the felony prison sentence and further orders probation or community control sanctions. ¶ 7 We note that Baker involved the same trial judge, the same court of common pleas, the same sentencing language, and the same legal issues involved in the instant case. We decided Baker very recently, on December 26, 2002. The principle of stare decisis, which dictates that a court stand by its precedents and not disturb established law, compels us to adhere to Baker. Krause v. State (1972), 31 Ohio St.2d 132, 148, 60 O.O.2d 100, 285 N.E.2d 736. The United States Supreme Court has held that “ ‘the doctrine of stare decisis is of fundamental importance to the rule of law.’ ” Patterson v. McLean Credit Union (1989), 491 U.S. 164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132, quoting Welch v. Texas Dept. of Highways & Pub. Transp. (1987), 483 U.S. 468, 494, 107 S.Ct. 2941, 97 L.Ed.2d 389. The Ohio Supreme Court has held that “ ‘any departure from the doctrine of stare decisis demands special justification.’ ” Wampler v. Higgins (2001), 93 Ohio St.3d 111, 120, 752 N.E.2d 962, quoting Patterson, 491 U.S. at 172, 109 S.Ct. 2363, 105 L.Ed.2d 132. This case presents no special reasons for departing from the principle of stare decisis and, in fact, underscores this principle. Based on our recent Baker decision, the instant appeal presents a final and appealable order. ¶ 8 In upholding Baker, it is appropriate to elaborate further on our conclusion that the issue on appeal presents a reviewable order. A court of appeals is charged with the duty to review final orders. “Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * Section 3(B)(2), Article IV of the Ohio Constitution; see, also, R.C. 2505.03. This court is permitted to review judgments only when it is presented with an order that is both final and appealable as defined by R.C. 2505.02 and other relevant procedural rules. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus. Furthermore, “ ‘an appeal from a final judgment brings up for review all interlocutory or intermediate orders involving the merits and necessarily affecting the final judgment which were made prior to its entry.’ ” Helman v. EPL Prolong, Inc. (2000), 139 Ohio App.3d 231, 239, 743 N.E.2d 484, quoting Hollington v. Ricco (1973) , 40 Ohio App.2d 57, 67, 69 O.O.2d 45, 318 N.E.2d 442. ¶ 9 An appealable issue must be raised at the earliest opportunity to do so. State v. Williams (1996), 74 Ohio St.3d 454, 455, 659 N.E.2d 1253. ¶ 10 In a criminal case, the final and appealable order consists of both the judgment of conviction and the order imposing the sentence. Crim.R. 32(C); State v. Henderson (1979), 58 Ohio St.2d 171, 178, 12 O.O.3d 177, 389 N.E.2d 494. *78 There is no question that the March 22, 2002 judgment entry presented a final and appealable order consisting of a judgment of conviction and a sentence. Any tangential orders within the judgment entry and any prior orders that had not yet been appealable became appealable on March 22, 2002. Appellant correctly filed an appeal of the March 22, 2002 judgment entry for our review of the issues in that order, including the fact that the court had actually sentenced him to a definite prison term. ¶ 11 The trial court clearly ordered appellant to serve a definite term of incarceration of 12 months. The court made other findings consistent with an intent to impose an actual prison sentence, e.g., the court found that appellant committed the worst form of the offense and that the shortest prison term would demean the seriousness of the offense. We must interpret the language used in the judgment entry to mean what its says: the trial court intended to impose an actual prison sentence. The court uses unconditional language that can only be viewed as an order. This order' is contained within a final and appealable order and became reviewable on March 22, 2002. ¶ 12 We are aware that some other appellate districts might not view the prison sentence imposed in the March 22, 2002 judgment entry as a final appealable order. See State v. Gardner (Dec. 1, 1999), 3d Dist. No. 14-99-24, 1999 WL 1075424. ¶ 13 Under the new felony sentencing statutes that came into effect in 1996 pursuant to Am.Sub.S.B. No. 2, it appears that a trial court may not impose both a prison sentence and community control sanctions at the same time. If the trial court intends to impose community control sanction but wishes to reserve the option of later imposing a prison térm, the court must give the defendant notice of the possible prison term at the time that community control sanctions are imposed. R.C. 2929.19(B)(5). In the vast majority of cases where community control sanctions are imposed, the trial court will follow the dictates of R.C. 2929.19(B)(5) and will not attempt to impose both a prison term and community control sanctions at the same time. ¶ 14 The case currently under review presents an appeal of a criminal sentence in which the trial court actually stated that it was imposing both a prison term and community control sanctions. As a reviewing court, we are limited by the record as it is presented to us. We review the record to determine what the lower court has actually ordered. If the trial court imposes a prison term and the order is otherwise appealable, we must review that order. If the trial court has not actually imposed a prison term but merely threatens to impose a prison term or reserves the right to impose a prison term at a later time, then the court has not actually ordered a prison sentence and the issue is not ripe for review. The distinction is determined by the record. Our task is simply a *79 matter of reading the record before us and determining what the trial court actually stated and ordered. The instant case, like Pitts• and Baker, contains a sentencing order that actually imposes a prison term. In Pitts and Baker, the defendant failed to timely appeal the order containing the prison sentence, thus waiving any errors relating to the prison term. In this case, appellant has preserved his error by timely appealing the sentencing entry that imposed the prison term. ¶ 15 Based on these considerations, appellant correctly filed an appeal of the March 22, 2002 sentencing entry. ¶ 16 It is clear that appellant’s assignment of error has merit. The trial court imposed both a prison term and community control sanctions at the same time, sentencing that does not comport with the current felony sentencing statutes. Baker, supra, 152 Ohio App.3d 138, 2002-Ohio-7295, 787 N.E.2d 17, at ¶ 12. When a court imposes community control sanctions, the sanctions are directly imposed on the defendant and do not follow as a consequence of a suspended prison sentence. R.C. 2929.15(A). Since 1996, trial courts need to decide which sentence is most appropriate — prison or community control sanctions — and impose whichever option is deemed to be necessary. ¶ 17 In addition, when a court imposes the maximum prison term for an offense, the court must make specific findings supporting the maximum sentence as prescribed in R.C. 2929.14(C) and must give reasons for making the findings as prescribed in R.C. 2929.19(B)(2)(d). See State v. Edmonson (1999), 86 Ohio St.3d 324, 328, 715 N.E.2d 131. Although the trial court did make a finding that appellant committed the worst form of the offense, the court does not explain its reasons for making this finding. ¶ 18 Finally, when sentencing a defendant after a conviction for a fourth-or-fifth degree felony, the trial court is required to make further determinations pursuant to R.C. 2929.13(B)(1). It does not appear that the trial court evaluated the factors contained in R.C. 2929.13(B)(1). ¶ 19 Based on the foregoing considerations, we sustain appellant’s sole assignment of error. We reverse the March 22, 2002 judgment entry for resentencing and remand this cause for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Gene Donofrio, J., concurs. DeGenaro, J., dissents.