In September 2012, a Summit County jury found David Anderson guilty of kidnapping and rape, both first-degree felonies. The trial court imposed a mandatory prison term of ten years for the rape and a discretionary term of seven years for the kidnapping. The sentences were to be served consecutively. The trial court also ordered Anderson to have no contact with the victim.
When Anderson filed an appeal with the Ninth District Court of Appeals, he argued that “the trial court committed reversible and plain error” when it ordered him to have “no contact” the victim. In reviewing the case, the court of appeals noted that while a no contact order “may under certain circumstances function as a community control sanction, there is nothing to indicate that it may only function as a community control sanction.”
“Community control sanctions” – which used to be commonly referred to as “probation” – cover a wide variety of options that judges can use in criminal sentencing, including traditional probation supervision after a person is released from prison.
The court of appeals stated that while there is no legal provision expressly authorizing the imposition of a no contact order, it’s significant that “there is no provision prohibiting the imposition of such an order.”
After reasoning that a no-contact order serves the “overriding purpose of felony sentencing,” the court of appeals determined that “a trial court may impose a no contact order as part of its sentence,” and it thus affirmed Anderson’s sentences.
But the Ninth District found that its decision was in conflict with decisions of the Eighth District Court of Appeals in similar cases. When conflicts of that sort arise, they come before us – the Ohio Supreme Court – for a final resolution.
In the two opinions authored by the Eighth District that dealt with this issue, that court could “find no authority in Ohio sentencing law to allow for a no-contact order when imposing a prison term.” Instead, the Eighth District concluded, “Once the trial court imposed a prison term and executed the sentence, the authority to impose any ‘no contact’ order following the defendant’s release from prison lies with the Adult Parole Authority.”
The question before us, then, was this: If a defendant is sentenced to prison for a term of incarceration, does the trial court have authority to issue against the defendant, a “no contact” order with the victim?
We began our analysis by examining where a trial court draws its authority to impose criminal sentences. Judges have no inherent power to create sentences; rather, they are duty-bound to apply sentencing laws as they are written.
In 1974, the Ohio legislature enacted a law that required all criminal offenses to be codified – in other words, to be part of the Ohio Revised Code, our state’s laws. That 1974 legislation stated, “No conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code.” It also stated that an “offense is defined when one or more sections of the Revised Code state a positive prohibition…and provide a penalty for violation of such prohibition…”
Consequently, the only sentence a trial judge may impose is one that is provided for in state law. None of the felony-sentencing laws expressly provides that a no-contact order is an available sanction for a felony offense.
So, can a no-contact order be imposed along with a prison term for the same offense?
In 1995, the state legislature passed a law further reforming sentencing in Ohio. Prior to that reform, it was a regular practice for judges in felony sentencing to impose a prison sentence, then suspend it and grant probation with specific terms and conditions.
In a case from 2005, a court of appeals wrote that before the 1995 reforms, “It was quite appropriate for a judge to treat probation as a contract for leniency. Probation was conditioned on good behavior. Violation of that probation was a breach of contract with the sentencing judge. For the breach, the judge could properly impose the suspended prison sentence – even for the most trivial violation of probation.”
One of the overriding goals of that 1995 legislation was “truth in sentencing.” That meant that the sentence imposed by the judge would be the sentence that was served, unless altered by the judge. This was accomplished mostly by eliminating indefinite sentences and eliminating parole.
With the passage of that 1995 legislation, “community control replaced probation as a possible sentence under Ohio’s felony sentencing law.” Therefore, options for felony sentencing after 1995 included prison terms and community-control sanctions.
The felony sentencing laws that emerged from that 1995 legislation required trial courts to impose either a prison term or community control sanctions on each count. One or the other – not both.
In writing the majority opinion in this case, Justice Sharon L. Kennedy noted that the current versions of the felony-sentencing laws – even though they have been amended numerous times – continue to reflect that the legislature intended prison terms and community-control sanctions to be alternative sentences for a felony offense.
For example, one of the sentencing laws provides that a prison term is the presumed sentence, but that same law specifies that upon making certain findings, a court may impose a community-control sanction “instead of a prison term.”
Therefore, we concluded 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.
Anderson was convicted of two first-degree felonies: rape and kidnapping. The trial court imposed prison terms for both offenses. The court also imposed a no-contact order.
Because a court cannot impose a prison term and a community-control sanction for the same offense, and no exception allows otherwise, we concluded – by a seven-to-zero vote – that the trial court erred in imposing the no-contact order. We therefore reversed the judgment of the court of appeals and vacated the no-contact order.
EDITOR’S NOTE: The case referred to is: State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089. Case No. 2014-0674. Decided June 3, 2015. Majority opinion written by Justice Sharon L. Kennedy.