State v. Stevens ( 2019 )

[Cite as State v. Stevens, 2019-Ohio-1838.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
STATE OF OHIO, :
: Case No. 18CA712
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
KENNETH STEVENS, :
:
Defendant-Appellant. : Released: 05/06/19
APPEARANCES:
Brian A. Smith, Akron, Ohio, for Appellant.
Trecia Kimes-Brown, Vinton County Prosecutor, and William L. Archer Jr.,
Assistant Vinton County Prosecutor, McArthur, Ohio, for Appellee.
McFarland, J.
{¶1} This is a delayed appeal from a Vinton County Court of Common
Pleas judgment entry terminating Appellant’s community control and imposing a
prison term.
{¶2} Appellant pleaded guilty to four criminal counts, and the trial court
suspended an 18-month sentence and imposed community control. Subsequently,
the trial court required Appellant to complete the Structure Therapy Advocacy
Restoration (STAR) Program. After Appellant withdrew from the STAR program,
the trial court revoked his community control and imposed the 18-month sentence.
Vinton App. No. 18CA712 2
Appellant appealed asserting that his sentence was limited to 180 days pursuant to
R.C. 2929.15(B)(1)(c)(ii), which caps sentences at 180 days for technical
community control violations. Because we find that the failure to complete the
STAR program was not a not technical violation, the 180-day sentence cap in R.C.
2929.15(B)(1)(c)(ii) does not apply. Therefore, we affirm Appellant’s sentence.
Facts and Procedure
{¶3} The State issued a complaint charging Appellant with: (1) tampering
with drugs in violation of R.C. 2925.24, a third degree felony; (2) disrupting public
services in violation of R.C. 2909.04(A)(3), a fourth degree felony; (3) possession
of drugs in violation of R.C. 2925.11(A)(2)/(C)(2)(b), a first degree misdemeanor;
(4) domestic violence in violation of R.C. 2919.25(A), a first degree misdemeanor;
(5) criminal damaging in violation of R.C. 2909.06(A)(1), a first degree
misdemeanor, (6) obstructing official business in violation of R.C. 2921.31, a
second degree misdemeanor; and, (7) resisting arrest in violation of R.C.
2921.33(A), a second degree misdemeanor.
{¶4} Appellant waived his right to a jury trial and pleaded guilty to
disrupting public services, possession of drugs, domestic violence, and criminal
damaging. On March 22, 2017, the trial court imposed a suspended 18-month
sentence and ordered Appellant to serve three years of community control, as well
as specific conditions, including that Appellant “shall successfully complete anger
Vinton App. No. 18CA712 3
management counseling as directed by the APA.” The sentencing entry stated that
if Appellant “violates the conditions of community control * * * the court may
impose a longer time under the same sanction, may impose a more restrictive
sanction, or may impose a prison term of 18 months upon the convictions set
forth.”
{¶5} On January 22, 2018, the State issued a Notice of Community Control
Violations that indicated since September 8, 2017 Appellant had missed or
rescheduled appointments at Treatment Assessment Screening Center (TASC) at
least 20 times and had tested positive for buprenorphine twice.
{¶6} On February 28, 2018, the trial court issued a judgment recognizing
that Appellant waived his right to a hearing and admitted to the violations.
Nevertheless, the court found that Appellant was still amenable to continued
community control sanctions, but the court also required that he “shall enroll in
and successfully complete STAR and all recommended aftercare as directed by the
Adult Parole Authority.” The STAR program is a community based correctional
facility (CBCF)1.
1
“Community Based Correctional Facilities (CBCFs) are secure residential programs that provide
comprehensive programming for offenders on felony probation. CBCFs provide a wide range of
programming addressing offender needs such as cognitive behavioral therapy, chemical dependency,
education, employment, and family relationships. CBCFs are governed by a facility governing board and
advised by a judicial advisory board.” https://drc.ohio.gov/community.
Vinton App. No. 18CA712 4
https://drc.ohio.gov/Portals/0/CBCF%20Directory%20w%20FGB%20Chair%20F
Y2019.pdf
{¶7} On March 5, 2018, the State issued a second Notice of Community
Control Violations alleging that Appellant entered with force Jennifer Quintal’s
residence without her permission. It further alleged that while he was there he
threatened and held Quintal against her will, took her phone, and disrupted public
service from Quintal.
{¶8} On March 14, 2018, the trial court issued an entry finding that the
State withdrew the alleged violations, so the court continued the community
control sanctions.
{¶9} On April 4, 2018, the State issued a third Notice of Community
Control Violations stating that on April 2, 2018, Appellant had “self-terminated”
from the court ordered STAR program against staff advice.
{¶10} On April 11, 2018, the trial court held a hearing to consider the
alleged violations, and a new criminal offense. The State recommended that
Appellant’s community control be revoked and that he serve the balance of his
sentence, 18 months, with 60 days of jail time credit. Appellant admitted that he
walked out from the STAR program. He also pleaded not guilty to the new
charges.
Vinton App. No. 18CA712 5
{¶11} The court found that Appellant violated community control sanctions
by voluntarily leaving the STAR program. The court then also found that
Appellant was no longer amenable to community control sanctions, and then
imposed the 18 months in jail for the original disrupting public services conviction
with 60 days of jail time credit. The court stated that “not completing the STAR
program, uh, would not be considered a technical violation and therefore, the Court
has the authority to impose the sentence which has been imposed here today.”
{¶12} Appellant did not file a timely appeal, but did file a motion for a
delayed appeal, which we granted. In his delayed appeal, Appellant asserts two
assignments of error.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT’S SENTENCE WAS CONTRARY TO LAW.
II. THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S
SENTENCE OF APPELLANT.
ASSIGNMENT OF ERROR I
{¶13} Appellant’s first assignment of error contends the trial court’s
imposition of an 18-month prison term for his violation of community control was
contrary to law because his violation was not criminal in nature making it merely a
technical violation, which caps his maximum possible sentence at 180 days under
2929.15(B)(1)(c)(ii).
Vinton App. No. 18CA712 6
{¶14} The State asks the court to adopt the reasoning of several courts of
appeals that have held that even though a community control violation is not
criminal in nature, it is nevertheless not a technical violation if a special condition
was imposed. This, the State argues, means that the 180-day sentence cap in R.C.
2929.15(B)(c)(ii) would not apply so Appellant’s 18-month sentence would not be
contrary to law.
{¶15} An appellate court may reverse a sentence only if it is clearly and
convincingly not supported by the sentencing court's findings, or it is otherwise
contrary to law. State v. Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062,
2018-Ohio-4506, ¶ 10, State v. Marcum, 2016-Ohio-1002, 146 Ohio St. 3d 516,
521, 59 N.E.3d 1231, ¶ 23.
{¶16} R.C. 2929.15(B)(1)(c)(ii) provides:
If the prison term is imposed for any technical violation of the
conditions of a community control sanction imposed for a felony of
the fourth degree that is not an offense of violence and is not a
sexually oriented offense or for any violation of law committed
while under a community control sanction imposed for such a
felony that consists of a new criminal offense and that is not a
felony, the prison term shall not exceed one hundred eighty days.
(Emphasis added.)
{¶17} Accordingly, a technical violation of community control means that
any sentence then imposed by the trial court cannot exceed 180 days. However,
R.C. 2929.15 does not define “technical violation.”
Vinton App. No. 18CA712 7
{¶18} The Supreme Court of Ohio has defined “ ‘technical violations’ [of
parole] as ‘those violations of the terms and conditions of the parole agreement
which are not criminal in nature[,] such as failure to report to the parole officer,
association with known criminals, leaving employment, leaving the State, etc.’ ”
State ex rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St. 3d 121, 124, 609
N.E.2d 546 (1993), quoting Inmates' Councilmatic Voice, supra, 541 F.2d at 635,
fn. 2. This Court adopted Taylor’s definition of technical violation in holding that
“a technical violation of community control for purposes of R.C. 2929.15(B) is a
violation that is not criminal in nature.” State v. Abner, 4th Dist. Adams Nos.
18CA1061, 18CA1062, 2018-Ohio-4506, ¶ 13.
{¶19} However, a month later in State v. Blake, 4th Dist. Hocking No.
18CA6, 2018-Ohio-5413, ¶ 11, we held that the violation of a special condition
imposed as part of community control, even though not criminal in nature, is a
non-technical violation under 2929.15(B)(1)(c)(i).
{¶20} In Blake, the defendant entered guilty pleas to possession and
trafficking in drugs, both fifth degree felonies. Blake at ¶ 3. The court granted the
defendant intervention in lieu of conviction and placed the defendant under the
supervision of Adult Parole Authority for three years, which included certain terms
and conditions: (1) attend GED classes, (2) pay court costs, (3) complete treatment
Vinton App. No. 18CA712 8
in lieu, (4) forfeit money seized, (5) have no contact with felons, and (6) abstain
from using or possessing illegal drugs or alcohol. Id.
{¶21} The defendant violated her community control by associating with
criminals and drinking alcohol. Blake, ¶ 4. The trial court revoked her treatment in
lieu of conviction and sentenced her to 24 months, but suspended the prison term
and placed her on community control for five years with the following conditions:
(1) supervision for the first year on community control, (2) substance abuse
counseling, (3) no alcohol or illegal drug use, (4) pay court costs, and (5) no
association with criminals without APA permission. Id.
{¶22} The defendant admitted to a second violation of her community
control for using non-prescribed opiates (Percocet). Blake, ¶ 5. The trial court
continued the community control for five years and imposed the following
conditions: (1) obtain substance abuse health counseling through an appropriate
agency, costs to defendant, successfully complete said program and follow through
with the recommendations made, (2) do not to use or possess any alcohol, illegal
drugs, drug paraphernalia and pseudoephedrine whatsoever, (3) have no contact
whatsoever with persons with a criminal record without permission of the Adult
Parole Authority, and (4) enter the STAR Program and Aftercare Program,
successfully complete said programs and follow through with the recommendations
Vinton App. No. 18CA712 9
made. Successful completion of said programs will result in termination of
probation. (Emphasis added.) Id.
{¶23} The State again alleged that the defendant violated community
control and asked her supervision be revoked. Blake, ¶ 6. The State alleged that
the appellant “knowingly caused STAR staff members to believe that you would
cause serious physical harm to them or their family members” and “failed to
complete the STAR program, when * * * [she] was unsuccessfully terminated from
the STAR program.” Id. The trial court revoked appellant’s community control
and imposed a 24-month sentence. Id.
{¶24} Blake appealed asserting that the trial court's 24-month prison
sentence was clearly and convincingly contrary to law because it exceeded the 90-
day cap for technical violations of community-control sanctions pursuant to R.C.
2929.15(B)(1)(c)(i). Blake at ¶ 8.
{¶25} Blake reaffirmed that technical violations of community control are
violations that are not criminal in nature. Id. at ¶ 8, 9. However, Blake also
adopted the rationale from Fifth and Twelfth District Courts of Appeals that CBCF
treatment was a rehabilitative requirement imposed as a special condition of
community control, and even though such a violation was not criminal in nature, it
was nevertheless a non-technical violation, making the 90-day sentencing cap in
R.C. 2929.15(B)(1)(c)(i) inapplicable for fifth degree felonies. Blake, at ¶ 10 and
Vinton App. No. 18CA712 10
11, citing State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672,
¶ 16-18, State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219. We
applied this reasoning in assessing to Blake’s violation:
“[A]ppellant was discharged from the CBCF; she did not
voluntarily sign herself out. Nevertheless, the end result is the same
- appellant failed to complete the STAR program, which constitutes
a violation of community control. Therefore, consistent
with Cozzone, Davis, and Mannah, we conclude that the
requirement for appellant to complete a CBCF is a special
condition of community control and, thus, a non-technical
violation.” Blake at ¶ 11.
{¶26} Because Blake’s violation was not a technical violation, the 90-day
sentence cap in R.C. 2929.15(B)(1)(c)(i) did not apply so we affirmed the trial
court’s 24-month sentence. Id.
{¶27} Here, we find that Blake is controlling of Appellant’s appeal.2
Similar to Blake, after a community control violation, the trial court found that
Appellant was still amenable to continued community control sanctions, but the
court added the requirement that Appellant “shall enroll in and successfully
complete STAR and all recommended aftercare as directed by the Adult Parole
Authority.” But Appellant withdrew and consequently failed to successfully
complete the STAR program. Under Blake, Appellant’s failure to complete the
STAR program is a non-technical violation of his community control sanctions.
2
R.C. 2929.15(B)(1)(c)(i), addressed in Blake, contains sentence caps for fifth degree felonies, while R.C.
2929.15(B)(1)(c)(ii), applicable to Appellant, contains sentence caps for fourth degree felonies, we find no
reason why our definition of a non-technical violation in Blake would not apply to a fourth degree felony
at issue in this case.
Vinton App. No. 18CA712 11
Therefore, R.C. 2929.15(B)(1)(c)(ii) did not cap Appellant’s sentence at 180 days,
which means the trial court’s imposition of an 18-month sentence was not contrary
to law. Accordingly, we overrule Appellant’s first assignment or error.
ASSIGNMENT OF ERROR NUMBER II
{¶28} In his second assignment of error, Appellant argues that the trial
court’s sentence is not clearly and convincingly supported by the record.
{¶29} In response, the State argues that there is clear and convincing
evidence from the record that Appellant violated community control by failing to
complete the Star program. “Clear and convincing evidence has been defined as
‘[t]he measure or degree of proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the allegations sought to be established. It is
intermediate, being more than a mere preponderance, but not to the extent of such
certainty as required beyond a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.’ ” In re I.M., 4th Dist. Athens No. 10CA35, 2011-
Ohio-560, ¶ 6, quoting In re McCain, 4th Dist. Vinton No. 06CA654, 2007-Ohio-
1429, at ¶ 8.
{¶30} There is clear and convincing evidence that Appellant failed to
successfully complete the Star Program, which was a condition of his community
control. Therefore, we overrule Appellant’s second assignment of error.
Vinton App. No. 18CA712 12
{¶31} Accordingly, because the trial court’s sentencing of Appellant to 18
months in prison was not contrary to law and is supported by the record and by
clear and convincing evidence, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Vinton App. No. 18CA712 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Vinton County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.