State v. Walsson , 2018 Ohio 4485 ( 2018 )

[Cite as State v. Walsson, 2018-Ohio-4485.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2018-02-004
: OPINION
- vs - 11/5/2018
:
RAYMOND WADE WALSSON, JR., :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2015CR0665
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for defendant-appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Raymond W. Walsson, appeals from the decision of the
Clermont County Court of Common Pleas sentencing him to three consecutive eight-month
prison terms.
{¶ 2} On December 22, 2015, the Clermont County Grand Jury returned a three-
count indictment charging Walsson with three fifth-degree felonies. Walsson pled guilty to all
Clermont CA2018-02-004
three counts. On June 22, 2016, the trial court sentenced him to five years of community
control. The sentencing entry included general conditions of supervision and specific
sanctions and conditions. Approximately two months after sentencing, the probation
department filed an affidavit asserting Walsson violated the conditions of his community
control. The affidavit alleged Walsson violated the general conditions by failing to abide by
all laws, refrain from drug use, and follow probation officer instructions. The affidavit further
alleged Walsson violated the specific conditions by failing to refrain from alcohol or drug use,
successfully complete drug treatment, successfully complete treatment recommended by the
probation department, and pay court costs, probation fees, and restitution.
{¶ 3} The trial court held a hearing on the matter wherein Walsson admitted to the
violations. The trial court found Walsson committed the community controls violations and
continued sentencing. Approximately four months later, the probation department filed a
supplemental affidavit asserting Walsson committed additional community control violations.
The affidavit alleged Walsson again engaged in the use of alcohol or drugs, including heroin
and cocaine. The trial court held another hearing and Walsson admitted to the violations.
{¶ 4} The trial court found Walsson committed the violations and sentenced him to
serve three consecutive eight-month prison terms for the fifth-degree felonies. As discussed
below, the trial court found
the limitations of R.C. 2929.15(B)(1)(c) do not apply because the
defendant was on community control for three separate offenses,
not 'a felony of the fifth degree,' and because part of the
community control violation was for the defendant's continued
use of heroin and cocaine, each instance of which constitutes a
new felony criminal offense.
Walsson appealed his sentence based on the trial court's findings pursuant to R.C.
2929.15(B)(1)(c).
{¶ 5} Sole Assignment of Error:
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{¶ 6} THE TRIAL COURT ERRED IN FINDING THAT R.C. 2929.15(B)(1)(C)(I) ONLY
APPLIES TO DEFENDANTS WHO ARE ON COMMUNITY CONTROL FOR ONE FELONY
OF THE FIFTH DEGREE.
{¶ 7} Walsson argues the trial court erred in finding the 90-day statutory limitation
inapplicable. Walsson contends the trial court misconstrued the statutory language when it
found the limitation does not apply where a defendant violates his community control
sanction, which was imposed for multiple fifth-degree felonies, as compared to a single fifth-
degree felony. Therefore, Walsson asserts his sentence is clearly and convincingly contrary
to law.
{¶ 8} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1; accord State v. Crawford, 12th
Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to R.C. 2953.08(G)(2),
when hearing an appeal of a trial court's felony sentencing decision, "[t]he appellate court
may increase, reduce, or otherwise modify a sentence that is appealed under this section or
may vacate the sentence and remand the matter to the sentencing court for resentencing."
{¶ 9} As explained in Marcum, "[t]he appellate court's standard for review is not
whether the sentencing court abused its discretion." Marcum at ¶ 9. Rather, pursuant to
R.C. 2953.08(G)(2), an appellate court may only "increase, reduce, or otherwise modify a
sentence * * * or may vacate the sentence and remand the matter to the sentencing court for
resentencing" if the court finds by clear and convincing evidence "(a) [t]hat the record does
not support the sentencing court's findings[,]" or "(b) [t]hat the sentence is otherwise contrary
to law." R.C. 2953.08(G)(2)(a)-(b). A sentence is not "clearly and convincingly contrary to
law where the trial court considers the principles and purposes of R.C. 2929.11, as well as
the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the
defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No.
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CA2015-06-100, 2016-Ohio-2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No.
CA2014-02-016, 2014-Ohio-5191, ¶ 6.
{¶ 10} Walsson contends his sentence is contrary to law because the trial court
sentenced him outside the permissible statutory range. The relevant sentencing statute at
issue is R.C. 2929.15(B)(1)(c), which provides that if a defendant violates the conditions of a
community control sanction, the sentencing court may impose a prison term pursuant to R.C.
2929.14 and 2929.15(B)(3). R.C. 2929.15(B)(1)(c) is subject to the following limitations:
(i) If the prison term is imposed for any technical violation of the
conditions of a community control sanction imposed for a felony
of the fifth degree 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 ninety days.
(ii) 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.
{¶ 11} As discussed above, the trial court made two findings with respect the
inapplicability of R.C. 2929.15(B)(1)(c). First, the trial court found the statutory provision did
not apply to Walsson because he was on community control for three separate offenses, as
opposed to a single fifth-degree felony. Second, the statute did not apply to Walsson
because part of his violations of the conditions of his community control sanction involved his
continued use of heroin and cocaine, which constitute new felony criminal offenses.
Walsson argues the trial court erred with respect to the first finding. However, we need not
determine whether the trial court erred in its interpretation of the phrase, "a felony of the fifth
degree," as the 90-day exception does not apply to Walsson based on the plain language of
the statute.
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{¶ 12} R.C. 2929.15(B)(1)(c)(i) provides that a prison term imposed for violation of
fifth-degree felony community control may not exceed 90 days if the violation was "for any
technical violation" or any "violation of law * * * that consists of a new criminal offense and
that is not a felony * * *." Thus, an offender on community control for a fifth-degree felony
who engages in conduct constituting a new felony offense does not enjoy the benefit of the
90-day prison term limitation.
{¶ 13} The trial court imposed Walsson's community control sanction for three fifth-
degree felonies. At the hearing, Walsson admitted and the trial court found that he violated
the conditions of his community control sanction by using heroin and cocaine. Use of heroin
and cocaine are felonies pursuant to R.C. 2925.11(C)(4) and (6). Thus, Walsson committed
violations of law while under his imposed fifth-degree felony community control sanction that
are new felony criminal offenses. Therefore, the prison term limitation of R.C.
2929.15(B)(1)(c)(i) is explicitly inapplicable to Walsson and the trial court did not err in
imposing three consecutive eight-month prison terms.
{¶ 14} Accordingly, Walsson's sentence is not clearly and convincingly contrary to law
and his sole assignment of error is overruled.
{¶ 15} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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