State v. Mannah ( 2018 )

[Cite as State v. Mannah, 2018-Ohio-4219.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff – Appellee Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 17-CA-54
NICOLE RENAE MANNAH
Defendant – Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County Court of
Common Pleas Case No. 2016 CR 00400
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 17, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ SCOTT WOOD
ASSISTANT PROSECUTING ATTNY. CONRAD / WOOD
239 West Main Street, Suite 101 120 E. Main Street, Suite 200
Lancaster, OH 43130 Lancaster, OH 43130
Fairfield County, Case No. 17-CA-54 2
Hoffman, J.
{¶1} Appellant Nicole R. Mannah appeals the judgment entered by the Fairfield
County Common Pleas Court revoking her community control and sentencing her to a
term of incarceration of ten months. Appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On November 22, 2016, Appellant entered guilty pleas to one count of
possession of heroin and three counts of aggravated trafficking in drugs. She was
sentenced to three years of community control on the possession of heroin conviction,
and three years of community control on one of the aggravated trafficking convictions.
She was sentenced to fourteen months incarceration on each of the remaining counts of
aggravated trafficking, to be served consecutively. The court advised Appellant
revocation of her community control could result in the imposition of a sentence of ten
months incarceration for possession of heroin and fourteen months incarceration for
aggravated trafficking, to be served consecutively to any other sentence previously
imposed.
{¶3} Appellant was granted judicial release on July 26, 2017. As a condition of
her community control, she was to successfully complete all CBCF program
requirements. On October 31, 2017, she asked to be unsuccessfully terminated from the
program.
{¶4} Appellee sought revocation of Appellant’s community control on November
6, 2017. Appellant stipulated to the violation. The court found the violation to be non-
1
A rendition of the facts underlying the offenses is unnecessary for our resolution of the issues raised in
this appeal.
Fairfield County, Case No. 17-CA-54 3
technical in nature, and imposed the ten month sentence for possession of heroin. The
court also imposed the remaining term of incarceration of 351 days for two convictions of
aggravated trafficking, and allowed her to remain on community control with regard to the
remaining conviction of aggravated trafficking.
{¶5} It is from the December 18, 2017 judgment revoking her community control
Appellant prosecutes her appeal, assigning as error:
“THE COURT ERRED IN SENTENCING APPELLANT AFTER A
COMMUNITY CONTROL VIOLATION.”
{¶6} Appellant argues the court’s sentence of ten months violates R.C.
2929.15(B)(1)(c), and further the statute implicitly prohibits the imposition of consecutive
sentences.
{¶7} R.C. 2929.15(B)(1)(c)(i) provides:
(B)(1) If the conditions of a community control sanction are violated
or if the offender violates a law or leaves the state without the permission of
the court or the offender's probation officer, the sentencing court may
impose upon the violator one or more of the following penalties:
(c) A prison term on the offender pursuant to section 2929.14 of the
Revised Code and division (B)(3) of this section, provided that a prison term
Fairfield County, Case No. 17-CA-54 4
imposed under this division is subject to the following limitations, as
applicable:
(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.
{¶8} The trial court specifically found the violation in the instant case was not a
technical violation, rendering the statute quoted above inapplicable. Appellant argues the
violation was a technical violation because the violation did not constitute a crime or other
violation of the law.
{¶9} The Eleventh Appellate District addressed R.C. 2929.15(B) in a case where
the defendant overdosed on heroin in violation of the terms of her community control.
State v. Cozzone, 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-2249. The defendant
argued her community control violation was technical in nature, and therefore, the
maximum prison term which could be imposed for the violation was 180 days. The
appellate court observed the term “technical violation” was not defined in R.C. 2929.15;
however, other appellate districts had addressed “technical violations” as they pertained
to revocation of community control sanctions and parole violations in cases predating the
statutory amendment. Id. at ¶ 38, citing State v. Cearfoss, 5th Dist. Stark No.
Fairfield County, Case No. 17-CA-54 5
2004CA00085, 2004-Ohio-7310 (defendant's failure to follow his probation officer's order
to open the front door was a “technical” violation); State v. Jenkins, 2nd Dist. Champaign
No. 2005-CA-22, 2006-Ohio-2639 (defendant's failure to notify his parole officer before
moving out of his residence where a convicted felon resided was “at best a ‘technical’
violation”); and Amburgey v. Ohio Adult Parole Auth., 12th Dist. Madison No. CA2001-
07-016, 2001 WL 1256365, 2001 Ohio App. LEXIS 4730 (Oct. 22, 2001) (“technical”
violations, in the context of parole, are 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, and leaving the state). The
Cozzone court concluded overdosing on drugs was criminal in nature and therefore could
not be considered a “technical violation” of community control. Cozzone, supra, at ¶ 39.
{¶10} In considering the identical argument raised in the instant case with regard
to a defendant who had signed himself out of a CBCF program, the Court of Appeals for
the Twelfth District found the violation was not technical in nature:
We decline appellant's request to find that his voluntarily signing
himself out of the CBCF in violation of his community control was merely
technical in nature. As stated above, appellant's community control
sanctions included standard rules and conditions as well as several “special
conditions.” One such condition required appellant to complete treatment at
a CBCF. Appellant's voluntary discharge from the CBCF's program and thus
his failure to complete treatment there were not a violation of a standard
term of community control, but rather, were a violation of a special condition
Fairfield County, Case No. 17-CA-54 6
of community control directly imposed by the trial court and specifically
tailored to address and treat appellant's substance abuse issues.
{¶11} State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶
17.
{¶12} The court further reasoned:
Moreover, the condition that appellant complete the CBCF treatment
program was not an administrative requirement facilitating community
control supervision, as was the case in Cearfoss, Jenkins, or Amburgey.
Rather, the special condition was a substantive rehabilitative requirement
which addressed a significant factor contributing to appellant's criminal
conduct. Appellant's voluntary discharge from the CBCF's treatment
program, therefore, cannot be considered a technical violation of
community control.
{¶13} Id. at ¶18.
{¶14} Had the legislature intended R.C. 2929.15 (B)(1)(c)(i) to apply to all
violations of community control which were non-criminal in nature, it could have
specifically stated so in the statute. Thus, the choice of the term “technical” implies it has
meaning distinct from “non-criminal” violations. R.C. 2929.15(B)(1)(c)(i) specifically sets
forth the ninety-day sentence limitation applies for violations of the law which are not
Fairfield County, Case No. 17-CA-54 7
felonies, if community control was imposed for a felony. If the legislature intended the
statute to apply solely to violations of community control which constitute criminal
offenses, it would have said so directly.
{¶15} We concur with the reasoning of the Twelfth District and find the trial court
did not err in finding the violation in the instant case to be non-technical in nature.
Appellant was required to successfully complete treatment at CBCF as a substantive
rehabilitative requirement to address a factor contributing to her drug convictions.
Appellant willfully checked herself out of the program, requesting to be unsuccessfully
terminated from the program. Although not criminal, we agree with the trial court the
violation was non-technical in nature. Therefore, R.C.2929.15(B)(1)(c)(i) does not apply,
and the court did not err in sentencing Appellant to ten months incarceration.
{¶16} Because the statute does not apply, we decline to address Appellant’s
argument the statute implicitly prohibits consecutive sentencing.
{¶17} Appellant also argues the court did not make the findings necessary to
impose consecutive sentences in the instant case.
{¶18} R.C. 2929.14(C) states,
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
Fairfield County, Case No. 17-CA-54 8
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶19} In State v. Bonnell, 140 Ohio St. 3d 209, 2–014–Ohio–3177, the Ohio
Supreme Court held in order to sentence a defendant to consecutive terms of
imprisonment, a trial court must make the findings required by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its entry. The Court held the
sentencing court has no obligation to state its reasons in support of its findings. Id.
{¶20} In the original sentencing entry, the trial court ordered, if imposed, the ten
month term for revocation of community control would be served consecutively to any
Fairfield County, Case No. 17-CA-54 9
other sentence previously imposed. The trial court made the requisite findings in the
entry, and Appellant has not provided this court with a transcript of her sentencing
hearing. In the absence of a transcript, we must presume regularity in the proceedings
below and affirm. Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 400 N.E.2d 384
(1980).
{¶21} The assignment of error is overruled.
{¶22} The judgment of the Fairfield County Common Pleas Court is affirmed.
By: Hoffman, J.
Wise, John, P.J. and
Wise, Earle, J. concur