State v. Calhoun , 2019 Ohio 228 ( 2019 )

[Cite as State v. Calhoun, 2019-Ohio-228.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-17-067
Appellee Trial Court No. 2015CR0355
v.
Delorean Calhoun DECISION AND JUDGMENT
Appellee Decided: January 25, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Wood County Court of Common
Pleas which sentenced appellant to a nine-month prison term sanction for violation of his
community control sanction. For the reasons set forth below, this court affirms the
judgment of the trial court.
{¶ 2} Appellant set forth one assignment of error:
1. The trial court committed plain error in sentencing appellant to
prison in excess of ninety days on a fifth degree felony for a technical
violation of his community control, in violation of R.C.
2929.15(B)(1)(c)(i).
I. Background
{¶ 1} The following facts are relevant to this appeal. On January 27, 2017,
appellant Delorean Calhoun pled guilty to the offense of forgery, a violation of R.C.
2913.31(A)(3) pursuant to R.C. 2913.31(C)(1)(a). Forgery is a felony of the fifth degree.
R.C. 2913.31(C)(1)(b). Appellant fraudulently used credit cards at a Best Buy store in
Perrysburg, Wood County, Ohio on August 12, 2015. The trial court accepted his plea
and found appellant guilty of the offense.
{¶ 2} Thereafter, and following a presentence investigation report and a
sentencing hearing, the trial court stated in its sentencing judgment entry journalized on
March 21, 2017, it imposed on appellant four years of a community control sanction with
13 terms and conditions and “reserved” a 12-month prison sentence. Specifically, the
trial court’s entry stated, “The Defendant was again reminded * * * that the Court is
reserving twelve (12) months in the Ohio Department of Rehabilitation and Corrections
should he violate the terms of his Community Control.”
2.
{¶ 3} At that time, R.C. 2929.15(A)(1) stated:
If in sentencing an offender for a felony the court is not required to
impose a prison term, a mandatory prison term, or a term of life
imprisonment upon the offender, the court may directly impose a sentence
that consists of one or more community control sanctions authorized
pursuant to [R.C. 2929.16, 2929.17, or 2929.18]. * * * The duration of all
community control sanctions imposed * * * shall not exceed five years. If
the offender absconds * * * the period of the community control sanction
ceases to run until the offender is brought before the court for its further
action.
{¶ 4} Appellant’s 13 conditions of his community control sanction were
nonresidential sanctions pursuant to R.C. 2929.17.
{¶ 5} By April 6, 2017, appellant violated at least one condition of his community
control sanction, by absconding from reporting to his West Virginia probation officer.
On May 1, 2017, appellee petitioned the trial court to revoke appellant’s community
control sanction and impose a prison sentence.
{¶ 6} Prior to the hearing on appellee’s petition, the General Assembly revised the
statute for community control sanction violations, in part, as follows in italics:
(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
3.
the court or the offender’s probation officer, the sentencing court may
impose upon the violator one or more of the following penalties:
(a) A longer tem under the same sanction if the total time under the
sanctions does not exceed the five-year limit specified in division (A) of
this section;
(b) A more restrictive sanction under [R.C. 2929.16, 2929.17 or
2929.18];
(c) A prison term on the offender pursuant to [R.C. 2929.14] and
[R.C. 2929.15(B)(3)], provided that a prison term 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.
***
(3) The prison term, if any, imposed upon a violator pursuant to
[R.C. 2929.15(B)(1)] shall be within the range of prison terms available for
the offense for which the sanction that was violated was imposed and shall
not exceed the prison term specified in the notice provided to the offender
4.
at the sentencing hearing pursuant to [R.C. 2929.19(B)(2)]. (Emphasis
added.)
R.C. 2929.15(B), effective Sept. 29, 2017.
{¶ 7} On October 6, 2017, the trial court held the hearing on appellee’s petition.
Appellant admitted to violating his community control sanction and informed the trial
court, “I would really like to go to ODRC, take care of my time, and just get rid of the
probation.” The transcript of the hearing is in the record, and the trial court made the
following statement:
Mr. Calhoun, I remember when we did the sentencing, and I went
back to the sentencing entry. The Court reviewed 2929.11, 2929.12, but
noted that you previously had served prison time and you committed this
offense while on community control [from another case]. You had a
number of recidivism factors. It’s just the fact that * * * you have * * * the
qualifications [for] the court to impose prison time on the F-5. The court
decided to go with community control. Then right from out of the gate you
didn’t comply with it. Then even here today you said I’d rather go to
prison than comply with it. So based upon all of the statements here today,
based upon the sentencing factors under 2929.11, 2929.12, the Court will
impose nine months in the Ohio Department of Rehabilitation and
Corrections, give you credit for time served. You will serve the remainder
of time.
5.
{¶ 8} By judgment entry journalized on October 11, 2017, the trial court accepted
appellant’s stipulation of violating the terms and conditions of his community control
sanction and adjudged him guilty of the same. The trial court’s entry stated appellant was
no longer amenable to a community control sanction and sentenced him to a nine-month
prison term.
{¶ 9} Thereafter, on October 26, 2017, appellant moved the trial court to vacate
his sentence for a violation of recently revised R.C. 2929.15(B)(1)(c)(i). Appellant
argued that since he only technically violated his community control sanction by failing
to report to his West Virginia probation officer, the maximum prison sentence the trial
court could impose was 90 days. On November 14, 2017, the trial court vacated the
October 11, 2017 sentence and held the hearing on appellant’s motion on December 8,
2017. According to the transcript of that hearing, the trial court made the following
statement:
Previously we were here on a probation violation. The probation
violation was that defendant had failed to comply with probation. And let
me read the corroboration. The probation office was notified by the
Interstate Commission for Adult Offender Supervision that the defendant’s
transfer request was denied. He had * * * asked to transfer to West
Virginia. The reason for the denial was that the subject had failed to report
at the agreed time, date, [and] location, his phone number no longer
worked, and he failed to make contact in any way since the missed
6.
appointment. The subject had already failed to meet requirements. He is
not a good candidate for approval for community supervision. His
whereabouts were unknown. We went through several machinations, I
guess, to get the defendant here. We finally did get him here. And then we
had a hearing on the probation violation. There was a stipulation to the PV,
if I remember right and as I see it, according to the record here. And then
the Court heard evidence in regard to the probation violation. And based
upon 2929.11, 2929.12, 13, 14, ordered that the Defendant was no longer
amendable to community control and imposed a nine-month sentence. That
nine-month sentence was imposed after October 1st when Ohio Revised
Code 2929.15 went into effect.
{¶ 10} Appellant argued that the new language of R.C. 2929.15(B)(1)(c)(i)
prohibited the trial court from imposing any prison sentence greater than 90 days because
his community control sanction violation was only a “technical violation.” Over
appellant’s objections, the trial court disagreed with appellant’s view of a “technical
violation”:
The fact of the matter is that in this case you were placed on
probation. There was no cooperation with any probation conditions, there
was no completion of any of the probation conditions, and you did not do
probation. The Court believes that that is more than a technical violation
under 2929.15(B)(1)(c), and that according to the consideration under
7.
2929.11, 2929.12, the Court will impose the nine months that was
previously imposed.
{¶ 11} By judgment entry journalized on December 14, 2017, subsequently
corrected nunc pro tunc, the trial court accepted appellant’s stipulation of violating the
terms and conditions of community control and adjudged him guilty of the same. The
trial court stated the following in its entry:
The Court found that although a new felony charge had not been
filed against the Defendant, that his absconding from community control
and failing to report or participate in any manner was a threat to public
safety and would be considered a major violation and not a technical
violation.
Based upon all of its considerations the Court determined that
Defendant was subject to the imposition of the reserved prison term and
that it was not limited to 90 days. The court further found that a prison
term was consistent with the purposes and principles of sentencing under
Ohio Revised Code 2929.11 and that Defendant was no longer amenable to
community control. This was because Defendant refused to cooperate or
communicate with the Adult Probation Department when he failed to report
at an agreed date, time and location or participate with authorities in West
Virginia where his probation was to be transferred. Defendant noted his
objection for the record. * * * IT IS THEREFORE ORDERED,
8.
ADJUDGED AND DECREED that the Court hereby imposes a prison
sentence of nine (9) months in the Ohio Department of Rehabilitation and
Corrections for the offense of Forgery, a violation of Ohio Revised Code
Sections 2913.31(A)(3) and 2913.31(C)(1)(b), a felony of the fifth degree.
(Emphasis sic.)
II. Felony Sentence Review
{¶ 12} In support of his assignment of error, appellant argued the trial court’s
sentence was contrary to law as stated in R.C. 2929.15(B)(1)(c)(i). Appellant argued his
failure to report to his probation officer was a “non-reporting violation,” and, therefore, a
“technical violation” because it was not a new felony offense. Appellant urged us to
determine under a plain reading of R.C. 2929.15(B)(1)(c)(i) “an inference that anything
other than a new conviction would be a technical violation.” Appellant cited to State v.
Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512 without explanation.
Presumably he sought to argue that a court must not disturb the plain language of an
unambiguous statute. Id. at ¶ 9. Despite the legislature failing to define “technical
violation” in the statute, appellant argued the statute was unambiguous such that the trial
court committed plain error when it misapplied the statute to him.
{¶ 13} In response, appellee argued the trial court did not commit plain error. The
facts in the case showed appellant absconded, and appellee argued absconding was more
than a “technical violation.” Appellee argued absconding in the context of violating a
community control sanction was similar to absconding in the context of violating a post-
9.
release control sanction, where the Ohio Supreme Court already adopted a definition of a
“technical violation.” The Ohio Supreme Court ruled “technical violations” of the terms
and conditions of a parole agreement were those “which are not criminal in nature, such
as failure to report to the parole officer * * *.” State ex rel. Taylor v. Ohio Adult Parole
Auth., 66 Ohio St.3d 121, 124, 609 N.E.2d 546 (1993). Appellee argued appellant went
to great lengths to avoid meeting with probation during his community control sanction:
1) he requested transfer to West Virginia, which was convenient to his attending a
community college there; 2) he did not appear at the time and place established in West
Virginia and could not be reached or located; 3) he refused to return to Wood County
unless Wood County Adult Probation sent him a check for transportation; and 4) he
evaded Wood County Adult Probation and had to be arrested on a warrant and brought
back to Wood County. Appellee urged us to find that appellant’s actions to immediately
and persistently abscond from his community control sanction requirements were
contrary to the substantive rehabilitative requirements of his sentence, were not a
“technical violation,” and justified his nine-month prison sentence.
{¶ 14} We review a contrary-to-law challenge to a trial court’s felony sentencing
determination for clear and convincing evidence in the record. R.C. 2953.08(G)(2)(b). If
we find clear and convincing evidence the record does not support the sentence, we may
increase, reduce, modify or vacate the felony sentence. State v. Carnicom, 6th Dist.
Wood No. WD-15-077, 2016-Ohio-7290, ¶ 10-11. “Clear and convincing evidence is
that measure or degree of proof which will produce in the mind of the trier of facts a firm
10.
belief or conviction as to the allegations sought to be established. * * * It does not mean
clear and unequivocal.” (Emphasis sic.) Cross v. Ledford, 161 Ohio St. 469, 477, 120
N.E.2d 118 (1954).
{¶ 15} Appellant was originally sentenced on March 21, 2017, for the crime of
forgery, a felony in the fifth degree, and the trial court imposed a four-year community
control sanction and “reserved” a 12-month prison term. For a felony in the fifth degree
the trial court could impose a prison term within the range from six to 12 months. R.C.
2929.14(A)(5), effective Mar. 21, 2017; State v. Salman, 6th Dist. Lucas No. L-17-1223,
2018-Ohio-3516, ¶ 4. In the alternative for a felony in the fifth degree, the trial court
could impose one or more community control sanctions not to exceed five years. R.C.
2929.15(A)(1), effective Sep. 13, 2016. In addition, R.C. 2929.19(B)(4), effective Sep.
28, 2012, required the trial court to impose a community control sanction on appellant if
a community control sanction was not prohibited and if the trial court determined a
community control sanction was appropriate. Moreover, R.C. 2929.19(B)(4) required the
trial court to notify the offender that a violation of the conditions of the community
control sanction could result in one of three sanctions, including a specific prison term
within the range of prison terms pursuant to R.C. 2929.14. Generally, the trial court must
impose either a prison term or a community control sanction when both are possible
sentences for a particular felony offense, absent an express statutory exception. State v.
Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 31. Despite the
confusing language used by the trial court to “reserve” a 12-month prison term, it did not
11.
impose a prison term because the trial court instead imposed the four-year community
control sanction for appellant’s forgery offense, and that sentence was consistent with the
sentencing statutes as of March 21, 2017. Id. at ¶ 12.
{¶ 16} Our review of the record finds clear and convincing evidence supporting
appellant’s felony sentence for forgery, and the sentence was not contrary to law. State v.
Davis, 6th Dist. Lucas No. L-16-1313, 2018-Ohio-2984, ¶ 45-46.
III. Community Control Sanction Revocation Review
{¶ 17} We review a trial court’s decision to revoke a community control sanction
for an abuse of discretion. State v. Clark, 6th Dist. Wood No. WD-12-073, 2013-Ohio-
4831, ¶ 15. Abuse of discretion connotes the record shows the trial court’s decision was
unreasonable, arbitrary or unconscionable. Id. We will not reverse the trial court’s
decision to revoke an offender’s community control sanction if the record contains
substantial evidence of the violation, consisting of more than a mere scintilla of evidence
but less than a preponderance of evidence. Id.{¶ 18} On December 14, 2017, the trial court held a great deal of discretion to
fashion a sentence after finding appellant violated the conditions of community control
pursuant to R.C. 2929.15(B), including a longer period of community control, a more
restrictive community control sanction, or a prison term of any length within the range of
that available for the original offense “up to the maximum term the trial court specified at
the first sentencing hearing.” State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81
N.E.3d 1237, ¶ 13, citing R.C. 2929.15(B) then in effect.
12.
{¶ 19} Appellant’s community control sanction for a felony conviction was not a
prison term and was not probation. R.C. 2929.01(E), effective Oct. 12, 2016. This court
has described probation as a contract for good behavior after a trial court imposed, and
then suspended, a sentence for an underlying crime, and the punishment for the breach of
that contract was to reimpose the original sentence. In re B.H., 6th Dist. Erie No. E-14-
096, 2015-Ohio-2296, ¶ 24. In contrast, a community control sanction was the
appropriate sentence for a crime in lieu of a prison term, and the revocation of the
community control sanction was within the broad discretion of the trial court, resulting in
an appropriate sanction for violating the terms and conditions of the community control
sanction, not for the underlying crime. Id. at ¶ 21, 24-25. Despite their different origins,
community control sanction violations and probation sanction violations can have similar
outcomes. See State v. Cupp, Slip Opinion No. 2018-Ohio-5211, ¶ 19 (“For decades,
prior to what is now referred to as community control, trial courts regularly sentenced
defendants to probation, and as a sanction for violating probation, imposed a period of
incarceration.”).
{¶ 20} The record shows the trial court used the terminology of “community
control” and “probation” interchangeably in the context of both the felony sentencing
proceedings and the subsequent community control violation proceedings. Nevertheless,
when the trial court revoked appellant’s community control sanction and imposed a nine-
month prison term on December 14, 2017, the prison term imposed was punishment for
13.
appellant violating his community control sanction and not for his original underlying
forgery offense.
{¶ 21} To comply with R.C. 2929.19(B)(4) and R.C. 2929.15(B) and impose the
nine-month prison term on December 14, 2017, for appellant’s community control
sanction violation, the trial court must first have provided appellant notice at the felony
sentencing hearing of the specific prison term that may be imposed for violating a
community control sanction. State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814
N.E.2d 837, paragraph two of the syllabus (decided on former R.C. 2929.19(B)(5), now
(B)(4) effective Sep. 28, 2012, and on former R.C. 2929.15(B), now (B)(3) effective Sep.
29, 2017). On March 21, 2017, the trial court complied with R.C. 2929.19(B)(4) and
R.C. 2929.15(B) when it specifically notified appellant that if he violated the conditions
of his community control sanction, the court would impose the “reserved” 12-month
prison term. The nine-month prison term ultimately imposed was within the range
authorized for a felony in the fifth degree pursuant to R.C. 2929.14(A)(5) as authorized
by R.C. 2929.15(B)(3), effective Sep. 29, 2017. See State v. Mincer, 6th Dist. Ottawa No.
OT-18-005, 2018-Ohio-5199, ¶ 15 (trial court is not required to give findings or reasons
for the prison term imposed within the statutory range).
{¶ 22} Nevertheless, appellant argued the trial court committed plain error because
it was not authorized by law on December 14, 2017, to impose a prison term beyond 90-
days pursuant to R.C. 2929.15(B)(1)(c)(i). “Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
14.
Crim.R. 52(B). A finding of plain error requires three determinations: (1) an actual error,
i.e., a deviation from the legal rule, (2) the error was plain, i.e., an obvious defect in the
trial proceedings, and (3) the error must have affected substantial rights. State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. The burden is on the party
asserting plain error. Id. at ¶ 17. “Plain error does not exist unless it can be said that but
for the error, the outcome below would clearly have been otherwise.” State v. Jells, 53
Ohio St.3d 22, 24, 559 N.E.2d 464 (1990), citing State v. Long, 53 Ohio St.2d 91, 93, 372
N.E.2d 804 (1978), paragraph two of the syllabus and State v. Greer, 39 Ohio St.3d 236,
252, 530 N.E.2d 382 (1988) (“Absent objection, the error will not affect the sentence
unless it is clear beyond a reasonable doubt that the result would have been otherwise
without the error.”).
{¶ 23} Since the September 29, 2017 effective date of R.C. 2929.15(B)(1)(c)(i),
we are guided by the mandate that we must apply the amended statute in effect at the
time of sentencing, particularly where the punishment for any offense is reduced. State v.
Gillespie, 6th Dist. Lucas No. L-05-1168, 2006-Ohio-1394, ¶ 11, citing R.C. 1.58(B).
We are also mindful that a trial court may only impose a sentence that is provided for by
the applicable statute, as written. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35
N.E.3d 512, at ¶10-12.
{¶ 24} “A question of statutory construction presents an issue of law that appellate
courts review de novo.” City of Toledo v. Corr. Comm. of Northwest Ohio, 2017-Ohio-
9149, 103 N.E.3d 209, ¶ 22 (6th Dist.). We review statutory language for plain meaning,
15.
unless there is ambiguity. State v. Polus, 145 Ohio St.3d 266, 2016-Ohio-655, 48 N.E.3d
553, ¶ 7. If we find ambiguity, we are directed to determine legislative intent per the
non-exhaustive guidance of R.C. 1.49. Id. If we find the statutory language is clear and
unambiguous, we must apply the statute as written. Id. “Strict construction should not
override common sense and evident statutory purpose.” State v. Wheeling & Lake Erie
Ry. Co., 152 Ohio App.3d 24, 2003-Ohio-1420, 786 N.E.2d 504, ¶ 10 (6th Dist.), citing
State v. Sway, 15 Ohio St.3d 112, 116, 472 N.E.2d 1065 (1984). We construe statutory
language to effect a just and reasonable result, and where statutes relate to the same
subject matter, as consistent rather than inconsistent. State v. Perz, 173 Ohio App.3d 99,
2007-Ohio-3962, 877 N.E.2d 702, ¶ 28 (6th Dist.).
{¶ 25} R.C. 2929.15(B)(1)(c)(i) as now written would apply in this case where the
record contained substantial evidence of all of the following: (1) a community control
sanction imposed for a felony conviction of the fifth degree, (2) a technical violation of
the conditions of the community control sanction, (3) a prison term imposed on or after
September 29, 2017, for a technical violation, and (4) the prison term exceeding 90 days
for the violation. Our first step is to determine if each statutory element is clear and
unambiguous and supported by the record. If so, then it will be unnecessary to evaluate
any ambiguity.
{¶ 26} We find the record contains substantial evidence of the clear and
unambiguous first and fourth elements of R.C. 2929.15(B)(1)(c)(i). For the first element,
on March 21, 2017, the trial court imposed on appellant a community control sanction for
16.
his forgery conviction, a felony of the fifth degree. For the fourth element, we find the
trial court imposed a nine-month prison term on December 14, 2017, for appellant’s
violation of his community control sanction.
{¶ 27} We find the second and third elements of R.C. 2929.15(B)(1)(c)(i) as now
written require predicate determination of what constitutes a “technical violation” of the
community control sanction, an ambiguous phrase. Appellant and appellee differ on
whether the facts in this case either meet the intended definition of a “technical
violation,” as advocated by appellant, or do not meet the intended definition of a
“technical violation,” as advocated by appellee. If the record in this case lacks substantial
evidence of a “technical violation,” then R.C. 2929.15(B)(1)(c)(i) does not apply.
{¶ 28} The General Assembly did not define “technical violation” anywhere in the
new R.C. 2929.15(B)(1)(c). However, courts of appeals have sought to define “technical
violation” for the purposes of R.C. 2929.15(B)(1)(c) using the definition adopted by the
Ohio Supreme Court in Taylor, 66 Ohio St.3d 121, at 124, 609 N.E.2d 546, for a parole
revocation: “not criminal in nature.” State v. Abner, 4th Dist. Adams Nos. 18CA1061,
18CA1062, 2018-Ohio-4506, ¶ 12-16 (use of heroin was not a technical violation); State
v. Cozzone, 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-2249, ¶ 38-39 (overdosing
on heroin was not a technical violation); State v. Pino, 11th Dist. Lake No. 2017-L-171,
2018-Ohio-2825, ¶ 6-14 (breaking any law and using alcohol were technical violations);
Amburgey v. Ohio Adult Parole Auth., 12th Dist. Madison No. CA2001-07-016, 2001-
Ohio-8695, *7-8 (Kentucky conviction for robbery was not a technical violation in Ohio).
17.
{¶ 29} Courts of appeals have also sought to define “technical violation” outside
of applying Taylor and, instead, for purposes of R.C. 2929.15(B) viewing the nature of
the community control sanction violated as either a specifically tailored substantive
rehabilitative requirement or merely a general administrative requirement to facilitate
supervision during the period of the sanction. State v. Nelson, 2d Dist. Champaign No.
2018-CA-5, 2018-Ohio-4763, ¶ 32 (no-contact sanction was a specifically tailored
substantive rehabilitative requirement and not a technical violation); State v. Blake, 4th
Dist. Hocking No. 18CA6, 2018-Ohio-5413, ¶ 11 (failure to complete substance abuse
treatment at community based correctional facility was a “special condition of
community control” and not a technical violation); State v. Cearfoss, 5th Dist. Stark No.
2004CA00085, 2004-Ohio-7310, ¶ 20-23 (failure to follow verbal order of probation
officer was a technical violation, but access to pornographic material and possessing
firearms or dangerous weapons were not technical violations); State v. Schuttera, 5th
Dist. Ashland No. 18-COA-007, 2018-Ohio-3305, ¶ 17 (no technical violation implied
because no abuse of discretion when trial court applied R.C. 2929.15(B)(1)(c)(ii) and
(B)(3)); State v. Jenkins, 2d Dist. Champaign No. 2005-CA-22, 2006-Ohio-2639, ¶ 15
(failure to notify parole officer before moving from residence containing a convicted
felon was a technical violation); State v. Mannah, 5th Dist. Fairfield No. 17-CA-54,
2018-Ohio-4219, ¶ 14-15 (failure to complete drug treatment at community based
correctional facility was a specifically tailored substantive rehabilitative requirement and
not a technical violation); State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-
18.
Ohio-2672, ¶ 17 (failure to complete substance abuse treatment at community based
correctional facility was a specifically tailored substantive rehabilitative requirement and
not a technical violation); State v. Walsson, 12th Dist. Clermont No. CA2018-02-004,
2018-Ohio-4485, ¶ 13 (committing new felonies were not technical violations); State v.
Shaffer, 12th Dist. Clermont No. CA2017-12-064, 2018-Ohio-5297, ¶ 17 (committing a
new felony was not a technical violation); State v. Showalter, 12th Dist. Clermont No.
CA2018-04-023, 2018-Ohio-5299, ¶ 13-14 (committing a new felony was not a technical
violation).
{¶ 30} As stated by the Fifth District Court of Appeals, “The [General
Assembly’s] choice of the term ‘technical’ implies it has meaning distinct from ‘non-
criminal’ violations.” Mannah at ¶ 14. We agree. As stated by the Twelfth District
Court of Appeals, and followed by the Second, Fourth and Fifth District Court of
Appeals, where “the special condition was a substantive rehabilitative requirement which
addressed a significant factor contributing to appellant’s criminal conduct” the violation
“cannot be considered a technical violation of community control.” Davis at ¶ 18; Nelson
at ¶ 32; Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062, 2018-Ohio-4506, at ¶ 13;
Mannah at ¶ 13. We also agree. Thus, we find that appellant’s non-felony conduct was
not dispositive of the intended definition of “technical violation” of R.C.
2929.15(B)(1)(c). We find that common sense and the evident purpose for trial courts to
retain broad discretion to both determine revoking a community control sanction and then
to fashion an appropriate sanction for that violation lead us to view the General Assembly
19.
did not intend “technical violations” to impede a court’s discretion to sanction under the
totality of the circumstances to specifically tailor substantive rehabilitative requirements
designed to address the offender’s conduct.
{¶ 31} In this case appellant did not object to receiving the felony sentence of a
community control sanction with 13 terms and conditions. At his March 17, 2017
sentencing hearing, appellant specifically represented to the trial court he wanted to
transfer his community control supervision to West Virginia because: (1) he lived in
Huntington, West Virginia; (2) he was a full-time student in West Virginia studying
electrical engineering and receiving decent grades; (3) he worked for Buckeye Defense in
West Virginia selling prepaid legal services door to door; and (4) he had sole custody of
two children aged ten and eight. Appellant expressed his concerns that unless his
community control supervision was transferred to West Virginia, he would lose his job,
lose his college enrollment, and lose custody of his children. Despite significant
reservations with appellant’s past criminal record and lack of remorse for the current
offense, the trial court imposed the four-year community control sanction and specifically
tailored a number of conditions to appellant, including maintaining his employment and
college enrollment and authorizing the transfer of his community control supervision to
West Virginia.
{¶ 32} Thereafter, appellant admitted to absconding from reporting to his
probation officer in West Virginia, which was a clear violation of his community control
sanction. The record contains the October 8, 2017 sentencing hearing transcript and
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reveals how appellant went to significant lengths to elude supervision in West Virginia
and to frustrate his appearance before the Wood County Court of Common Pleas. We
find absconding applies in this situation where appellant while on a community control
sanction willfully failed to report for supervision or otherwise comply with the terms and
conditions of his community control sanction. See In re Townsend, 51 Ohio St.3d 136,
136-137, 554 N.E.2d 1336 (1990) (interpreting absconds as used in R.C. 2951.07); see
also State v. Mack, 6th Dist. Lucas No. L-11-1065, 2012-Ohio-2960, ¶ 6. This court
previously held that a willful violation of the conditions of a probation sanction was not a
technical violation. State v. Puhl, 6th Dist. Wood No. WD-96-059, 1997 Ohio App.
LEXIS 1770, *5-6 (May 2, 1997).
{¶ 33} We find appellant requested and obtained from the trial court a specifically
tailored community control sanction in West Virginia. We find the sanction in West
Virginia was special to appellant as a substantive rehabilitative requirement to address
significant factors that might reverse appellant’s path of criminal conduct, namely to
maintain access to a good education, full time lawful employment, and custody of his two
minor children. We find appellant willfully absconded from community control
supervision in West Virginia, which was not a “technical violation” pursuant to R.C.
2929.15(B)(1)(c)(i). Having found no substantial evidence in the record of a “technical
violation” of appellant’s community control sanction, we further find the trial court did
not commit plain error, did not abuse its discretion, and complied with the statutory
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requirements in effect at the time when it imposed a nine-month prison term for violating
the terms and conditions of his community control sanction.
{¶ 34} Appellant’s sole assignment of error is not well taken.
IV. Conclusion
{¶ 35} On consideration whereof, we find that substantial justice has been done in
this matter and the sentencing judgment of the trial court to be lawful. The judgment of
the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay costs
of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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