State v. Showalter

[Cite as State v. Showalter, 2018-Ohio-5299.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-04-023
: OPINION
- vs - 12/28/2018
:
RICHARD G. SHOWALTER, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2013 CR 000123
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for appellant
PIPER, J.
{¶ 1} Appellant, Richard Showalter, appeals the sentence imposed by the Clermont
County Court of Common Pleas after the court revoked his community control.
{¶ 2} Showalter pled guilty to breaking and entering and cocaine possession and was
sentenced to community control. Showalter violated the terms of his community control
twice, and the trial court continued Showalter's community control sanctions on both
Clermont CA2018-04-023
occasions. However, upon Showalter's third violation of community control, the trial court
revoked community control and imposed a prison sentence upon him.
{¶ 3} During sentencing, the trial court determined that Showalter was on community
control for two fifth-degree felonies and had committed an additional felony offense during
that time. The trial court therefore found that Showalter was not subject to R.C.
2929.15(B)(1)(c)(i), which limits a prison sentence to 90 days for a technical violation of
community control imposed for a fifth-degree felony. The court then sentenced Showalter to
nine months on each count and ordered the sentences to be served consecutively for an
aggregate sentence of 18 months. Showalter now appeals his sentence, raising the following
assignment of error:
{¶ 4} 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.
{¶ 5} Showalter argues in his assignment of error that the trial court erred in
sentencing him to an 18-month sentence.
{¶ 6} 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. 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."
{¶ 7} "The appellate court's standard for review is not whether the sentencing court
abused its discretion." Marcum at ¶ 9. Instead, R.C. 2953.08(G)(2) provides that an
appellate court may only increase, reduce, or modify a sentence or may vacate the sentence
and remand the matter for resentencing if the court finds by clear and convincing evidence
that the record does not support the sentencing court's findings, or that the sentence is
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Clermont CA2018-04-023
otherwise contrary to law. R.C. 2953.08(G)(2)(a)-(b).
{¶ 8} 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. CA2015-06-100, 2016-
Ohio-2890, ¶ 8.
{¶ 9} Essentially, Showalter contends his sentence is contrary to law because the
trial court sentenced him outside the permissible statutory range since R.C.
2929.15(B)(1)(c)(i) limits a sentence to 90 days if the defendant violates the conditions of a
community control sanction imposed for a fifth-degree felony. However, the statute
specifically 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 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.
{¶ 10} The trial court made two findings regarding the inapplicability of R.C.
2929.15(B)(1)(c)(i) to Showalter. First, the trial court found the statutory provision did not
apply to Showalter because he was on community control for two separate offenses, as
opposed to a single fifth-degree felony. Second, the statute did not apply to Showalter
because his violations of community control included his continued use of cocaine, which
constituted a new felony criminal offense.
{¶ 11} Showalter 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 Showalter
based on the plain language of the statute. State v. Walsson, 12th Dist. Clermont No.
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Clermont CA2018-04-023
CA2018-02-004, 2018-Ohio-4485.
{¶ 12} R.C. 2929.15(B)(1)(c)(i) provides that a prison term imposed after revocation of
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 * * *."
(Emphasis added.) 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 record clearly indicates that part of Showalter's violations of his community
control included his continued use of cocaine. R.C. 2925.11(C)(4)(a) provides that cocaine
possession constitutes a felony. Thus, Showalter committed a felony while subject to his
imposed fifth-degree felony community control sanction. Therefore, the prison term limitation
of R.C. 2929.15(B)(1)(c)(i) is explicitly inapplicable to Showalter and the trial court did not err
in imposing two consecutive nine-month sentences.
{¶ 14} Further, we note that the limitations in sentencing to a prison term as found in
R.C. 2929.15(B)(1)(c)(i) is applicable only if the violation of community control is for "any
technical violation" of the community control sanction. Here, there was nothing in the record
to support an argument the trial court considered Showalter's violation to be a "technical
violation."
{¶ 15} Since Showalter's violation was not a technical violation and additionally
because he committed a new felony offense, as determined by the trial court, Showalter's
sentence is not clearly and convincingly contrary to law. Showalter's sole assignment of error
is, therefore, overruled.
{¶ 16} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.
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