State v. Saurber

[Cite as State v. Saurber, 2021-Ohio-464.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-04-057
: OPINION
- vs - 2/22/2021
:
AMANDA RAE SAURBER, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR-2019-04-0513
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Michele Temmel, 6 S. Second Street, #305, Hamilton, Ohio 45011, for appellant
PIPER, P.J.
{¶1} Appellant, Amanda Saurber, appeals the imposition of a prison sentence by
the Butler County Court of Common Pleas after the court revoked her community control.
{¶2} While working at a car wash, Saurber stole a checkbook from the console of
a customer's vehicle and tried to cash the victim's checks. Saurber was charged with
Butler CA2020-04-057
receiving stolen property, theft, and forgery. Saurber pled guilty to theft, a fifth-degree
felony, and the remaining charges were dismissed.
{¶3} The trial court sentenced Saurber to a year of community control. As part of
the community control sanctions, Saurber was prohibited from possessing, using, or
purchasing any drug or controlled substance. She was also ordered to report to the
probation department, maintain employment, and make payments toward her court-ordered
financial sanctions. The trial court also warned Saurber that if she violated the terms of her
community control, she would serve a year in prison.
{¶4} Approximately one month after sentencing, Saurber began violating the terms
of her community control, including failing to report to the probation department as ordered,
failing to make payments toward her financial obligations, failing to verify that she was
employed, and testing positive for the use of multiple controlled substances.
{¶5} The trial court held a community control violation hearing, during which
Saurber admitted to several violations of her community control, including the use of
opiates, marijuana, and fentanyl. The trial court found Saurber in violation of her community
control terms and revoked community control, imposing the one-year prison sentence
addressed at Saurber's sentencing hearing. Saurber now appeals the trial court's sentence,
raising the following assignment of error:
{¶6} THE TRIAL COURT'S SENTENCE IS CONTRARY TO LAW BECAUSE IT
IMPOSED A PRISON TERM IN EXCESS OF THE 90-DAY STATUTORY MAXIMUM FOR
A TECHNICAL VIOLATION OF COMMUNITY CONTROL.
{¶7} Saurber argues in her assignment of error that the trial court erred in
sentencing her to one year in prison because her violations were technical and thus subject
to a 90-day maximum sentence.
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{¶8} As with all felony sentences, we review the trial court's sentencing decision
for a community control violation under the standard set forth by R.C. 2953.08(G)(2). State
v. Starr, 12th Dist. Clermont Nos. CA2018-09-065 and CA2018-09-066, 2019-Ohio-2081, ¶
8. Pursuant to that statute, this court may modify or vacate a sentence only if, by clear and
convincing evidence, "the record does not support the trial court's findings under relevant
statutes or that the sentence is otherwise contrary to law." State v. Baker, 12th Dist.
Clermont No. CA2018-06-042, 2019-Ohio-2280, ¶ 17.
{¶9} 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. Williams, 12th Dist. Butler No. CA2020-01-009, 2020-
Ohio-5228, ¶ 12.
{¶10} The record clearly indicates that the trial court considered the statutory factors
and imposed postrelease control properly. However, Saurber contends her sentence is
contrary to law because the trial court sentenced her outside the permissible statutory
range.
{¶11} R.C. 2929.15(B)(1)(c) permits a trial court to impose a prison term if a
defendant violates the conditions of a community control sanction. However, a prison term
for the violation of a community control sanction imposed for a fifth-degree felony may not
exceed 90 days if the violation was either a "technical violation" or any violation of law that
is not a felony. R.C. 2929.15(B)(1)(c)(i).
{¶12} The Ohio Supreme Court has recently addressed the distinction
between technical and nontechnical violations of community control in State v. Nelson, Slip
Opinion No. 2020-Ohio-3690. Therein, the court held that a nontechnical violation is
a violation concerning "a condition of community control that was 'specifically tailored to
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address' matters related to the defendant's misconduct or if it can be deemed a 'substantive
rehabilitative requirement which addressed a significant factor contributing to' the
defendant's misconduct." Id. at ¶ 26, quoting State v. Davis, 12th Dist. Warren No.
CA2017-11-156, 2018-Ohio-2672, ¶ 17. Conversely, a violation of community control is
considered a technical violation "when the condition violated is akin to an administrative
requirement facilitating community control supervision." Nelson at ¶ 26.
{¶13} After reviewing the record, we find that the trial court's sentence was not
contrary to law. During the community control revocation hearing, Saurber admitted, and
the trial court found, that she violated the conditions of her community control by using
controlled substances, including opiates, marijuana, and fentanyl. Possession of fentanyl
is a felony of the fifth degree. R.C. 2925.11(C)(11)(a). Thus, the non-felony provision within
R.C. 2929.15(B)(1)(c)(i) does not apply to limit Saurber's sentence to 90 days.
{¶14} Nor does the technical violation provision apply where the trial court
specifically ordered Saurber to avoid drug usage in order to address matters related to her
theft offense. Saurber explained that she was using drugs at the time she stole the victim's
checks and tried to cash them. Thus, the trial court tailored one of the community control
sanctions to preclude Saurber's drug usage as a rehabilitative requirement to address a
significant factor that contributed to her theft offense. Saurber's drug usage while on
community control was not akin to an administrative requirement to facilitate her community
control supervision. Instead, Saurber was specifically ordered not to engage in drug usage
as a condition of her community control, and she freely admitted to violating that, and other
terms, of her community control sanctions.
{¶15} It is undisputed that Saurber committed a nontechnical violation of law while
under her imposed fifth-degree felony community control sanction that constituted a new
felony criminal offense. Therefore, the prison term limitation of R.C. 2929.15(B)(1)(c)(i) to
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90 days is inapplicable to Saurber. The trial court did not impose a sentence that is contrary
to law, and Saurber's single assignment of error is overruled.
{¶16} Judgment affirmed.
HENDRICKSON and M. POWELL, JJ., concur.
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