State v. Everett

[Cite as State v. Everett, 2023-Ohio-1243.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-22-27
v.
ROBERT R. EVERETT, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 21-CR-0354
Judgment Affirmed
Date of Decision: April 17, 2023
APPEARANCES:
Howard A. Elliott for Appellant
Bailey Higgins for Appellee
Case No. 3-22-27
MILLER, P.J.
{¶1} Defendant-appellant, Robert R. Everett, appeals the June 8, 2022
judgment of sentence of the Crawford County Court of Common Pleas. For the
reasons that follow, we affirm.
Facts & Procedural History
{¶2} On October 12, 2021, the Crawford County Grand Jury indicted Everett
on a single count of aggravated possession of drugs in violation of R.C. 2925.11(A),
(C)(1)(a), a fifth-degree felony. On October 14, 2021, Everett appeared for
arraignment and pleaded not guilty to the count in the indictment.
{¶3} A change-of-plea hearing was held on December 9, 2021, at which
Everett withdrew his previous not-guilty plea and entered a guilty plea to the count
in the indictment. The trial court accepted Everett’s guilty plea and found him
guilty. The trial court proceeded immediately to sentencing where it imposed a
jointly-recommended sentence of five years of community control with the special
condition that Everett immediately complete a drug and alcohol assessment and
complete an alcohol and drug treatment program. The trial court informed Everett
that, in the event he fails to successfully complete community control, he was
subject to up to 12 months in prison.
{¶4} On December 13, 2021, Everett failed to report to his scheduled
appointment with his supervising probation officer and a warrant was subsequently
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issued for Everett’s arrest. On March 21, 2022, Everett was arrested on the warrant
and a motion was filed requesting the trial court issue an order requiring Everett to
show cause why his community control should not be revoked. Specifically, the
motion alleged that Everett violated the terms of his community control by failing
to appear for the December 13, 2021 scheduled office visit with his probation officer
and by leaving the state without the written permission of his supervising probation
officer. At an initial appearance held later that day, Everett entered a denial to the
probation violation.
{¶5} The following day, another show-cause motion was filed alleging that
after his arrest on March 21, 2022, Everett refused to provide a urine sample for a
drug screen as ordered by his supervising probation officer.
{¶6} On June 8, 2022, Everett entered admissions acknowledging the
violations of his community control as outlined in the March 21 and March 22, 2022
filings. The trial court accepted Everett’s admission and found him to have violated
his community control. With respect to sentencing, the parties did not agree whether
the violations were technical or nontechnical, and each party argued their respective
positions. The trial court determined that the violations were nontechnical
violations of Everett’s community control and sentenced him to eight months in
prison. The trial court filed its judgment entry of sentencing on June 8, 2022.
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{¶7} On July 6, 2022, Everett filed a notice of appeal. He raises the
following assignment of error for our review:
Assignment of Error
In as much as the community control violation of the
Appellant/Defendant is triggered upon him having relocated
himself to a different [state] while on community control, as such,
it was a condition tailored to facilitate the stated requirements of
community control supervision and not a criminal act as such he
would have been guilty of a technical violation of his community
control conditions for which the punishment is limited by Ohio
Revised Code § 2929.15(B); that of ninety (90) days of
incarceration and the trial court’s imposition of a longer term of
incarceration was contrary to law requiring the matter to be
reversed and remanded to the trial court for further proceedings.
{¶8} In his assignment of error, Everett contends the trial court erred by
finding his community-control violations were nontechnical. Specifically, Everett
argues that his violations are technical violations, which subjects the trial court to a
sentencing cap for a fifth-degree felony under R.C. 2929.15(B)(1)(c)(i), thereby
rendering his sentence of eight months in prison contrary to law.
Applicable Law
{¶9} R.C. 2929.15(B) governs the penalties available to a sentencing court
when an offender violates community control. In 2017, the General Assembly
amended R.C. 2929.15(B) to place limitations on prison terms imposed for
violations of a community-control sanction for certain fourth- or fifth-degree
felonies. See 2017 H.B. 49. R.C. 2929.15(B) provides, in pertinent part:
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(B)(1) [I]f 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 on 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 imposed under this division is subject to the following
limitations and rules, 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, the prison term shall not exceed ninety days[.]
{¶10} Thus, a prison term imposed pursuant to a technical violation of the
conditions of a community-control sanction is contrary to law if it exceeds the
applicable statutory limitations established in R.C. 2929.15(B)(1)(c). State v.
Whitaker, 6th Dist. Wood Nos. WD-19-038, WD-19-039, and WD-19-040, 2020-
Ohio-4249, ¶ 12.
{¶11} In State v. Nelson, 2020-Ohio-3690, the Supreme Court of Ohio held
a violation is “nontechnical” if, considering the totality of the
circumstances, the violation concerns a condition of community
control that was “specifically tailored to address” matters related to
the defendant’s misconduct or if it can be deemed a “substantive
rehabilitation 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, 18. In contrast, “a violation is ‘technical’ when the condition
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violated is akin to ‘an administrative requirement facilitating community control
supervision.’” Id., quoting Davis at ¶ 18. “There is no single factor that determines
whether a violation is technical or nontechnical.” Id. “[T]he statute allows the trial
court to engage in a practical assessment of the case before it, i.e., to consider the
nature of the community-control condition at issue and the manner in which it was
violated, as well as any other relevant circumstances in the case.” Id. As the
Supreme Court noted, “a trial court may find a violation to be more serious—and
therefore nontechnical—based in part on the manner in which the violation of the
community-control condition occurred; it is not constrained to reviewing only the
nature of the condition itself.” (Emphasis sic.) Id. at ¶ 23.
{¶12} Following Nelson, the General Assembly amended R.C. 2929.15 (on
April 12, 2021) to define a “technical violation” under the statute. See 2020 H.B.
1. Nevertheless, the holding in Nelson remains instructive. State v. Crose, 3d Dist.
Crawford No. 3-22-34, 2023-Ohio-880, ¶ 12. R.C. 2929.15(E), as amended, defines
a “technical violation” as:
a violation of the conditions of a community control sanction imposed
for a felony of the fifth degree, or for a felony of the fourth degree that
is not an offense of violence and is not a sexually oriented offense,
and to which neither of the following applies:
(1) The violation consists of a new criminal offense that is a felony
or that is a misdemeanor other than a minor misdemeanor, and the
violation is committed while under the community control sanction.
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(2) The violation consists of or includes the offender’s articulated or
demonstrated refusal to participate in the community control sanction
imposed on the offender or any of its conditions, and the refusal
demonstrates to the court that the offender has abandoned the objects
of the community control sanction or condition.
R.C. 2929.15(E)(1)-(2).
Analysis
{¶13} A review of the record indicates that on December 12, 2021, Everett
sent an email to his supervising probation officer requesting permission to travel to
his father’s residence in Lansing, Michigan. Before receiving a response, Everett
left the State of Ohio, thereby violating the terms of his community control. On
December 13, 2021, he failed to appear for a scheduled office visit with his
supervising probation officer, and a warrant was issued for his arrest. Everett did
not communicate with his probation officer for 98 days, and at that time, his
probation officer did not know Everett’s whereabouts. On March 21, 2022, Everett
was arrested in Ohio on the outstanding warrant. However, when Everett made
contact with his probation officer following his arrest, Everett refused to provide a
urine sample for a drug screen.
{¶14} Everett and his trial counsel argued that Everett traveled to Michigan
because his home in Ohio was without heat and electricity, and he felt that his only
option was to travel to his father’s residence in Michigan. Additionally, Everett
claimed he was assisting in caring for his father’s medical needs.
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{¶15} After considering the parties’ arguments in great detail, the trial court
determined that Everett’s community-control violations were nontechnical. The
trial court reasoned that Everett was only on community control for two weeks when
he absconded for 98 days. Moreover, Everett did not turn himself in or make contact
with his probation officer when he returned to Ohio. Rather, his first contact with
his probation officer was subsequent to his arrest on the outstanding warrant. The
trial court also noted that Everett had a previous drug-related offense in Michigan,
and accordingly, the court was concerned that Everett’s out-of-state travel was, at
least in part, motivated by his drug-related contacts in Michigan. The trial court
indicated that Everett’s refusal to complete the requested drug screen did nothing to
assuage these concerns.
{¶16} After reviewing the record and relevant case law, we do not find the
trial court abused its discretion by classifying Everett’s community-control
violation as nontechnical. The overall pattern of Everett’s behavior and the
cumulative effect of the violations demonstrated a failure to participate in his
community-control sanction as a whole. See Crose, 2023-Ohio-880, at ¶ 13-14
(Crose’s failure to contact her probation officer for three weeks upon her release
“was a failure to make herself available for supervision entirely” and was a
nontechnical violation of her community-control sanctions); State v. Sanchez
Martinez, 1st Dist. Hamilton C-180580, 2019-Ohio-3350, ¶ 11 (Sanchez Martinez’s
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community-control violation was nontechnical where he failed to notify his
supervising officer of his new address, failed to report to the probation department
on two occasions, and was charged with four misdemeanor offenses); State v. Smith,
12th Dist. Clermont No. CA2020-08-044, 2021-Ohio-630, ¶ 24-25 (holding that
Smith’s failure to report to his supervising officer for almost two months constituted
a nontechnical violation of his community control). Accordingly, we find the 90-
day prison term limitation of R.C. 2929.15(B)(1)(c)(i) was inapplicable.
{¶17} Everett’s assignment of error is overruled.
{¶18} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Crawford County
Court of Common Pleas.
Judgment Affirmed
ZIMMERMAN and WILLAMOWSKI, J.J., concur.
/jlr
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