State v. Elliot

[Cite as State v. Elliot, 2023-Ohio-1459.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220339
TRIAL NO. B-2105828
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JAMES ELLIOTT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 3, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant James Elliott appeals from the trial court’s
judgment revoking his community control and imposing a sentence of 18 months’
imprisonment.
{¶2} Elliott argues on appeal that the trial court erred in finding him guilty
of a community-control violation where there was not sufficient evidence to find that
he violated the terms and conditions of his community control. He additionally
challenges the sentence imposed for the violation, arguing that the trial court erred by
imposing an 18-month prison sentence for a technical violation on a felony of the
fourth degree, and that the court failed to strictly comply with the statutory
notification requirements in R.C. 2929.19(B)(4) when imposing sentence. Finding
Elliott’s arguments to be without merit, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶3} In February of 2022, Elliott pled guilty to burglary, a fourth-degree
felony in violation of R.C. 2911.12(B). The trial court sentenced Elliott to a three-year
period of community control. At the sentencing hearing, the trial court made the
following statements concerning the imposition of community control:
I’m going to place you on community control, but you are going to go in
and you’re going to stay in the Justice Center and complete the Men’s
Extended Treatment Program.
Once you are released from the Men’s Extended Treatment Program,
only if you successfully complete it—if you don’t, I’m just going to send
you to prison if you come back here on a violation because you haven’t
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OHIO FIRST DISTRICT COURT OF APPEALS
done what you’re supposed to do in the program—once you’re released
on probation, I’m going to recommend MDO probation for you.
And I want probation to refer you to the halfway house at the Talbert
House program so they can get you into transitional housing.
So you’re going from the jail and you’re going to go into supervised
housing from the jail on to MDO probation.
I want you to follow through with any recommended mental health
treatment and/or drug treatment once you’re released from the Justice
Center, and you’ll be subject to random drug and alcohol screens once
you’re released as well.
I’m going to order restitution, I believe in the amount of $225.
* * *
You are to stay away from the Hubers and their property. You’re not to
have any contact with them, and you’re not to go near their home ever
again.
* * *
Like I said, this is a felony of the fourth degree. It carries anywhere
between nine—I’m sorry—six and 18 months at the Ohio Department of
Corrections.
So if you come back on any violation, especially one where you’re not
fully participating in the programming that’s been recommended for
you, you’re just going to go do the time at the Ohio Department of
Corrections.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The sentencing entry reflected the information that the trial court
informed Elliott of at the sentencing hearing, including the advisement that if he
violated the terms or conditions of his community control, he would be sentenced to a
period of six to 18 months in prison.
{¶5} In April of 2022, a community-control-sanction violation was filed
against Elliott. The violation alleged that he failed to comply with the court-ordered
Men’s Extended Treatment Program. Elliott pled no contest to the community-control
violation, and the trial court found him guilty. The court’s sentencing entry stated that
Elliott was restored to community control under the same conditions that had
previously been imposed. It additionally stated that Elliott would be sentenced to a
period of six to 18 months in prison if he again violated the terms and conditions of
his community control.
{¶6} In June of 2022, another community-control-sanction violation was
filed against Elliott, alleging that he failed to report to probation for his initial
interview after being released from the Justice Center, failed to pay restitution, and
failed to comply with court-ordered treatment. At a hearing on the violation, Elliott
pled guilty. The trial court sentenced him to 18 months’ imprisonment.
Guilty Plea Precludes Challenge
{¶7} In his first assignment of error, Elliott argues that the trial court erred
in finding him guilty of a community-control violation because the record did not
contain substantial evidence to support that finding. Because a community-control-
revocation hearing is not a criminal trial, the state must present substantial evidence
of the violation, rather than prove that the terms of community control were violated
beyond a reasonable doubt. State v. Day, 1st Dist. Hamilton No. C-210503, 2022-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-1954, ¶ 10. We review a trial court’s decision to revoke community control for
an abuse of discretion. Id.{¶8} As set forth above, Elliott pled guilty to the community-control
violation. As such, he cannot now argue that there was not a sufficient basis in the
record to find him guilty of the violation. “A defendant may elect to forgo a hearing on
the merits of the alleged community control violations and admit to the violations.”
State v. McCoy, 2d Dist. Champaign No. 2020-CA-13, 2021-Ohio-456, ¶ 35, quoting
State v. Norman, 2d Dist. Clark Nos. 2017-CA-40 and 2017-CA-41, 2018-Ohio-993, ¶
16-20. As this court has held, “if the defendant opts to enter a guilty or a no-contest
plea to the community-control violation, the need for an evidentiary hearing is
obviated.” State v. Alexander, 1st Dist. Hamilton No. C-070021, 2007-Ohio-5457, ¶
3. Having pled guilty to the violation as alleged, Elliott eliminated the need for the
state to present evidence of the violation, and he cannot now challenge the sufficiency
of the evidence supporting it.
{¶9} We accordingly hold that the trial court did not err in finding Elliott
guilty of a community-control violation, and we overrule the first assignment of error.
Technical v. Nontechnical Violations
{¶10} In his second assignment of error, Elliott argues that the trial court
erred by imposing an 18-month prison sentence as a community-control-violation
sanction on a felony of the fourth degree.
{¶11} Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a
defendant’s sentence only if we clearly and convincingly find that the record does not
support the trial court’s findings under relevant statutes (specifically division (B) or
(D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I)
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OHIO FIRST DISTRICT COURT OF APPEALS
of section 2929.20 of the Revised Code) or that the sentence is contrary to law. State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23; State v.
White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st Dist.).
{¶12} Elliott contends that because his community-control violation was a
technical violation, and because the offense that he was convicted of was a felony of
the fourth degree, the trial court was not permitted to impose a maximum sentence.
He relies on R.C. 2929.15(B)(1)(c)(ii), which 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
fourth degree that is not an offense of violence and is not a sexually
oriented offense, the prison term shall not exceed one hundred eighty
days, provided that if the remaining period of the community control at
the time of the violation or the remaining period of the reserved prison
sentence at that time is less than one hundred eighty days, the prison
term shall not exceed the length of the remaining period of community
control or the remaining period of the reserved prison sentence.
{¶13} The validity of Elliott’s argument hinges on whether the community-
control violation to which he pled guilty is properly classified as a technical or non-
technical violation. In State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165
N.E.3d 1110, the court discussed the distinction between these two types of violations.
It explained that a determination as to whether a violation is technical or nontechnical
does not depend on whether the conduct underlying the violation is criminal. Id. at ¶
26. At the time that Nelson was decided, R.C. 2929.15 did not define the term
“technical violation.” Id. at ¶ 18. In the absence of a statutory definition, the court
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OHIO FIRST DISTRICT COURT OF APPEALS
explained that a violation would be considered technical when “the condition violated
is akin to ‘an administrative requirement facilitating community control supervision.’
” Id. at ¶ 26, quoting State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-
2672, ¶ 18. In contrast, a nontechnical violation is one that “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 rehabilitative
requirement which addressed a significant factor contributing to’ the defendant’s
misconduct.” Id., quoting Davis at ¶ 17-18.
{¶14} As noted by the Third District in State v. Crose, 3d Dist. Crawford No.
3-22-34, 2023-Ohio-880, ¶ 12, the General Assembly has since amended R.C. 2929.15
to define the term “technical violation.” Pursuant to R.C. 2929.15(E), a technical
violation:
[M]eans 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.
(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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Here, Elliott was found guilty of violating his community control for
failing to comply with court-ordered treatment (the Men’s Extended Treatment
Program), failing to pay restitution, and failing to report to his probation officer after
being released from the Justice Center.
{¶16} Both the failure to pay restitution and to comply with court-ordered
treatment were nontechnical violations. Each requirement was tailored to address
Elliott’s misconduct. The restitution was imposed to compensate the victims of
Elliott’s burglary offense for the harm he caused to their property. And the
requirement that Elliott complete the Men’s Extended Treatment Program was
imposed to address the trial court’s concerns about Elliott’s mental-health and drug
addiction.1 See State v. Castner, 163 Ohio St.3d 19, 2020-Ohio-4950, 167 N.E.3d 939,
¶ 16 (failure to complete a drug-treatment program was a nontechnical violation);
State v. Yauger, 8th Dist. Cuyahoga No. 111734, 2023-Ohio-815, ¶ 31 (failure to pay
restitution was a nontechnical violation because it was tailored to address concerns for
families who suffered from the defendant’s conduct and because the requiring of
restitution is rehabilitative).
{¶17} Elliott’s failure to report to his probation officer, on the other hand, was
a technical violation. He was required to do so to “facilitate[] community control
supervision.” See Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, at ¶
1Elliott alleges that he was confused as to whether he was required to complete the Men’s Extended
Treatment Program in lieu of or in addition to serving 180 days in the Justice Center. He further
alleges that his failure to complete the Men’s Extended Treatment Program was not his fault, as he
was not transferred to the program during his stay in the Justice Center. After reviewing the record,
we are empathetic to Elliott’s confusion, as the instructions from the trial court were less than clear
as to whether Elliott was required to complete both 180 days in jail and the Men’s Extended
Treatment Program or if was only required to compete the program if it occurred during his 180-
day jail stay. Nevertheless, because Elliott pleaded guilty to the failure to complete the Men’s
Extended Treatment Program despite his confusion, the trial court acted appropriately in
sentencing him to this admitted violation.
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OHIO FIRST DISTRICT COURT OF APPEALS
26. And the failure to report to probation fits within the definition of a technical
violation in R.C. 2929.15(E).
{¶18} Because the prison term imposed on Elliott was for both technical and
nontechnical violations, the trial court was not limited to imposing the 180-day period
for technical violations set forth in R.C. 2929.15(B)(1)(c)(ii). The second assignment
of error is accordingly overruled.
R.C. 2929.19(B)(4)
{¶19} In his third assignment of error, Elliott argues that the trial court erred
by imposing a prison sentence without strictly complying with the statutory
notification requirements in R.C. 2929.19(B)(4).
{¶20} R.C. 2929.19(B)(4) contains notifications that the trial court must give
to an offender when sentencing the offender to a period of community control. It
provides that:
If the sentencing court determines at the sentencing hearing that a
community control sanction should be imposed and the court is not
prohibited from imposing a community control sanction, the court shall
impose a community control sanction. The court shall notify the
offender that, if the conditions of the sanction are violated, if the
offender commits a violation of any law, or if the offender leaves this
state without the permission of the court or the offender’s probation
officer, the court may impose a longer time under the same sanction,
may impose a more restrictive sanction, or may impose a prison term
on the offender and shall indicate the range from which the prison term
may be imposed as a sanction for the violation, which shall be the range
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OHIO FIRST DISTRICT COURT OF APPEALS
of prison terms for the offense that is specified pursuant to section
2929.14 of the Revised Code and as described in section 2929.15 of the
Revised Code.
R.C. 2929.19(B)(4).
{¶21} At Elliott’s initial sentencing hearing when the trial court first sentenced
him to a period of community control, the trial court informed Elliott of the following:
Like I said, this is a felony of the fourth degree. It carries anywhere
between nine—I’m sorry—six and 18 months at the Ohio Department of
Corrections. So if you come back on any violation, especially one where
you’re not fully participating in the programming that’s been
recommended for you, you’re just going to go do the time at the Ohio
Department of Corrections. Do you understand?
{¶22} The trial court complied with the requirement in R.C. 2929.19(B)(4)
that it inform Elliott of the range from which a prison term could be imposed for a
violation of community control. But it failed to inform Elliott that, if he were to violate
his community control, commit a violation of any law, or leave the state without
permission from the court or his probation officer, the court could impose a longer
time under the same community-control sanction, impose a more restrictive
community-control sanction, or impose a prison term.
{¶23} Upon Elliott’s first community-control violation, where upon the trial
court continued him on the same community-control sanctions that were initially
imposed, the court did not cure the defect regarding these notifications. It again only
informed Elliott that he would “go to the Ohio Department of Corrections” for a future
violation.
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{¶24} As recognized by the Ohio Supreme Court, “[t]he notification
requirement in R.C. 2929.19(B)(5) is meant to put the offender on notice of the specific
prison term he or she faces if a violation of the conditions occurs.”2 State v. Fraley,
105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17. The notification provided
by the trial court complied with this recognized purpose. Nonetheless, the trial court
indisputably failed to comply with the remaining notification requirements in R.C.
2929.15(B)(5).
{¶25} In State v. Colburne, 9th Dist. Summit No. 27553, 2015-Ohio-4348, the
Ninth Appellate District considered a similar omission by the trial court when
notifying the defendant about community control. The trial court in Colburne told the
defendant about the prisons terms it would impose for a community-control violation,
but “it did not otherwise inform Mr. Colburne of the statutorily required notifications
under R.C. 2929.19(B)(4). The trial court did not notify Mr. Colburne that violating
the conditions of community control, violating another law, or leaving the state
without permission could result in additional sanctions, including the prison terms
outlined by the trial court.” Id. at ¶ 29. The Ninth District held that the notifications
provided were insufficient to comply with R.C. 2929.19(B)(4). Id. It recognized that
all required notifications had been included in the sentencing entry, but held that was
not sufficient to comply with the notification requirement because the notification had
to take place at the sentencing hearing. Id. Because Colburne had not yet violated
community control, the court determined that a remand for resentencing was an
appropriate remedy. Id.
2 Former R.C. 2929.19(B)(5) has been renumbered and is the equivalent of current R.C.
2929.19(B)(4).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} The Sixth District considered the impact of the same omission by the
trial court in State v. Jones, 6th Dist. Lucas No. L-03-1321, 2005-Ohio-5736. In Jones,
the trial court notified the offender of the specific prison term that would be imposed
if community control were violated, but it failed to notify him that the prison term
could also be imposed if he committed a violation of any law or left the state without
permission of his probation officer. Id. at ¶ 14. The appellate court held that the trial
court failed to comply with R.C. 2929.19(B)(5), and it remanded for the trial court to
provide the required notifications. Id. at ¶ 14-15.
{¶27} In State v. Robinson, 2d Dist. Champaign No. 2004 CA 21, 2005-Ohio-
3879, the court reached a different outcome when considering a similar omission by
the trial court. In Robinson, the trial court informed the defendant of the possibility
of the imposition of a prison term if he were to violate community control, and it
provided the length of the prison term. But it “did not expressly inform Robinson of
the provisions relating to more lengthy or restrictive community control sanctions at
the sentencing hearing.” Id. at ¶ 8. The Second District held that although the trial
court failed to comply with R.C. 2929.19(B)(5), Robinson had suffered no prejudice
because:
The trial court informed Robinson about the most significant
consequence of a community control violation: the possibility of
imprisonment and its term. It is very unlikely that information about
less serious consequences would have had an impact on Robinson’s
behavior if the threat of prison did not persuade him to comply with the
terms of community control.
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OHIO FIRST DISTRICT COURT OF APPEALS
More importantly, when Robinson was found to have committed his
first community control violation in September 2003, the court
imposed a more restrictive term of community control -- one of the
options about which he had not been informed at the sentencing
hearing. If he was prejudiced at all, it was by the imposition of this
sanction about which he had not been previously informed. However,
Robinson did not object to or appeal from that judgment.
Id. at ¶ 10-11. The court held that Robinson waived any error related to the trial court’s
failure to comply with R.C. 2929.19(B)(5), stating that:
In our view, it would be illogical to permit Robinson to challenge, at this
juncture, the trial court’s failure to inform him in 2002 that he might
face more restrictive or more lengthy community control sanctions for
a violation. When he was sentenced to more restrictive sanctions in
2003, he did not object to the imposition of that sanction in the trial
court or on appeal. That would have been the time to raise the alleged
error. We will not vacate his sentence now, when the court has imposed
a prison sentence, the possibility of which he had been fully informed.
Thus, Robinson has waived the alleged error related to R.C.
2929.19(B)(5).
Id. at ¶ 12.
{¶28} The case at bar is more analogous to Robinson than to Colburne or
Jones. In the latter two cases, the appellants appealed from the initial imposition of
community control, before any violation had occurred, whereas Elliott and Robinson
appealed from the sentence imposed following a community-control violation. Like
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OHIO FIRST DISTRICT COURT OF APPEALS
the offender in Robinson, Elliott failed to appeal when the trial court continued him
on community control after his violation. If Elliott were to have suffered any prejudice,
it would have been at that point, when the trial court imposed a continuation of
community control, a sanction of which he had not been previously informed.
{¶29} The trial court imposed a sentence from the sentencing range it
informed Elliott he faced if he were to commit a community-control violation. We
hold that Elliott suffered no prejudice from the trial court’s failure to provide the
additional notifications in R.C. 2929.15(B)(4).
{¶30} Elliott’s third assignment of error is overruled, and the judgment of the
trial court is, accordingly, affirmed.
Judgment affirmed.
BERGERON, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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