State v. Calhoun

[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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