[Cite as State v. Sanchez Martinez, 2019-Ohio-3350.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180580
TRIAL NO. B-1704913
Plaintiff-Appellee, :
vs. : O P I N I O N.
VICTOR SANCHEZ MARTINEZ, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 21, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
John D. Hill, Jr., for Defendant-Appellant.
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M OCK , Presiding Judge.
{¶1} Defendant-appellant Victor Sanchez Martinez (“Sanchez”) appeals
from the trial court's October 9, 2018 judgment entry finding that he violated his
community-control sanctions and imposing a sentence of 12 months in prison. For
the reasons set forth below, we affirm the trial court's judgment.
Multiple Community Control Violations
Result in Prison Sentence
{¶2} On October 12, 2017, Sanchez entered a plea of guilty to one count of
failing to provide notice of a change of his address, a felony of the fourth degree in
violation of R.C. 2950.05. The trial court accepted that plea, found him guilty, and
placed him on community control. One month later, the probation department
notified the trial court that he had violated the terms of his community control. He
had failed to report to the probation department on October 31. A letter was then
sent to him, instructing him to report on November 15. On November 15, Sanchez
again failed to report to the probation department. Additionally, Sanchez had failed
to make any payments toward his court costs. On December 27, the trial court
conducted a hearing and found that Sanchez had violated the terms of his
community control, but allowed him to continue on community control.
{¶3} On June 26, 2018, the probation department filed a notice with the
trial court that Sanchez had again violated the terms of his community control. The
report detailed that he had failed to appear in another case, resulting in a capias
being issued, had been convicted of four new misdemeanor offenses, had failed to
notify the probation department of a change of his residence, had again failed to
report to the probation department as instructed on two additional occasions, and
had failed to make any payments toward his court costs.
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{¶4} On October 9, the trial court conducted a hearing on the notice.
During the course of the hearing, the trial court learned that Sanchez’s new offenses
stemmed mainly from his failure to cooperate with law enforcement when he
encountered them. In January, Sanchez was at a friend’s house when the police
arrived and Sanchez gave the officer a fake name before fleeing from the home. This
resulted in a charge of obstructing official business. In February, a police officer
attempted to pull him over. Sanchez pulled into a parking lot, but drove away when
the officer approached his car. This resulted in a charge of failure to comply with an
order or signal of a police officer. In March, Sanchez attacked two employees in a
restaurant while he was intoxicated. This resulted in two charges of misdemeanor
assault.
{¶5} During the course of the hearing, the trial court became increasingly
frustrated with Sanchez’s answers, noting “You’re avoiding answering my direct
questions, which tells me there’s a hell of a lot more there than what you are telling
me.” The trial court then reviewed the violation report from the previous December.
After considering the information, the trial court concluded that “Mr. Sanchez, you’re
just, basically, ignoring the whole process.” The trial court then revoked Sanchez’s
community control and sentenced him to 12 months in prison.
{¶6} In his first assignment of error, Sanchez claims that the trial court
should have imposed a sentence of 180 days instead of 12 months. In his second
assignment of error, he claims that counsel was ineffective for failing to argue that
the 12-month sentence was contrary to law. We will address the assignments
together.
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A Pattern of Conduct Amounting to a Failure
to Comply with the Conditions as a Whole
{¶7} In 2017, the General Assembly substantially modified Ohio’s
sentencing scheme for community-control violations where the underlying offense is
a felony of the fourth or fifth degree. R.C. 2929.15 now significantly narrows the
discretion trial courts may exercise when sentencing a defendant after finding a
violation of community control. If the defendant either violates the conditions of
community control, or violates the law, or leaves the state without permission, the
trial court may impose a prison sentence. See R.C. 2929.15(B)(1)(c). But the trial
court is limited to imposing only 180 days for a felony of the fourth degree “if the
prison term is imposed for any technical violation of the conditions of a community
control sanction * * * or for any violation of law * * * that consists of a new criminal
offense and that is not a felony.” R.C. 2929.15(B)(1)(c)(ii).
{¶8} Sanchez argues that his violations constituted technical violations and
misdemeanor offenses, and therefore he could only be sentenced to 180 days in
prison. This court has recently addressed the application of the 2017 change to the
community-control-violation sentencing statute and the definition of a “technical
violation.” See State v. Kernall, 1st Dist. Hamilton No. C-180613, 2019-Ohio-3070.
We agree with the Fifth, Second, and Sixth Districts to the extent that a
“technical violation” is a violation of any requirement which merely
facilitates community-control supervision. See [State v. Nelson, 2d
Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763,] ¶ 32. However, we
also agree with the Eighth District's rationale that an offender's
violations of community control can be considered under the totality of
the circumstances. “[T]he General Assembly did not intend for
individuals who [never report to probation or who fail to engage in any
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of the conditions of community control] to be considered ‘technical’
violators.” State v. Stanko, 8th Dist. Cuyahoga No. 106886, 2019-
Ohio-152, ¶ 10. Therefore, the inquiry under R.C. 2929.15(B)(1)(c) is
two-fold. An offender's significant failure to comply with any
substantive rehabilitative requirement which was specifically-tailored
to the offender's underlying conduct is not a technical violation for
purposes of R.C. 2929.15(B)(1)(c). In addition, if the offender engages
in a pattern of conduct that demonstrates a failure to comply with the
community-control sanction as a whole, this is also not a technical
violation.
Id. at ¶ 18. Thus, a trial court may sentence a defendant to a term greater than that
set forth in either of the subsections of R.C. 2929.15(B)(1)(c) if the trial court
concludes that the defendant either (1) violated a condition that was a substantive
rehabilitative requirement specifically tailored to the offender’s conduct, or (2)
engaged in a pattern of conduct that demonstrated a failure to comply with the
community-control sanction as a whole.
{¶9} In this case, the individual acts that constituted the several violations
of Sanchez’s community control were either technical violations or new criminal
conduct that did not constitute felonies. And none of his conduct resulted in a
violation of a substantive rehabilitative requirement which was specifically-tailored
to his underlying conduct. As a result, we are left to consider whether his conduct
amounted to “a pattern of conduct that demonstrates a failure to comply with the
community-control sanction as a whole.”
{¶10} In State v. Kernall, this court addressed the same question, finding
that Kernall had engaged in such a pattern of conduct.
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In addition to failing to report to substance-abuse treatment, Kernall
also failed to report to the probation department on two separate
occasions, failed to show proof of employment verification, and
obtained five new misdemeanor capiases. While each of these
violations alone would likely constitute either a technical violation or a
violation of law that is not a felony, the cumulative effect of the
violations amounts to a pattern of conduct that demonstrates a failure
to comply with the community-control sanction as a whole.
Kernall, 1st Dist. Hamilton No. C-180613, 2019-Ohio-3070, at ¶ 20.
{¶11} In this case, Sanchez failed to notify the probation department of his
new address, he failed to report to the probation department on two separate
occasions, he picked up four new misdemeanor convictions, and he failed to appear
for court for one of those. And two of the four offenses involved the failure to
cooperate with law enforcement—in one instance he gave a police officer a fake name
and fled, and in a second he fled from another officer who attempted to pull him
over. And during the hearing on his community-control violations, he was evasive in
his answers to the trial court. The overall pattern that Sanchez established was that
he was unwilling to cooperate with the requirements placed upon him by others in
authority—not by police officers, not by probation officers, and not by courts. In
summing up the matter, the trial court told him that “you’re just, basically, ignoring
the whole process.” Even without the guidance of this court in Kernall, the trial
court, in essence, concluded that “the cumulative effect of the violations amount[ed]
to a pattern of conduct that demonstrate[d] a failure to comply with the community-
control sanction as a whole.” And the record amply supports this conclusion.
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Conclusion
{¶12} Sanchez was not entitled to the 180-day limitation under R.C.
2929.15(B)(1)(c)(ii). And since he was not entitled to the limitation, counsel was not
ineffective for failing to make that argument below. See State v. Black, 1st Dist.
Hamilton No. C-100357, 2011-Ohio-1330, ¶ 23 (the failure to make a futile argument
is not ineffective assistance of counsel). We overrule his two assignments of error
and affirm the judgment of the trial court.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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