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State v. Neal

Court of Appeals of Ohio, Twelfth District, Clermont

June 10, 2019

STATE OF OHIO, Appellee,
v.
JOSHUA NEAL, Appellant.

          CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2017 CR 000192

          D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, for appellee

          W. Stephen Haynes, Clermont County Public Defender, Robert R. Benintendi, for appellant

          OPINION

          RINGLAND, P.J.

         {¶1} Appellant, Joshua Neal, appeals the prison sentence imposed by the Clermont County Court of Common Pleas following the revocation of his community control. For the following reasons, we affirm the sentence.

         {¶2} In March 2017, appellant was indicted on one count of aggravated possession of drugs, a fifth-degree felony, after law enforcement discovered fentanyl in appellant's possession while investigating an automobile collision between appellant and another motorist. Subsequently, appellant pled guilty to the charge. The trial court sentenced appellant to four years of community control, including an order to participate in a drug treatment program, and advised appellant that he could potentially serve twelve months in prison should he violate the terms and conditions of community control.

         {¶3} Overall, appellant violated community control three times. For the first and second violations, appellant admitted to the violations and the trial court continued him on community control. To elicit compliance, the court switched the drug treatment facilities after each violation. In total, the court ordered appellant to attend a drug treatment program at three different facilities as part of the community control sanctions.

         {¶4} In May 2018, appellant's probation officer filed a third affidavit of violation alleging that appellant violated the community control sanction by prematurely terminating his treatment by leaving the residential treatment facility. At the adjudication hearing appellant admitted to the violation.

         {¶5} In August 2018, at the sentencing hearing, the trial court revoked community control and imposed a 12-month prison term. At this hearing, the trial court found that appellant was not subject to the 90-day sentence limitation provided by R.C. 2929.15(B)(1)(c)(i), because appellant's violation was not "technical" for two reasons. First, appellant violated a substantive condition of community control by voluntarily leaving the treatment program. Second, appellant absconded from supervision by voluntarily leaving the facility and other failures to report to his probation officer, thereby making continued community control impractical. At the sentencing hearing, appellant objected to the trial court's decision and the court overruled the objection.

         {¶6} Appellant now appeals, raising one assignment of error:

         {¶7} THE TRIAL COURT ERRED IN FINDING THAT R.C. 2929.15(B)(1)(c)(i) DID NOT APPLY TO APPELLANT.

         {¶ 8} Appellant argues the trial court erred when it determined the violation was not a "technical violation." Appellant contends that since there is no statutory definition of the term "technical violation," the trial court should have interpreted "technical violation" to mean any violation that is not criminal in nature.

         {¶ 9} We review a prison sentence imposed for violating felony community control sanctions, as we review all felony sentences, pursuant to R.C. 2953.08(G)(2). State v. Ford, 12th Dist. Clermont No. CA2018-07-052, 2019-Ohio-1196, ¶ 9; accord State v. Eckert, 12th Dist. Clermont No. CA2018-06-038, 2019-Ohio-1289, ¶ 7. Under R.C. 2953.08(G)(2), an appellate court may modify or vacate a sentence only if it clearly and convincingly finds the record does not support the trial court's findings under relevant statutes or the sentence is otherwise contrary to law. State v. Bishop, 12th Dist. Clermont Nos. CA2018-05-031 and CA2018-05-036, 2019-Ohio-592, ¶ 8.

         {¶ 10} Pursuant to R.C. 2929.15(B), a trial court may impose a prison sentence as punishment for violating the terms and conditions of community control if the prison term is within the statutorily permitted range for the underlying offense and the offender was previously notified of the potential prison term at his sentencing hearing ...


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