Court of Appeals of Ohio, Twelfth District, Clermont
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2017 CR 000192
Vincent Faris, Clermont County Prosecuting Attorney, Nick
Horton, for appellee
Stephen Haynes, Clermont County Public Defender, Robert R.
Benintendi, for appellant
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.
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.
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
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.
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
Appellant now appeals, raising one assignment of error:
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 ...