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State v. Fisher

Court of Appeals of Ohio, Fourth District, Athens

June 11, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
BRYAN K. FISHER, Defendant-Appellant.

          Timothy Young, Ohio State Public Defender, and Craig M. Jaquith, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

          Keller Blackburn, Athens County Prosecuting Attorney, and Robert P. Driscoll, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Matthew W. McFarland, Judge

         {¶1} This is an appeal from an Athens County Court of Common Pleas judgment entry terminating Appellant's community control sanctions and imposing a prison term.

         {¶2} On November 7, 2018, Appellant pleaded guilty to aggravated possession of drugs and possession of drugs, both fifth degree felonies. The trial court imposed five years of community control sanctions with special conditions that he enter and complete SEPTA[1], a community based correctional facility, and The Landing at Cedar Ridge (The Landing)[2], a residential treatment program Appellant failed to complete both, and the trial court revoked his community control sanctions and imposed a twenty-four month sentence for the underlying drug offenses.

         {¶3} On appeal, Appellant asserts that the trial court erred because his sentence is contrary to R.C. 2929. 15(B)(1)(c)(i). Finding that the sentence cap in this provision does not apply because Appellant's violation of his community control sanctions was more than a technical violation, we affirm the trial court's judgment.

         FACTS AND PROCEDURE

         {¶4} The State charged Appellant with two fifth degree felonies: aggravated possession of drugs and possession of drugs, both in violation of R.C. 2925.11(A). Appellant pleaded guilty to both charges.

         {¶5} On December 12, 2017, the trial court sentenced Appellant to five years of community control sanctions, as well as the following conditions including, among others: (1) enter and successfully complete SEPTA, (2) submit to drug and alcohol assessments, (3) not possess or consume alcohol, and (4) not take or possess drugs, except for as ordered by his physician.

         {¶6} On February 8, 2018, the State filed a notice of violation of community control sanctions alleging that Appellant committed four violations, including a positive drug test and that he had been terminated from SEPTA. The State moved the trial court to impose the underlying term of incarceration.

         {¶7} On March 12, 2018, Appellant filed a Motion for Furlough asking the court to allow him to be examined by a medical professional because of a leg problem.

         {¶8} At a March 13, 2018 hearing, Appellant stipulated to violating the terms and conditions of his community control sanctions.

         {¶9} On April 13, 2018, the trial court issued a judgment entry continuing Appellant's five-year community control sanctions, but added additional conditions, including that:

"[Defendant is ordered to enter and successfully complete The Landing FORTHWITH, and shall sign all requested releases and follow any aftercare recommendations. If the defendant leaves or is terminated from the Landing, he shall be transported to the Southeastern Ohio Regional Jail by the Athens County Sheriffs Office."

         {¶10} On May 31, 2018, the State filed a notice of violation of community control sanctions and notice of hearing alleging that "[Appellant] was terminated unsuccessfully from The Landing."

         {¶11} Then, on June 5, 2018, the trial court issued an entry granting Appellant a medical furlough to receive medical treatment at Riverside Methodist Hospital. The entry provided that he would only be released from Riverside directly into the custody of the Athens County Sheriffs office and be returned to the Southeastern Ohio Regional Jail immediately.

         {¶12} The State filed a supplemental notice of violation of community control sanctions and notice of hearing on July 7, 2018, alleging that, in addition to Appellant's failure to complete The Landing, he was discharged from treatment from Riverside Methodist Hospital to a family member, as opposed to being ...


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