State v. Stevens

[Cite as State v. Stevens, 2019-Ohio-1838.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

VINTON COUNTY

STATE OF OHIO, :

: Case No. 18CA712

Plaintiff-Appellee, :

:

vs. : DECISION AND JUDGMENT

: ENTRY

KENNETH STEVENS, :

:

Defendant-Appellant. : Released: 05/06/19

APPEARANCES:

Brian A. Smith, Akron, Ohio, for Appellant.

Trecia Kimes-Brown, Vinton County Prosecutor, and William L. Archer Jr.,

Assistant Vinton County Prosecutor, McArthur, Ohio, for Appellee.

McFarland, J.

{¶1} This is a delayed appeal from a Vinton County Court of Common

Pleas judgment entry terminating Appellant’s community control and imposing a

prison term.

{¶2} Appellant pleaded guilty to four criminal counts, and the trial court

suspended an 18-month sentence and imposed community control. Subsequently,

the trial court required Appellant to complete the Structure Therapy Advocacy

Restoration (STAR) Program. After Appellant withdrew from the STAR program,

the trial court revoked his community control and imposed the 18-month sentence.

Vinton App. No. 18CA712 2

Appellant appealed asserting that his sentence was limited to 180 days pursuant to

R.C. 2929.15(B)(1)(c)(ii), which caps sentences at 180 days for technical

community control violations. Because we find that the failure to complete the

STAR program was not a not technical violation, the 180-day sentence cap in R.C.

2929.15(B)(1)(c)(ii) does not apply. Therefore, we affirm Appellant’s sentence.

Facts and Procedure

{¶3} The State issued a complaint charging Appellant with: (1) tampering

with drugs in violation of R.C. 2925.24, a third degree felony; (2) disrupting public

services in violation of R.C. 2909.04(A)(3), a fourth degree felony; (3) possession

of drugs in violation of R.C. 2925.11(A)(2)/(C)(2)(b), a first degree misdemeanor;

(4) domestic violence in violation of R.C. 2919.25(A), a first degree misdemeanor;

(5) criminal damaging in violation of R.C. 2909.06(A)(1), a first degree

misdemeanor, (6) obstructing official business in violation of R.C. 2921.31, a

second degree misdemeanor; and, (7) resisting arrest in violation of R.C.

2921.33(A), a second degree misdemeanor.

{¶4} Appellant waived his right to a jury trial and pleaded guilty to

disrupting public services, possession of drugs, domestic violence, and criminal

damaging. On March 22, 2017, the trial court imposed a suspended 18-month

sentence and ordered Appellant to serve three years of community control, as well

as specific conditions, including that Appellant “shall successfully complete anger

Vinton App. No. 18CA712 3

management counseling as directed by the APA.” The sentencing entry stated that

if Appellant “violates the conditions of community control * * * the court may

impose a longer time under the same sanction, may impose a more restrictive

sanction, or may impose a prison term of 18 months upon the convictions set

forth.”

{¶5} On January 22, 2018, the State issued a Notice of Community Control

Violations that indicated since September 8, 2017 Appellant had missed or

rescheduled appointments at Treatment Assessment Screening Center (TASC) at

least 20 times and had tested positive for buprenorphine twice.

{¶6} On February 28, 2018, the trial court issued a judgment recognizing

that Appellant waived his right to a hearing and admitted to the violations.

Nevertheless, the court found that Appellant was still amenable to continued

community control sanctions, but the court also required that he “shall enroll in

and successfully complete STAR and all recommended aftercare as directed by the

Adult Parole Authority.” The STAR program is a community based correctional

facility (CBCF)1.

1

“Community Based Correctional Facilities (CBCFs) are secure residential programs that provide

comprehensive programming for offenders on felony probation. CBCFs provide a wide range of

programming addressing offender needs such as cognitive behavioral therapy, chemical dependency,

education, employment, and family relationships. CBCFs are governed by a facility governing board and

advised by a judicial advisory board.” https://drc.ohio.gov/community.

Vinton App. No. 18CA712 4

https://drc.ohio.gov/Portals/0/CBCF%20Directory%20w%20FGB%20Chair%20F

Y2019.pdf

{¶7} On March 5, 2018, the State issued a second Notice of Community

Control Violations alleging that Appellant entered with force Jennifer Quintal’s

residence without her permission. It further alleged that while he was there he

threatened and held Quintal against her will, took her phone, and disrupted public

service from Quintal.

{¶8} On March 14, 2018, the trial court issued an entry finding that the

State withdrew the alleged violations, so the court continued the community

control sanctions.

{¶9} On April 4, 2018, the State issued a third Notice of Community

Control Violations stating that on April 2, 2018, Appellant had “self-terminated”

from the court ordered STAR program against staff advice.

{¶10} On April 11, 2018, the trial court held a hearing to consider the

alleged violations, and a new criminal offense. The State recommended that

Appellant’s community control be revoked and that he serve the balance of his

sentence, 18 months, with 60 days of jail time credit. Appellant admitted that he

walked out from the STAR program. He also pleaded not guilty to the new

charges.

Vinton App. No. 18CA712 5

{¶11} The court found that Appellant violated community control sanctions

by voluntarily leaving the STAR program. The court then also found that

Appellant was no longer amenable to community control sanctions, and then

imposed the 18 months in jail for the original disrupting public services conviction

with 60 days of jail time credit. The court stated that “not completing the STAR

program, uh, would not be considered a technical violation and therefore, the Court

has the authority to impose the sentence which has been imposed here today.”

{¶12} Appellant did not file a timely appeal, but did file a motion for a

delayed appeal, which we granted. In his delayed appeal, Appellant asserts two

assignments of error.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT’S SENTENCE WAS CONTRARY TO LAW.

II. THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S

SENTENCE OF APPELLANT.

ASSIGNMENT OF ERROR I

{¶13} Appellant’s first assignment of error contends the trial court’s

imposition of an 18-month prison term for his violation of community control was

contrary to law because his violation was not criminal in nature making it merely a

technical violation, which caps his maximum possible sentence at 180 days under

2929.15(B)(1)(c)(ii).

Vinton App. No. 18CA712 6

{¶14} The State asks the court to adopt the reasoning of several courts of

appeals that have held that even though a community control violation is not

criminal in nature, it is nevertheless not a technical violation if a special condition

was imposed. This, the State argues, means that the 180-day sentence cap in R.C.

2929.15(B)(c)(ii) would not apply so Appellant’s 18-month sentence would not be

contrary to law.

{¶15} An appellate court may reverse a sentence only if it is clearly and

convincingly not supported by the sentencing court's findings, or it is otherwise

contrary to law. State v. Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062,

2018-Ohio-4506, ¶ 10, State v. Marcum, 2016-Ohio-1002, 146 Ohio St.3d 516,

521, 59 N.E.3d 1231, ¶ 23.

{¶16} R.C. 2929.15(B)(1)(c)(ii) provides:

If the prison term is imposed for any technical violation of the

conditions of a community control sanction imposed for a felony of

the fourth degree that is not an offense of violence and is not a

sexually oriented offense 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 one hundred eighty days.

(Emphasis added.)

{¶17} Accordingly, a technical violation of community control means that

any sentence then imposed by the trial court cannot exceed 180 days. However,

R.C. 2929.15 does not define “technical violation.”

Vinton App. No. 18CA712 7

{¶18} The Supreme Court of Ohio has defined “ ‘technical violations’ [of

parole] as ‘those violations of the terms and conditions of the parole agreement

which are not criminal in nature[,] such as failure to report to the parole officer,

association with known criminals, leaving employment, leaving the State, etc.’ ”

State ex rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St.3d 121, 124, 609

N.E.2d 546 (1993), quoting Inmates' Councilmatic Voice, supra, 541 F.2d at 635,

fn. 2. This Court adopted Taylor’s definition of technical violation in holding that

“a technical violation of community control for purposes of R.C. 2929.15(B) is a

violation that is not criminal in nature.” State v. Abner, 4th Dist. Adams Nos.

18CA1061, 18CA1062, 2018-Ohio-4506, ¶ 13.

{¶19} However, a month later in State v. Blake, 4th Dist. Hocking No.

18CA6, 2018-Ohio-5413, ¶ 11, we held that the violation of a special condition

imposed as part of community control, even though not criminal in nature, is a

non-technical violation under 2929.15(B)(1)(c)(i).

{¶20} In Blake, the defendant entered guilty pleas to possession and

trafficking in drugs, both fifth degree felonies. Blake at ¶ 3. The court granted the

defendant intervention in lieu of conviction and placed the defendant under the

supervision of Adult Parole Authority for three years, which included certain terms

and conditions: (1) attend GED classes, (2) pay court costs, (3) complete treatment

Vinton App. No. 18CA712 8

in lieu, (4) forfeit money seized, (5) have no contact with felons, and (6) abstain

from using or possessing illegal drugs or alcohol. Id.

{¶21} The defendant violated her community control by associating with

criminals and drinking alcohol. Blake, ¶ 4. The trial court revoked her treatment in

lieu of conviction and sentenced her to 24 months, but suspended the prison term

and placed her on community control for five years with the following conditions:

(1) supervision for the first year on community control, (2) substance abuse

counseling, (3) no alcohol or illegal drug use, (4) pay court costs, and (5) no

association with criminals without APA permission. Id.

{¶22} The defendant admitted to a second violation of her community

control for using non-prescribed opiates (Percocet). Blake, ¶ 5. The trial court

continued the community control for five years and imposed the following

conditions: (1) obtain substance abuse health counseling through an appropriate

agency, costs to defendant, successfully complete said program and follow through

with the recommendations made, (2) do not to use or possess any alcohol, illegal

drugs, drug paraphernalia and pseudoephedrine whatsoever, (3) have no contact

whatsoever with persons with a criminal record without permission of the Adult

Parole Authority, and (4) enter the STAR Program and Aftercare Program,

successfully complete said programs and follow through with the recommendations

Vinton App. No. 18CA712 9

made. Successful completion of said programs will result in termination of

probation. (Emphasis added.) Id.

{¶23} The State again alleged that the defendant violated community

control and asked her supervision be revoked. Blake, ¶ 6. The State alleged that

the appellant “knowingly caused STAR staff members to believe that you would

cause serious physical harm to them or their family members” and “failed to

complete the STAR program, when * * * [she] was unsuccessfully terminated from

the STAR program.” Id. The trial court revoked appellant’s community control

and imposed a 24-month sentence. Id.

{¶24} Blake appealed asserting that the trial court's 24-month prison

sentence was clearly and convincingly contrary to law because it exceeded the 90-

day cap for technical violations of community-control sanctions pursuant to R.C.

2929.15(B)(1)(c)(i). Blake at ¶ 8.

{¶25} Blake reaffirmed that technical violations of community control are

violations that are not criminal in nature. Id. at ¶ 8, 9. However, Blake also

adopted the rationale from Fifth and Twelfth District Courts of Appeals that CBCF

treatment was a rehabilitative requirement imposed as a special condition of

community control, and even though such a violation was not criminal in nature, it

was nevertheless a non-technical violation, making the 90-day sentencing cap in

R.C. 2929.15(B)(1)(c)(i) inapplicable for fifth degree felonies. Blake, at ¶ 10 and

Vinton App. No. 18CA712 10

11, citing State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672,

¶ 16-18, State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219. We

applied this reasoning in assessing to Blake’s violation:

“[A]ppellant was discharged from the CBCF; she did not

voluntarily sign herself out. Nevertheless, the end result is the same

- appellant failed to complete the STAR program, which constitutes

a violation of community control. Therefore, consistent

with Cozzone, Davis, and Mannah, we conclude that the

requirement for appellant to complete a CBCF is a special

condition of community control and, thus, a non-technical

violation.” Blake at ¶ 11.

{¶26} Because Blake’s violation was not a technical violation, the 90-day

sentence cap in R.C. 2929.15(B)(1)(c)(i) did not apply so we affirmed the trial

court’s 24-month sentence. Id.

{¶27} Here, we find that Blake is controlling of Appellant’s appeal.2

Similar to Blake, after a community control violation, the trial court found that

Appellant was still amenable to continued community control sanctions, but the

court added the requirement that Appellant “shall enroll in and successfully

complete STAR and all recommended aftercare as directed by the Adult Parole

Authority.” But Appellant withdrew and consequently failed to successfully

complete the STAR program. Under Blake, Appellant’s failure to complete the

STAR program is a non-technical violation of his community control sanctions.

2

R.C. 2929.15(B)(1)(c)(i), addressed in Blake, contains sentence caps for fifth degree felonies, while R.C.

2929.15(B)(1)(c)(ii), applicable to Appellant, contains sentence caps for fourth degree felonies, we find no

reason why our definition of a non-technical violation in Blake would not apply to a fourth degree felony

at issue in this case.

Vinton App. No. 18CA712 11

Therefore, R.C. 2929.15(B)(1)(c)(ii) did not cap Appellant’s sentence at 180 days,

which means the trial court’s imposition of an 18-month sentence was not contrary

to law. Accordingly, we overrule Appellant’s first assignment or error.

ASSIGNMENT OF ERROR NUMBER II

{¶28} In his second assignment of error, Appellant argues that the trial

court’s sentence is not clearly and convincingly supported by the record.

{¶29} In response, the State argues that there is clear and convincing

evidence from the record that Appellant violated community control by failing to

complete the Star program. “Clear and convincing evidence has been defined as

‘[t]he measure or degree of proof that will produce in the mind of the trier of fact a

firm belief or conviction as to the allegations sought to be established. It is

intermediate, being more than a mere preponderance, but not to the extent of such

certainty as required beyond a reasonable doubt as in criminal cases. It does not

mean clear and unequivocal.’ ” In re I.M., 4th Dist. Athens No. 10CA35, 2011-

Ohio-560, ¶ 6, quoting In re McCain, 4th Dist. Vinton No. 06CA654, 2007-Ohio-

1429, at ¶ 8.

{¶30} There is clear and convincing evidence that Appellant failed to

successfully complete the Star Program, which was a condition of his community

control. Therefore, we overrule Appellant’s second assignment of error.

Vinton App. No. 18CA712 12

{¶31} Accordingly, because the trial court’s sentencing of Appellant to 18

months in prison was not contrary to law and is supported by the record and by

clear and convincing evidence, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.

Vinton App. No. 18CA712 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to

Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the

Vinton County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON

BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR

THIS COURT, it is temporarily continued for a period not to exceed sixty days

upon the bail previously posted. The purpose of a continued stay is to allow

Appellant to file with the Supreme Court of Ohio an application for a stay during

the pendency of proceedings in that court. If a stay is continued by this entry, it

will terminate at the earlier of the expiration of the sixty day period, or the failure

of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the

forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of

the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses

the appeal prior to expiration of sixty days, the stay will terminate as of the date of

such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

Abele, J. & Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ______________________________

Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final

judgment entry and the time period for further appeal commences from the

date of filing with the clerk.