2023 Ohio 3108
Ohio Ct. App.2023Background
- Appellant Shane Cihon was indicted for fourth-degree grand theft (motor vehicle) and fifth-degree vandalism; he pleaded guilty to both under a joint recommendation for 36 months community control, restitution, and completion of the STAR CBCF program.
- At sentencing the court accepted community control, reserved statutory prison terms for each count, and expressly made R.C. 2929.14(C) consecutive-sentence findings (stating consecutive sentences were agreed and necessary to protect the public).
- Cihon was later unsuccessfully discharged from the STAR CBCF after a physical altercation with another resident; the State moved to revoke community control.
- At revocation the court treated the CBCF discharge as a nontechnical violation, revoked community control, and imposed consecutive prison terms of 18 months (Count 1) and 12 months (Count 2), totaling 30 months.
- Cihon appealed raising three assignments: (1) erroneous consecutive-sentence findings at sentencing and revocation; (2) trial court applied an outdated standard and the discharge was a mere technical violation (so any prison sanction over 180 days was unlawful); and (3) appellate counsel was unlawfully denied a copy of the PSI.
- The Fourth District affirmed: it found the record supported consecutive-sentence findings, the violent CBCF discharge was a nontechnical violation under both Nelson and the amended R.C. 2929.15(E), and denial of a copy of the PSI complied with statutory restrictions and Supreme Court precedent.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cihon) | Held |
|---|---|---|---|
| Whether trial court erred in making consecutive-sentence findings at sentencing and revocation | Trial court made the required R.C. 2929.14(C) findings at sentencing and again at revocation; findings are supported by record | Court mischaracterized the plea agreement; consecutive findings at initial sentencing (while imposing community control) were improper and conflict with amenability findings | Affirmed — court made adequate consecutive findings at sentencing and revocation; record supports them and no abuse of discretion; de novo appellate review (Gwynne) also supports aggregate sentence |
| Whether CBCF discharge was a "technical" violation under the amended R.C. 2929.15(E) such that prison over 180 days was barred | The incident was a violent act (physical altercation) and thus a nontechnical violation not covered by the statutory definition of technical violation | Under the new statutory standard, discharge did not show an abandonment/refusal to participate in community control, so longer prison term was unlawful | Affirmed — violent act constituted a nontechnical violation under Nelson and R.C. 2929.15(E); revocation and prison terms within statutory range were appropriate |
| Whether appellate counsel was unlawfully denied a copy of the PSI | R.C. 2951.03 and Crim.R.32.2 limit PSI access and copying; appellate counsel may inspect PSI for first appeal under Johnson but must follow statutory restrictions | Denying counsel a retained copy of the PSI handicaps appellate work and was unlawful | Affirmed — trial court followed statutory scheme and Supreme Court precedent; counsel permitted access but copying/retention restricted by statute |
Key Cases Cited
- State v. Howard, 162 Ohio St.3d 314 (2020) (discusses requirements for consecutive-sentence findings)
- State v. Nelson, 162 Ohio St.3d 338 (2020) (defines nontechnical vs. technical community-control violations)
- State v. Underwood, 124 Ohio St.3d 365 (2010) (trial court not bound by jointly recommended sentence)
- State v. Johnson, 138 Ohio St.3d 282 (2014) (appellate counsel may access PSI for defendant's first appeal, subject to statutory limits)