2019 Ohio 5186
Ohio Ct. App.2019Background
- Lisa Swetnam was indicted on four drug-possession counts (including fentanyl and carfentanyl) and pled guilty; the court imposed 2 years community control in lieu of prison with reserved prison terms.
- The court’s sentence reserved consecutive 12-month prison terms (total 24 months) if community control was revoked.
- The State moved to revoke after Swetnam admitted using fentanyl on multiple dates and tested positive for fentanyl and gabapentin; she also admitted prohibited contact with a person she was ordered not to contact.
- At the revocation hearing Swetnam stipulated to probable cause and admitted the violations, and stated she had a bed in a treatment program.
- The trial court revoked community control and imposed the reserved 24-month prison term (consecutive 12-month terms).
- Swetnam appealed, arguing the violations were only “technical” and therefore R.C. 2929.14(B)(1)(c)(i) limited any prison term to 90 days for a fifth-degree-felony technical violation.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Swetnam) | Held |
|---|---|---|---|
| Whether the trial court erred by imposing the full reserved prison terms after revoking community control on alleged non-criminal/technical violations | Swetnam’s use of fentanyl while under supervision constituted criminal conduct, not a mere technical violation, so full reserved terms were lawful | Violations were technical/non-criminal; R.C. 2929.14(B)(1)(c)(i) caps a prison term for a fifth-degree-felony technical violation at 90 days | Court affirmed: violations were not technical because using/possessing fentanyl is criminal; full reserved consecutive 12-month terms were permitted |
Key Cases Cited
- State v. Cozzone, 114 N.E.3d 601 (Ohio App.) (overdose/use of drugs while under supervision is criminal in nature and not a mere technical violation)
- State ex rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St.3d 121, 609 N.E.2d 546 (Ohio 1992) (defines "technical violations" of parole as noncriminal breaches such as failure to report or association with known criminals)
- Inmates' Councilmatic Voice v. Rogers, 541 F.2d 633 (6th Cir. 1976) (examples of technical parole violations include failure to report, leaving employment, and leaving the State)