State of Ohio v. Delorean Calhoun
Court of Appeals No. WD-17-067
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Decided: January 25, 2019
[Cite as State v. Calhoun, 2019-Ohio-228.]
Trial Court No. 2015CR0355
DECISION AND JUDGMENT
Pаul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
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OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas which sentenced appellant to a nine-month prison term sanction for violation of his community control sanction. For the reasons set forth below, this court affirms the judgment of the trial court.
- The trial court committed plain error in sentencing appellant to prison in excess of ninety days on a fifth degree felony for a technical violation of his community control, in violation of
R.C. 2929.15(B)(1)(c)(i) .
I. Background
{¶ 1} The fоllowing facts are relevant to this appeal. On January 27, 2017, appellant Delorean Calhoun pled guilty to the offense of forgery, a violation of
{¶ 2} Thereafter, and following a presentence investigation report and a sentencing hearing, the trial court stated in its sentencing judgment entry journalized on March 21, 2017, it imposed on appellant four years of a community control sanctiоn with 13 terms and conditions and “reserved” a 12-month prison sentence. Specifically, the trial court‘s entry stated, “The Defendant was again reminded * * * that the Court is reserving twelve (12) months in the Ohio Department of Rehabilitation and Corrections should he violate the terms of his Community Control.”
If in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions authorized pursuant to [
R.C. 2929.16 ,2929.17 , or2929.18 ]. * * * The duration of all community control sanctions imposed * * * shall not exceed five years. If the offender absconds * * * the period of the community control sanction ceases to run until the offender is brought before the court for its further action.
{¶ 4} Appellant‘s 13 conditions of his community control sanction were nonresidential sanctions pursuant to
{¶ 5} By April 6, 2017, appellant violated at least one condition of his community control sanction, by absconding from reporting to his West Virginia probation officer. On May 1, 2017, appellee petitioned the trial court tо revoke appellant‘s community control sanction and impose a prison sentence.
{¶ 6} Prior to the hearing on appellee‘s petition, the General Assembly revised the statute for community control sanction violations, in part, as follows in italics:
(1) If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of
the court or the offender‘s probation officer, the sentencing court may impose upon the violator one or more of the following penalties: (a) A longer tem under the same sanction if the total time under the sanctions does not exceed the five-year limit specified in division (A) of this section;
(b) A more restrictive sanction under [
R.C. 2929.16 ,2929.17 or2929.18 ];(c) A prison term on the offender pursuant to [
R.C. 2929.14 ] and [R.C. 2929.15(B)(3) ], provided that a prison term imposed under this division is subject to the following limitations, as applicable:(i) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fifth degree 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 ninety days.
* * *
(3) The prison term, if any, imposed upon a violator pursuant to [
R.C. 2929.15(B)(1) ] shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exceed the prison term specified in the notice provided to the offenderat the sentencing hearing pursuant to [ R.C. 2929.19(B)(2) ]. (Emphasis added.)
{¶ 7} On October 6, 2017, the trial court held the hearing on appellee‘s petition. Appellant admitted to violating his community control sanction and informed the trial court, “I would really like to go to ODRC, take care of my time, and just get rid of the probation.” The transcript of the hearing is in the record, and the trial court made the following statement:
Mr. Calhoun, I remember when we did the sentencing, and I went back to the sentencing entry. The Court reviewed 2929.11, 2929.12, but noted that you previously had served prison time and you committed this offense while on community control [from another case]. You had a number of recidivism factors. It‘s just the fact that * * * you have * * * the qualifications [for] the court to impose prison time on the F-5. The court decided to go with community control. Then right from out of the gate you didn‘t comply with it. Then even hеre today you said I‘d rather go to prison than comply with it. So based upon all of the statements here today, based upon the sentencing factors under 2929.11, 2929.12, the Court will impose nine months in the Ohio Department of Rehabilitation and Corrections, give you credit for time served. You will serve the remainder of time.
{¶ 9} Thereafter, on October 26, 2017, appellant moved the trial court to vacate his sentence for a violation of recently revised
Previously we were here on a probation violation. The probation violation was that defendant had failed to comply with probation. And let me read the corroboration. The probation office was notified by the Interstate Commission for Adult Offender Supervision that the defendant‘s transfer request was denied. He had * * * asked to transfer to West Virginia. The reason for the denial was that the subject had failed to report at the agreed time, date, [and] location, his phone number no longer worked, and he failed to make contact in any way since the missed
appointment. The subject had already failed to meet requirements. He is not a good candidate for approval for community supervision. His whereabouts were unknown. We went through several machinations, I guess, to get the defendant here. We finally did get him here. And then we had a hearing on the probation violation. There was a stipulation to the PV, if I remember right and as I see it, according to the record here. And then the Court heard evidence in regard to the prоbation violation. And based upon 2929.11, 2929.12, 13, 14, ordered that the Defendant was no longer amenable to community control and imposed a nine-month sentence. That nine-month sentence was imposed after October 1st when Ohio Revised Code 2929.15 went into effect.
{¶ 10} Appellant argued that the new language of
The fact of the matter is that in this case you were placed on probation. There was no cooperation with any probation conditions, there was no completion of any of the probation conditions, and you did not do probation. The Court believes that that is more than a technical violation under 2929.15(B)(1)(c), and that according to the consideration under
2929.11, 2929.12, the Court will impose the nine months that was previously imposed.
{¶ 11} By judgment entry journalized on December 14, 2017, subsequently corrected nunc pro tunc, the trial court accepted appellant‘s stipulation of violating the terms and conditions of community control and adjudged him guilty of the same. The trial court stated the following in its entry:
The Court found that although a new felony charge had not been filed against the Defendant, that his absconding from community control and failing to report or participate in any manner was a threat to public safety and would be considered a major violation and not a technical violation.
Based upon all of its considerations the Court determined that Defendant was subject to the imposition of the reserved prison term and that it was not limited to 90 days. The court further found that a prison term was consistent with the purposes and principles of sentencing under Ohio Revised Code 2929.11 and that Defendant was no longer amenable to community control. This was because Defendant refused to cooperate or communicate with the Adult Probation Department when he failed to report at an agreed date, time and location or participate with authorities in West Virginia where his probation was to be transferred. Defendant noted his objection for the record. * * * IT IS THEREFORE ORDERED,
ADJUDGED AND DECREED that the Court hereby imposes a prison sentence of nine (9) months in the Ohio Department of Rehabilitation and Corrections for the offense of Forgery, a violation of Ohio Revised Code Sections 2913.31(A)(3) and 2913.31(C)(1)(b), a felony of the fifth degree. (Emphasis sic.)
II. Felony Sentence Review
{¶ 12} In support of his assignment of error, appellant argued the trial court‘s sentence was contrary to law as stated in
{¶ 13} In response, appellee argued the trial court did not commit plain error. The facts in the case showed appellant absconded, and appellee argued absconding was more than a “technical violation.” Appellee argued absconding in the context of violating a community control sanction was similar to absconding in the context of violating a post-
{¶ 14} We review a contrary-to-law challenge to a trial court‘s felony sentencing determination for clear and convincing evidence in the record.
{¶ 15} Appellant was originally sentenced on March 21, 2017, for the crime of forgery, a felony in the fifth degree, and the trial court imposed a four-year community control sanction and “reserved” a 12-month prison term. For a felоny in the fifth degree the trial court could impose a prison term within the range from six to 12 months.
{¶ 16} Our review of the record finds clear and convincing evidence supporting appellant‘s felony sentence for forgery, and the sentence was not contrary to law. State v. Davis, 6th Dist. Lucas No. L-16-1313, 2018-Ohio-2984, ¶ 45-46.
III. Community Control Sanction Revocation Review
{¶ 17} We review a trial court‘s decision to revoke a community control sanction for an abuse of discretion. State v. Clark, 6th Dist. Wood No. WD-12-073, 2013-Ohio-4831, ¶ 15. Abuse of discretion connotes the record shows the trial court‘s decision was unreasonable, arbitrary or unconscionаble. Id. We will not reverse the trial court‘s decision to revoke an offender‘s community control sanction if the record contains substantial evidence of the violation, consisting of more than a mere scintilla of evidence but less than a preponderance of evidence. Id.
{¶ 18} On December 14, 2017, the trial court held a great deal of discretion to fashion a sentence after finding appellant violated the conditions of community control pursuant to
{¶ 20} The record shows the trial court used the terminology of “community control” and “probation” interchangeably in the context of both the felony sentencing proceedings and the subsequent community control violation proceedings. Nevertheless, when the trial court revoked appellant‘s community control sanction and imposed a nine-month prison term on Decembеr 14, 2017, the prison term imposed was punishment for
{¶ 21} To comply with
{¶ 22} Nevertheless, appellant argued the trial court committed plain error because it was not authorized by law on December 14, 2017, to impose a prison term beyond 90-days pursuant to
{¶ 23} Since the September 29, 2017 effective date of
{¶ 24} “A question of statutory construction presents an issue of law that appellate courts review de novo.” City of Toledo v. Corr. Comm. of Northwest Ohio, 2017-Ohio-9149, 103 N.E.3d 209, ¶ 22 (6th Dist.). We review statutory language for plain meaning,
{¶ 25}
{¶ 26} We find the record contains substantial evidence of the clear and unambiguous first and fourth elements of
{¶ 27} We find the second and third elements of
{¶ 28} The General Assembly did not define “technical violation” anywhere in the new
{¶ 30} As stated by the Fifth District Court of Appeals, “The [General Assembly‘s] choice of the term ‘technical’ impliеs it has meaning distinct from ‘non-criminal’ violations.” Mannah at ¶ 14. We agree. As stated by the Twelfth District Court of Appeals, and followed by the Second, Fourth and Fifth District Court of Appeals, where “the special condition was a substantive rehabilitative requirement which addressed a significant factor contributing to appellant‘s criminal conduct” the violation “cannot be considered a technical violation of community control.” Davis at ¶ 18; Nelson at ¶ 32; Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062, 2018-Ohio-4506, at ¶ 13; Mannah at ¶ 13. We also agree. Thus, we find that appellant‘s non-felony conduct was not dispositive of the intended definition of “technical violation” of
{¶ 31} In this case appellant did not object to receiving the fеlony sentence of a community control sanction with 13 terms and conditions. At his March 17, 2017 sentencing hearing, appellant specifically represented to the trial court he wanted to transfer his community control supervision to West Virginia because: (1) he lived in Huntington, West Virginia; (2) he was a full-time student in West Virginia studying electrical engineering and receiving decent grades; (3) he worked for Buckeye Defense in West Virginia selling prepaid legal services door to door; and (4) he had sole custody of two children aged ten and eight. Appellant expressed his concerns that unless his сommunity control supervision was transferred to West Virginia, he would lose his job, lose his college enrollment, and lose custody of his children. Despite significant reservations with appellant‘s past criminal record and lack of remorse for the current offense, the trial court imposed the four-year community control sanction and specifically tailored a number of conditions to appellant, including maintaining his employment and college enrollment and authorizing the transfer of his community control supervision to West Virginia.
{¶ 32} Thereafter, appellant admittеd to absconding from reporting to his probation officer in West Virginia, which was a clear violation of his community control sanction. The record contains the October 8, 2017 sentencing hearing transcript and
{¶ 33} We find appellant requested and obtained from the trial court a specifically tailored community control sanction in West Virginia. We find the sanction in West Virginia was special to appellant as a substantive rehabilitative requirement to address significant factors that might reverse appellant‘s path of criminal conduct, namely to maintain access to a gоod education, full time lawful employment, and custody of his two minor children. We find appellant willfully absconded from community control supervision in West Virginia, which was not a “technical violation” pursuant to
{¶ 34} Appellant‘s sole assignment of error is not well taken.
IV. Conclusion
{¶ 35} On consideration whereof, we find that substantial justice has been done in this matter and the sentencing judgment of the trial court to be lawful. The judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, P.J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.