State v. CroseState v. Crose
Appeal from Crawford County Common Pleas Court Trial Court No. 19-CR-0446
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: March 20, 2023
APPEARANCES:
Christopher Bazeley for Appellant
Bailey Higgins for Appellee
{1} Defendant-appellant, Candice Crose (“Crose“), appeals the September 7, 2022 judgment entry of the Crawford County Common Pleas Court‘s determination that Crose‘s community-control violation constitutes a non-technical violation and the imposition of a 6-month reserved-prison term consecutively to Crose‘s sentence imposed in Richland County. For the reasons that follow, we affirm in part and reverse in part.
{2} On October 29, 2019, the Crawford County Grand Jury indicted Crose for Identity fraud in violation of
{3} On July 1, 2020, Crose entered a guilty plea to the indictment pursuant to a negotiated-plea agreement. Importantly, the negotiated-plea agreement contained a joint-sentencing recommendation. Specifically, Crose and the State agreed to recommend that the trial court order a five-year term of community control. Further, the parties agreed to waive the preparation of a presentence investigation report prior to sentencing. Thereafter, the trial court convened a sentencing hearing wherein the trial court followed the parties’ joint-sentencing recommendation in its entirety. Further, the trial judge reserved a 12-month prison
{4} The trial court in Richland County judicially released Crose from prison on February 4, 2021. However, on February 23, 2021, a bench warrant was issued for Crose‘s arrest by Crawford County because she failed to report to her probation officer upon her judicial release from prison. After Crose was arrested on a bench warrant, her probation officer in Crawford County filed a notice of violation in the trial court seeking to revoke her community control based upon the failure to timely report after her release from prison.
{5} On September 6, 2022, the trial court held a community-control-revocation hearing. The trial court found that Crose violated community control and determined that the violation was a non-technical violation. Thereafter, the trial court revoked Crose‘s community control and sentenced her to a 6-month prison term to run consecutive to the sentence imposed by Richland County in case number 2019CR781. At the time that Crose was sentenced in Crawford County, she was already serving prison terms in her Richland County case.
{6} Crose filed a timely appeal from this judgment and raises two assignments of error for our review that we will review separately.2
The Trial Court Erred When It Found That Crose‘s Community Control Violation Was A Non-Technical Violation Under R.C. 2929.15.
{7} In her first assignment of error, Crose argues that the trial court erred by finding her violation of community-control sanctions to be a non-technical violation (i.e., absconding). Specifically, Crose asserts that her violation is a technical violation, which subjects the trial court to a sentencing cap for a fifth-degree felony under
Standard of Review
{8} The decision of a trial court finding a community-control violation will not be disturbed absent an abuse of discretion. State v. McKeithen, 3d Dist. Marion No. 9-08-29, 2009-Ohio-84, ¶ 7, citing State v. Ryan, 3d Dist. Auglaize No. 14-06-55, 2007-Ohio-4743, ¶ 7; State v. Espinoza, 3d Dist. Allen No. 1-21-48, 2022-Ohio-1807, ¶ 17. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
Analysis
{9} Here, the trial court found that Crose violated Crawford County condition number five
{10}
(B)(1) If the conditions of a community control sanction imposed for a felony 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 on the violator one or more of the following penalties:
(a) A longer time 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 section 2929.16, 2929.17, or 2929.18 of the Revised Code, including but not limited to, a new term in a community-based correctional facility, halfway house, or jail pursuant to division (A)(6) of section 2929.16 of the Revised Code;
(c) A prison term on the offender pursuant to section 2929.14 of the Revised Code and division (B)(3) of this section, provided that a prison term imposed under this division is subject to the following limitations and rules, 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, the prison term shall not exceed ninety days, provided that if the remaining period of community control at the time of the violation or the remaining period of the reserved prison sentence at that time is less than ninety days, the prison term shall not exceed the length of the remaining period of community control or the remaining period of the reserved prison sentence. If the court imposes a prison term as described in this division, division (B)(2)(b) of this section applies.
* * *
(Emphasis added.)
{11} In State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, the Supreme Court of Ohio defined a violation of a community-control sanction as a “nontechnical violation” if, considering the totality of the circumstances,
the violation concerns a condition of community control that was “specifically tailored to address” matters related to the defendant‘s misconduct or if it can be deemed a “substantive rehabilitative requirement which addressed a significant factor contributing to” the defendant‘s misconduct.
Id. at ¶ 26, citing State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 17-18.
{12} A violation is technical when the condition violated is akin to “an administrative requirement facilitating community control supervision.” Nelson at
a violation of the conditions of a community control sanction imposed for a felony of the fifth degree, * * * that is not an offense of violence and is not a sexually oriented offense, and to which neither of the following applies:
(1) The violation consists of a new criminal offense that is a felony or that is a misdemeanor other than a minor misdemeanor, and the violation is committed while under the community control sanction.
(2) The violation consists of or includes the offender‘s articulated or demonstrated refusal to participate in the community control sanction imposed on the offender or any of its conditions, and the refusal demonstrates to the court that the offender has abandoned the objects of the community control sanction or condition.
{13} Here, there simply is no dispute that it was Crose‘s responsibility to contact her Crawford County probation officer (Clay) upon her judicial release. (See State‘s Ex. 1). Moreover, there is no dispute that Clay‘s only contact with Crose occurred approximately three weeks after her release from the Richland County Jail and upon her apprehension on a bench warrant. Thus, Crose‘s failure to contact Clay was a failure to make herself available for supervision entirely. (See Sept. 6, 2022 Tr. at 32) (“I found that the State has proven by a preponderance of the evidence it‘s a violation by nonreporting, in other words, absconding from supervision.“) To us, Crose‘s lack of compliance supports the trial court‘s determination that Crose had absconded, a non-technical violation of her community-control sanctions. See
{14} Hence, we conclude that the trial court did not err by determining that Crose‘s violation of a condition of her community-control sanctions was a non-technical violation.
{15} Accordingly, Crose‘s first assignment of error is overruled.
Assignment of Error II
The Trial Court Failed To Advise Crose Of The Possibility Of Consecutive Sentences For A Community Control Violation At Her Original Sentencing.
Standard of Review
{17}
Analysis
{18} The record reveals that the trial court and the State were aware when Crose entered her guilty plea (in Crawford County on July 1, 2020) that she (Crose)
{19} At the time that Crose was sentenced for her community-control violation, the Supreme Court of Ohio had accepted State v. Jones, ___ Ohio St.3d ___, 2022-Ohio-4485 for consideration of a certified conflict between several Ohio Appellate Districts. Jones at ¶ 1. The certified question involved “whether a trial court, when imposing a prison sentence that it had previously notified the offender could be imposed upon revocation of community control (“reserved[-]prison term“), may require that the sentence be served consecutively to other sentences being served by the offender.” Id. When the Supreme Court released its decision, in State v. Jones, supra, on December 15, 2022, the trial court herein had already imposed Crose‘s reserved-prison term consecutive to her Richland County sentence. In Jones, supra, the Supreme Court held that a “[r]eserved[-]prison term may be ordered to be served consecutively to any other sentence at a community-control-revocation hearing if notice was given when the prison term was reserved
{20} Thus, the Supreme Court‘s clarification of the consecutive-sentence-notification requirement for reserved-prison terms (to be imposed consecutively to another prison term at the time of revocation) rendered the trial court‘s imposition of its 6-month prison term consecutive to the sentence in her Richland County case contrary to law.
{21} Accordingly, Crose‘s second assignment of error is sustained.
{22} Having found no error prejudicial to the appellant herein in the particulars assigned and argued in the first assignment of error, we affirm the judgment of the trial court, in part.
{23} However, having found error prejudicial to the appellant herein in the particulars assigned and argued in the second assignment of error, in part, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
WILLAMOWSKI, J., concurs.
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Judgment Affirmed in Part, Reversed in Part and Cause Remanded
{24} I agree with the majority‘s resolution of the second assignment of error based upon the Supreme Court of Ohio‘s recent decision in State v. Jones, ___ Ohio St.3d ___, 2022-Ohio-4485; however, I write separately to express my opinion that the partial dissent in Jones contains a better reasoned analysis. In my view, “The plain language of former