State v. EischenState v. Eischen
Henry Schaefer, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Gary Allen Eischen, appeals from the November 29, 2018 judgment of the Lucas County Court of Common Pleas, which revoked his community control sanction and sentenced him to a 14-month prison term, to be served consecutive to a judicial sanction of 1146 days imposed for violation of his postrelease control sanction imposed in a prior action.
{¶ 3} On July 11, 2016, appellant was convicted of a lesser included offense of attempted failure to notify,
{¶ 4} On January 9, 2018, appellant admitted to a community control violation, failing to report to his parole officer, without a hearing. Appellant failed to appear for sentencing but was subsequently arrested and sentenced on November 29, 2018, to 14 months in prison pursuant to
{¶ 5} Appellant appeals and asserts a single assignment of error:
Appellant‘s sentence is contrary to law.
{¶ 6} Appellant first argues the imposition of a 14-month sentence for violation of his community control sanction. He asserts the violation was a technical violation, not a new felony offense, and
{¶ 7} Plain errors will be considered on appeal only if: 1) there was actual error, 2) the error is obvious from the record, and 3) the error affected substantial rights, which requires we find beyond a reasonable doubt that but for the error, the outcome of the trial would have been otherwise. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16.
{¶ 8} Pursuant to
(ii) 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.
{¶ 9} At issue in this case is whether the failure of the trial court to determine if there was a technical violation restricts the court‘s ability to impose a prison term of more than 180 days.
{¶ 10} The term “technical violation” is not defined in
{¶ 11} Furthermore, in State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶ 27-30, we found that “a willful violation of the conditions of a probation
{¶ 12} Applying the rationale of the Calhoun case, we find plain error has not been established in this case regarding the imposition of a penalty for the violation of a community control condition by willfully failing to report to a probation officer. Appellant was initially convicted in 2016 of the reduced charge of attempted failure to report his address to the sheriff as a Tier I sex offender. The court imposed a community control sanction. Shortly after appellant was released from the correction facility in 2017, where he had been serving 60 days for another conviction, appellant failed to contact his parole officer and his whereabouts were unknown. A warrant was issued and on January 9, 2018, appellant appeared to admit to the community control violation of failing to report to his parole officer without a hearing. Subsequently, he did not appear for sentencing on the community control violation, despite having been allowed a continuance with the warning that during the interim he had better make progress on his compliance with the community control conditions. The court issued a warrant for appellant‘s arrest and he was apprehended approximately seven months later. He later
{¶ 13} Viewing the record as a whole, it is clear appellant‘s failure to register his address as a Tier I sex offender, failure to comply with his community control sanction to report to his probation officer, failure to appear for sentencing on the community control violation, and failure to comply with any of the community control conditions for another seven months until his apprehension represented a pattern of willful violation of court orders to avoid the requirements imposed upon him by the court. This was not a case where the offender merely missed a single meeting with his probation officer. Therefore, we find insufficient evidence to warrant a finding of plain error.
{¶ 14} Appellant also argues that the trial court committed error when it imposed a prison term for the violation of a condition of postrelease control. He contends the trial court could have terminated his postrelease control sanction in 2016 when he committed a second felony offense, attempted failure to notify. However, the court did not do so and lacked authority to terminate his postrelease control sanction for the violation of a community control sanction imposed as a sentence for the 2016 felony offense.
{¶ 15}
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{¶ 17} Therefore, we find appellant‘s sole assignment of error well-taken.
{¶ 18} Having found that the trial court did commit error prejudicial to appellant and that substantial justice has not been done, the judgment of the Lucas County Court of Common Pleas is reversed because the trial court could not terminate appellant‘s postrelease control. The sentence of 1146 days imposed for violation of his postrelease control is vacated. This case is remanded to the trial court for resentencing because the trial court cannot terminate a postrelease control sanction for the violation of a community control sanction. Appellee is ordered to pay the costs of this appeal pursuant to
Judgment reversed and remanded.
Mark L. Pietrykowski, J. JUDGE
Arlene Singer, J. JUDGE
Gene A. Zmuda, P.J. JUDGE CONCUR.
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/.