State v. GrahamState v. Graham
I. Introduction
{¶ 1} This is an appeal from the judgment of the Wood County Court of Common Pleas, revoking appellant‘s, Andrew Graham, community control, and ordering him to serve 17 months in prison. Because the trial court erred when it sua sponte declared
{¶ 2} On May 4, 2017, appellant was indicted on one count of failure to provide notice of change of address in violation of
{¶ 3} On January 29, 2018, a warrant was issued for appellant‘s arrest. According to the order of arrest, appellant violated the conditions of his probation. Two days later, on January 31, 2018, the state filed a petition for revocation of community control. According to an exhibit attached to the petition, appellant
was instructed, by telephone, to report to the Wood County Adult Probation Department on December 19, 2017, at 3:00 p.m. The defendant failed to report as directed for his scheduled office appointment. After the defendant failed to report for 6 additional office appointments, [he] was allotted a final opportunity to report on January 26, 2018, at 3:00 p.m. The defendant failed to report as directed for his scheduled appointment.
{¶ 5} At the February 13, 2018 community control violation hearing, appellant, through counsel, stipulated to the violations outlined in the state‘s petition and waived a formal hearing. During the hearing, appellant‘s counsel explained that appellant failed to report to his scheduled appointments because he had no means of transportation to the probation department. Appellant‘s counsel emphasized that appellant called into the probation department on each occasion to inform his probation officer that he would not be able to make his appointment. Further, counsel highlighted the fact that appellant turned himself in as soon as the underlying arrest warrant was issued.
{¶ 6} Regarding the sentence available to the trial court, appellant‘s counsel argued that appellant‘s violations were technical in nature and were therefore subject to a maximum sentence of 180 days pursuant to
Judge, under the new law, unless there is a new crime committed, the Court is limited on felony fours to a 180 day sentence. As the law is written, unless a new felony is charged or a new misdemeanor is charged, it is, by definition, it is what is called a technical violation.
On the facts of this case, and what‘s set in the corroboration, they are clearly technical violations. In any event, whether that was a wise choice by the legislature is certainly open to debate, but that‘s what they did.
{¶ 7} The state then indicated that the technical-nontechnical distinction contained in
{¶ 8} In response to the parties’ agreement as to the application of
The Court does not believe that the law is constitutional because it violates the separation of powers. This Court indicated at the time of sentencing that I was reserving an 18-month prison sentence and I‘m not going to make a liar out of myself. At some point in time, the courts have to draw the line and say, you know, we have certain obligations, certain things that we have to do, and an intrusion by another agency into the judicial branch of government is unconstitutional.
At this time, based upon the defendant‘s stipulation to the violation, I am going to impose a 17 month prison sentence * * *. I‘ve outlined all of the reasons for that, based upon his complete and utter failure to comply with any of the community control sanctions. I believe that a sex offender who has failed to report his address and has been given every opportunity,
that this is a reasonable sentence. It‘s not waste of resources given all of the facts in this case.
{¶ 9} Following the court‘s imposition of the 17-month sentence, appellant‘s counsel moved the court for a stay of execution pending appeal, which the trial court denied. Thereafter, appellant filed a timely notice of appeal.
B. Assignment of Error
{¶ 10} On appeal, appellant presents one assignment of error for our review:
The trial court committed plain error in sentencing Appellant to prison in excess of one hundred eighty days on a fourth degree felony for a technical violation of his community control, in violation of
R.C. 2929.15(B)(1)(c)(ii) .
II. Analysis
{¶ 11} In his sole assignment of error, appellant argues that the trial court erred under
{¶ 12} Under
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.
{¶ 13} Here, the parties agreed below that
{¶ 14} In its brief to this court, the state acknowledges that appellant‘s violation “was a ‘technical’ violation, as
{¶ 15} Notably, appellant‘s brief to this court was filed on July 11, 2018, and the state‘s brief was filed on October 2, 2018. Thereafter, on January 25, 2019, we issued our decision in State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶ 29, in which we rejected appellant‘s interpretation of “technical violation” and stated that the determination of whether a violation is technical in nature depends upon whether the condition violated was “a specifically tailored substantive rehabilitative requirement or merely a general administrative requirement to facilitate supervision during the period of the sanction.” We went on to state that the term “technical” is distinct from the term “noncriminal.” Id. at ¶ 30, citing State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 14.
The outcome of this case would have likely been different had Neville failed to report for one meeting with her probation officer after she had previously reported. Failing to report one time after previously reporting may be a technical violation—depending on all of the other factors of that individual case. But here, Neville failed to report at all for over three months, and thus, failed to comply with any of the conditions imposed for her community control sanctions. Id.
{¶ 17} In light of our decision in Calhoun, and guided by the decision in Neville, we find no merit in appellant‘s assertion that his community control violation is technical merely because a failure to report does not constitute a new criminal offense. However, our analysis does not end there.
{¶ 19} Generally, courts do not address constitutional issues unless it is absolutely necessary to do so. City of Cleveland v. Williams, 8th Dist. Cuyahoga No. 106454, 2018-Ohio-2937, ¶ 12. This principle, known as the constitutional avoidance doctrine, is well established in Ohio law. In State ex rel. Herbert v. Ferguson, 142 Ohio St. 496, 52 N.E.2d 980 (1944), the Supreme Court of Ohio stated that “[c]onstitutional questions will not be decided until the necessity for a decision arises on the record before the court.” Id. at paragraph two of the syllabus; see also Ohioans for Fair Representation, Inc. v. Taft, 67 Ohio St.3d 180, 183, 616 N.E.2d 905 (1993), quoting Hall China Co. v. Pub. Utils. Comm., 50 Ohio St.2d 206, 210, 364 N.E.2d 852 (1977) (“‘Ohio law abounds with precedent to the effect that constitutional issues should not be decided unless absolutely necessary.‘“).
{¶ 20} “‘Although the doctrine of constitutional avoidance tends to apply most often in the context of appeals, the doctrine applies equally to the trial courts.‘” Williams at ¶ 13, quoting Fulton v. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 104561, 2017-Ohio-971, ¶ 10.
{¶ 21} Here, the trial court erred in reaching the constitutional question because the issue was never raised by the parties. In Ohio Pub. Emps. Retirement Sys. v. Coursen,
{¶ 22} As in Coursen and Williams, the trial court in this case held, sua sponte, that
{¶ 24} In essence, the trial court‘s decision striking
{¶ 25} In Gower, supra, a foreclosure case, the Second District similarly concluded that the trial court erred in declaring a statute unconstitutional where the parties did not challenge the
{¶ 26} As noted above, there was no controversy between the parties in this case regarding the constitutionality of
III. Limitations on Remand
{¶ 27} Our determination that the trial court erred in sua sponte addressing the constitutionality of
IV. Conclusion
{¶ 28} In light of the foregoing, the judgment of the Wood County Court of Common Pleas is hereby reversed. This matter is remanded to the trial court for a new violation hearing at which the trial court shall consider whether appellant‘s violation was technical or nontechnical under
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Christine E. Mayle, P.J.
JUDGE
Gene A. Zmuda, 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/.