State v. PalmerState v. Palmer
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin, Ohio 43017 Attorney for Defendant-Appellant
Rendered on the 29th day of March, 2019.
TUCKER, J.
{¶ 1} While serving a sentence of community control sanctions (CCS) for a fourth-degree felony, Appellant, Jeffrey Palmer, admitted that he had violated the terms of his CCS by testing positive on multiple occasions for methamphetamine. This admission resulted in the trial court’s revocation of CCS and the imposition of an 18-month prison term. We conclude that Palmer’s admission to felonious drug use allowed the trial court to impose a prison term in excess of 180 days, under
Facts and Procedural History
{¶ 2} In January 2018, Palmer pleaded guilty to receiving stolen property, a motor vehicle, which was a fourth-degree felony. The trial court sentenced Palmer to a two-year term of CCS and stated that, if Palmer violated CCS, he would be sentenced to 18 months in prison, except as limited by
{¶ 3} Approximately three months after Palmer was sentenced, a CCS revocation proceeding was initiated based on his alleged violations of three CCS conditions. The first allegation, and the only one relevant to this discussion, was that on four occasions
{¶ 4} At the revocation hearing, Palmer admitted he had tested positive for methamphetamine and amphetamine. In exchange for this admission, the State dismissed the remaining alleged violations. The trial court, based upon Palmer’s admission, revoked the CCS and sentenced him to an 18-month prison term. This appeal followed.
Analysis
{¶ 5} Palmer’s sole assignment of error is as follows:
THE TRIAL COURT’S DECISION TO SENTENCE PALMER TO AN EIGHTEEN-MONTH PRISON TERM FOR FAILED DRUG SCREENINGS IS CONTRARY TO LAW BECAUSE FAILING A DRUG SCREENING [IS] A TECHNICAL VIOLATION OF HIS [CCS] THAT IS NOT A NEW FELONY OFFENSE.
{¶ 6} This assignment of error requires a review of
(B)(1) If the conditions of a community control sanction are violated * * * , the sentencing court may impose upon the violator one or more of the following penalties:
* * *
(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, as applicable:
* * * (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.1
* * *
{¶ 7} Thus, when a defendant, while serving a CCS sentence on a fourth-degree felony offense that is neither an offense of violence nor a sexually oriented offense, is found to have violated a technical CCS condition or to have committed a non-felony criminal offense, any prison term imposed upon revocation of CCS is limited to 180 days. The trial court was aware of this limitation but concluded it was not applicable to Palmer. At the CCS violation hearing, the trial court stated:
* * * The Court does find that under [
R.C.] 2929.15(B)(1)(c)(ii) , the 180-day limit on community control violation, an exception to that is a new felony offense that [is] committed.The language of [
R.C.] 2929.15(B)(1)(c)[ii] does [not] say anything about a conviction. It just says a new felony offense. So I do find that the use, the possession use [sic] of methamphetamine, is a new felony offense.
{¶ 8} The three Ohio appellate districts that have reviewed the “technical violation”
{¶ 9} In State v. Johnson, the defendant, while serving a CCS sentence for a fifth-degree felony, was found to have violated a CCS condition by testing positive for methamphetamine; Johnson ultimately admitting this and other violations. The trial court revoked Johnson’s CCS and imposed a 12-month prison term. On appeal, Johnson argued that, because the drug use did not result in a criminal charge, it constituted a technical CCS violation. The Fifth District disagreed, stating that “[Johnson’s] use of methamphetamine * * * constituted a felony offense rather than a technical [violation] and the trial court was not required to cap her prison sentence at 90 days.” Johnson at ¶ 15.
{¶ 10} In State v. Cozzone, the defendant, while serving a CCS sentence for three fourth-degree felonies and one fifth-degree felony, overdosed on heroin, which triggered
{¶ 11} We agree with our sister districts that a defendant’s felonious use of drugs while serving a CCS sentence allows a trial court, under
Conclusion
{¶ 12} Palmer’s only assignment of error is overruled. The judgment of the Clark County Common Pleas Court is affirmed.
DONOVAN, J. and HALL, J., concur.
John M. Lintz
April F. Campbell
Hon. Douglas M. Rastatter