State v. Fisher
| Decision Date | 11 June 2019 |
| Docket Number | No. 18CA27,18CA27 |
| Citation | 2019 Ohio 2420,138 N.E.3d 513 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Bryan K. FISHER, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Timothy Young, Ohio State Public Defender, and Craig M. Jaquith, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
Keller Blackburn, Athens County Prosecuting Attorney, and Robert P. Driscoll, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} This is an appeal from an Athens County Court of Common Pleas judgment entry terminating Appellant's community control sanctions and imposing a prison term.
{¶2} On November 7, 2018, Appellant pleaded guilty to aggravated possession of drugs and possession of drugs, both fifth degree felonies. The trial court imposed five years of community control sanctions with special conditions that he enter and complete SEPTA1 , a community based correctional facility, and The Landing at Cedar Ridge (The Landing)2 , a residential treatment program. Appellant failed to complete both, and the trial court revoked his community control sanctions and imposed a twenty-four month sentence for the underlying drug offenses.
{¶3} On appeal, Appellant asserts that the trial court erred because his sentence is contrary to R.C. 2929.15(B)(1)(c)(i). Finding that the sentence cap in this provision does not apply because Appellant's violation of his community control sanctions was more than a technical violation, we affirm the trial court's judgment.
{¶4} The State charged Appellant with two fifth degree felonies: aggravated possession of drugs and possession of drugs, both in violation of R.C. 2925.11(A). Appellant pleaded guilty to both charges.
{¶5} On December 12, 2017, the trial court sentenced Appellant to five years of community control sanctions, as well as the following conditions including, among others: (1) enter and successfully complete SEPTA, (2) submit to drug and alcohol assessments, (3) not possess or consume alcohol, and (4) not take or possess drugs, except for as ordered by his physician.
{¶6} On February 8, 2018, the State filed a notice of violation of community control sanctions alleging that Appellant committed four violations, including a positive drug test and that he had been terminated from SEPTA. The State moved the trial court to impose the underlying term of incarceration.
{¶7} On March 12, 2018, Appellant filed a Motion for Furlough asking the court to allow him to be examined by a medical professional because of a leg problem.
{¶8} At a March 13, 2018 hearing, Appellant stipulated to violating the terms and conditions of his community control sanctions.
{¶9} On April 13, 2018, the trial court issued a judgment entry continuing Appellant's five-year community control sanctions, but added additional conditions, including that:
{¶10} On May 31, 2018, the State filed a notice of violation of community control sanctions and notice of hearing alleging that "[Appellant] was terminated unsuccessfully from The Landing."
{¶11} Then, on June 5, 2018, the trial court issued an entry granting Appellant a medical furlough to receive medical treatment at Riverside Methodist Hospital. The entry provided that he would only be released from Riverside directly into the custody of the Athens County Sheriff's office and be returned to the Southeastern Ohio Regional Jail immediately.
{¶12} The State filed a supplemental notice of violation of community control sanctions and notice of hearing on July 7, 2018, alleging that, in addition to Appellant's failure to complete The Landing, he was discharged from treatment from Riverside Methodist Hospital to a family member, as opposed to being released to a deputy and returned to jail as required, and that his whereabouts were unknown.
{¶13} The trial court held a hearing to review both alleged violations on August 8, 2018. The State moved the court to revoke Appellant's community control sanctions and impose the entire prison sentence. Appellant asked the court to continue his community control sanctions. The trial court revoked his community control sanctions and imposed 12-month sentences for each of the two underlying drug offenses to be served consecutively for an aggregate 24-month sentence.
{¶14} Appellant has appealed that judgment to this court asserting a single assignment of error.
{¶15} Appellant's sole assignment of error contends "the trial court erred when it imposed a sentence upon Bryan Fisher that was contrary to R.C. 2929.15(B)(1)(c)(i), which imposes a 90 day sentence cap on fifth-degree-felony sentences imposed for violations of community control sanctions that are either technical violations or a non-felony criminal offenses."
{¶16} Appellant argues that his community control sanctions violation of failing to complete The Landing program was a mere technical violation, and that leaving the hospital and not returning to jail did not constitute a felony offense. Consequently, he argues, the 90-day sentence cap in R.C. 2929.15(B)(1)(c)(i) applied, making the trial court's imposition of the 24-month sentence clearly and convincingly contrary to law.
{¶17} The State makes four different arguments in response to Appellant's assignment of error.
{¶18} First, the State argues that when Appellant failed to return to jail after his medical furlough, he committed a felony (escape), which would mean that the 90-day sentence cap in R.C. 2929.15(B)(1)(c)(i) would not apply because it only limits sentences imposing community control sanctions violations that are not felony offenses.
{¶19} Second, the State argues that the 90-day sentence cap in R.C. 2929.15(B)(1)(c)(i) applies only if the underlying offense is a single fifth degree felony offense.
{¶20} Third, the State argues that R.C. 2929.15(B)(1)(c)(i) sentencing provision conflicts with R.C. 2929.14(A)(5) and R.C. 2929.15(B)(3), and is therefore of no force and effect.
{¶21} Fourth, the State argues that Appellant's failure to successfully complete The Landing program was a not a technical violation, which means that the 90-day sentence cap in R.C. 2929.15(B)(1)(c)(i) would not apply because it only caps sentences for violations of community control sanctions that are technical violations.
{¶22} Initially, we note that the issue of whether Appellant's violation of his community control sanctions was a technical violation was never raised in the trial court. The general rule is that an appellate court need not consider an error that was raised in the trial court, absent plain error. State v. Hill , 92 Ohio St.3d 191, 196, 749 N.E.2d 274 (2001). To find plain error, a reviewing court: (1) must find an error, (2) determine that the error is plain, and (3) must find the error affected the outcome of the case. State v. Deckard , 4th Dist. Gallia, 2017-Ohio-8469, 100 N.E.3d 53, ¶ 24, citing State v. Layne , 4th Dist. Highland No. 11CA17, 2012-Ohio-1627, 2012 WL 1247209, ¶ 8. "[N]otice of plain error under Crim.R. 52(B) is to be taken ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ " Id., quoting Layne.
{¶23} An appellate court may reverse a sentence only if it is clearly and convincingly not supported by the sentencing court's findings, or it is otherwise contrary to law. State v. Abner , 4th Dist. Adams, 2018-Ohio-4506, 122 N.E.3d 582, ¶ 10, State v. Marcum , 146 Ohio St.3d 516, 2016 -Ohio- 1002, 59 N.E.3d 1231, ¶ 23. " In re I.M. , 4th Dist. Athens No. 10CA35, 2011-Ohio-560, 2011 WL 400510, ¶ 6, quoting In re McCain, 4th Dist. Vinton No. 06CA654, 2007-Ohio-1429, 2007 WL 914870, at ¶ 8.
{¶24} The provision that caps certain sentences imposed for community control sanctions violations is found in R.C. 2929.15(B)(1), which provides:
{¶25} Accordingly, in a case involving a fifth degree felony, if a defendant commits a technical violation of community sanctions, the sentence imposed by the trial court for that violation cannot exceed 90 days. However, R.C. 2929.15 does not define "technical violation."
{¶26} The Supreme Court of Ohio defined " ‘technical violations’ [of parole] as ‘those violations of the terms and conditions of the parole agreement which are not criminal in nature[,] such as failure to report to the parole officer, association with known criminals, leaving employment, leaving the State, etc.’ " State ex rel. Taylor v. Ohio...
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State v. Lincoln, 18CA22
...clearly and convincingly not supported by the sentencing court's findings, or it is otherwise contrary to law." State v. Fisher , 4th Dist. Athens, 2019-Ohio-2420, 138 N.E.3d 513, ¶ 23, citing State v. Abner , 4th Dist. Adams, 2018-Ohio-4506, 122 N.E.3d 582, ¶ 10, State v. Marcum , 146 Ohio......