[Cite as State v. Tackett, 2019-Ohio-2253.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                      Court of Appeals No. E-18-040

          Appellee                                 Trial Court No. 2016-CR-116

v.

Brooke A. Tackett                                  DECISION AND JUDGMENT

          Appellant                                Decided: June 7, 2019

                                              *****

          Kevin J. Baxter, Erie County Prosecuting Attorney, and
          Anthony A. Battista III, Assistant Prosecuting Attorney,
          for appellee.

          Matthew A. Craig, for appellant.

                                              *****

          SINGER, J.

          {¶ 1} Appellant, Brooke A. Tackett, appeals from the July 2, 2018 judgment of the

Erie County Court of Common Pleas, where the court revoked her community control

sanction and sentenced her to a total prison term of 22 months. Finding no error, we

affirm.
                                       Background

       {¶ 2} On March 30, 2017, the trial court sentenced appellant to 4 years of

community control and to a 22-month suspended prison term for possession of heroin,

receiving stolen property, theft, forgery, and complicity to commit theft.

       {¶ 3} As conditions for her community control, she was to report to her probation

officer, obey all laws and ordinances, follow orders of the court and any assigned

probation officers, not use drugs, submit to drug/alcohol tests, and obtain and maintain

employment.

       {¶ 4} On May 30, 2018, appellant’s probation officer filed with the trial court a

probable cause letter, alleging appellant violated her conditions and asserting that her

community control sanction should be revoked.

       {¶ 5} The letter specifically alleged appellant committed seven violations. First,

she failed to check in biweekly as directed by her probation officer, and she missed two

visits in May 2018. Second, she was charged with identity theft and forgery, although

these charges were dismissed in the municipal court to be brought before a grand jury.

Third, she was “non-compliant” about drug testing and missed 24 calls and 6 tests.

Fourth, she twice tested positive for cocaine and opiates in April and May 2018. Fifth,

she failed to comply with a drug testing program. Sixth, she failed to obtain and maintain

employment. Seventh, she failed to show proof she searched for employment during

May 2018.




2.
       {¶ 6} A hearing on the letter was held June 25, 2018. Appellant admitted in open

court she violated her community control as alleged. The following exchanges occurred

after the hearing began:

              COURT: Counsel, how do you want to proceed?

              [COUNSEL]: At this time, Your Honor, my client is going to admit

       to the offenses and proceed to sentencing.

              COURT: Okay. Thank you. Ms. Tackett, you understand you have

       a right to a hearing on the merits today?

              [APPELLANT]: Yes, sir.

              COURT: And you know what that means, ma’am?

              [APPELLANT]: Yes.

              COURT: When the Court—

              [APPELLANT]: She explained it to me.

              COURT: She explained it to you?

              [APPELLANT]: Yes.

              COURT: Your counsel?

              [APPELLANT]: Yes.

              COURT: Okay. And so you understand at that hearing you would

       have a right to challenge any evidence brought against you?

              [APPELLANT]: Yes.




3.
              COURT: And do you understand at that hearing you would have no

       burden at all? You don’t have to prove that you didn’t violate, and the

       State of Ohio and Probation would have to prove that you did violate.

              [APPELLANT]: Yes.

              COURT: Do you understand that?

              [APPELLANT]: Yes.

       {¶ 7} The trial court afterward explained that such admission could lead to

revocation of appellant’s community control sanction, and she confirmed she understood.

       {¶ 8} The trial court accepted her admission. Appellant’s counsel then argued the

basis for one violation was the felony charges, which had been dismissed from the

municipal court at that time. Counsel argued that as a result of the dismissal appellant

could not be sentenced to more than 90 days in prison pursuant to R.C.

2929.15(B)(1)(c)(i).

       {¶ 9} The trial court acknowledged the statute was “new law” for which there was

not much case law established, but nonetheless revoked appellant’s community control

and imposed the 22 months it had previously suspended.

       {¶ 10} The judgment entry was journalized on July 2, 2018. Appellant timely

appeals.




4.
                                   Assignment of Error

       {¶ 11} Appellant sets forth the following assigned error:

              THE TWENTY-TWO-MONTH PRISON SENTENCE IMPOSED

       BY THE TRIAL COURT IS CONTRARY TO LAW AND

       CONSTITUTES REVERSIBLE ERROR BECAUSE IT EXCEEDS THE

       NINETY-DAY LIMITATION SET FORTH IN OHIO REVISED CODE

       2929.15(B)(1)(c)(i).

                                   Assignment of Error

       {¶ 12} In her sole assigned error, appellant argues R.C. 2929.15(B)(1)(c)(i)

mandates she be sentenced to no more than 90 days in prison because her community

control was revoked due to technical violations. Appellee asserts appellant committed

non-technical violations.

       {¶ 13} We review a trial court’s decision to revoke a community control sanction

for an abuse of discretion. State v. Clark, 6th Dist. Wood No. WD-12-073, 2013-Ohio-

4831, ¶ 15. Abuse of discretion connotes the record shows the trial court’s decision was

unreasonable, arbitrary or unconscionable. Id. We will not reverse the trial court if the

record contains substantial evidence of the violation, consisting of more than a mere

scintilla of evidence but less than a preponderance of evidence. Id.

       {¶ 14} R.C. 2929.15(B)(1)(c)(i) states, in pertinent part, as follows:

              If the conditions of a community control sanction are violated or if

       the offender violates a law * * *, the sentencing court may impose upon the




5.
       violator * * * 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 * * *: (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 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 ninety days.

       {¶ 15} “Our first step is to determine if each statutory element is clear and

unambiguous and supported by the record.” State v. Calhoun, 6th Dist. Wood No. WD-

17-067, 2019-Ohio-228, ¶ 25. The elements are: “(1) a community control sanction

imposed for a felony conviction of the fifth degree, (2) a technical violation of the

conditions of the community control sanction, (3) a prison term imposed on or after

September 29, 2017, for a technical violation, and (4) the prison term exceeding 90 days

for the violation.” Id.

       {¶ 16} The General Assembly’s choice of the term “technical” implies it has

meaning distinct from noncriminal violations. (Quotations omitted.) Calhoun at ¶ 30,

citing State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 14.

“[W]here the special condition was a substantive rehabilitative requirement which

addressed a significant factor contributing to appellant’s criminal conduct the violation




6.
cannot be considered a technical violation of community control.” (Citations and

quotations omitted.) Id.

       {¶ 17} As an example of what constitutes a non-technical violation, we look to our

recent decision in Calhoun. Delorean Calhoun specifically argued the court below

committed error by imposing a sentence beyond 90 days because R.C. 2929.15(B)(1)(c)(i)

applied. We disagreed and affirmed the nine-month sentence. Id. at ¶ 33.

       {¶ 18} Specifically, Calhoun “admitted to absconding from reporting to his

probation officer in West Virginia, which was a clear violation of his community control

sanction.” Id. at ¶ 32. We described “absconding” as a failure “to report for supervision

or otherwise comply with the terms and conditions of [a] community control sanction.”

Id. We held willfully absconding from community control supervision was a non-

technical violation under R.C. 2929.15(B)(1)(c)(i). Id. at ¶ 33.

       {¶ 19} Here we are also guided by the mandate that the amended statute in effect

at the time of sentencing as articulated in Calhoun applies. Id. at ¶ 23, citing State v.

Gillespie, 6th Dist. Lucas No. L-05-1168, 2006-Ohio-1394, ¶ 11 and R.C. 1.58(B). As a

result and on the authority of Calhoun, we hold appellant committed non-technical

violations for which her previously suspended sentence can be re-imposed.

       {¶ 20} Review of the May 30, 2018 probable cause letter and June 25, 2018

hearing transcript reveals appellant admitted in open court to absconding from reporting

to her probation officer, being charged with two new felonies, missing numerous drug




7.
tests/calls, testing positive for cocaine and illicit prescription pills on two separate

occasions, and failing to diligently search for and maintain verifiable employment.

       {¶ 21} We find these violations are not technical violations because they are not

merely general administrative requirements to facilitate supervision during the period of

the community control sanction. Id. at ¶ 29. Rather, we find they are either criminal in

nature or specifically tailored substantive rehabilitative requirements. Id. at ¶ 28-29.

       {¶ 22} Accordingly, appellant’s sole assignment of error is not well-taken.

                                         Conclusion

       {¶ 23} The July 2, 2018 judgment of the Erie County Court of Common Pleas is

affirmed. The stay of sentence ordered November 11, 2018, is terminated. Appellant is

ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                           Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




8.
                                                                     State v. Tackett
                                                                     C.A. No. E-18-040




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Christine E. Mayle, P.J.                                  JUDGE
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/.




9.
