[Cite as State v. Fisher, 2019-Ohio-2420.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                               ATHENS COUNTY

STATE OF OHIO,                  :
                                :   Case No. 18CA27
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
BRYAN K. FISHER,                :
                                :
     Defendant-Appellant.       :   Released: 06/11/19
_____________________________________________________________
                          APPEARANCES:

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.
_____________________________________________________________

McFarland, J.

        {¶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
Athens App. No. 18CA27                                                                                    2

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.

                                 FACTS AND PROCEDURE

        {¶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
1
  SEPTA is a community based correctional facility that provides chemical dependency services, among
others. https://drc.ohio.gov/septa
2
  The Landing at Cedar Ridge is residential treatment facility that “provide[s] 24 hour medically monitored
long-term intensive treatment services for men and women suffering from substance abuse disorders.”
(https://www.crbhs.org/
Athens App. No. 18CA27                                                       3

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:

        “[D]efendant is ordered to enter and successfully complete

        The Landing FORTHWITH, and shall sign all requested

        releases and follow any aftercare recommendations. If the

        defendant leaves or is terminated from the Landing, he shall
Athens App. No. 18CA27                                                         4

       be transported to the Southeastern Ohio Regional Jail by the

       Athens County Sheriff’s Office.”

      {¶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
Athens App. No. 18CA27                                                         5

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.

                APPELLANT’S 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.
Athens App. No. 18CA27                                                            6

      {¶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.

                                    ANALYSIS

      {¶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
Athens App. No. 18CA27                                                           7

consider an error that was raised in the trial court, absent plain error. State v.

Hill, 92 Ohio St.3d 191, 196, 2001-Ohio-141, 749 N.E.2d 274. 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 No. 16CA14, 2017-Ohio-8469, 100

N.E.3d 53, ¶ 24, citing State v. Layne, 4th Dist. Highland No. 11CA17,

2012-Ohio 1627, ¶ 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 Nos. 18CA1061,

18CA1062, 20108-Ohio-4506, ¶ 10, State v. Marcum, 2016-Ohio-1002, 146

Ohio St.3d 516, 59 N.E.3d 1231, ¶ 23. “Clear and convincing evidence has

been defined as ‘[t]he measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the allegations

sought to be established. It is intermediate, being more than a mere

preponderance, but not to the extent of such certainty as required beyond a

reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.’ ” In re I.M., 4th Dist. Athens No. 10CA35, 2011-Ohio-560,
Athens App. No. 18CA27                                                        8

¶ 6, quoting In re McCain, 4th Dist. Vinton No. 06CA654, 2007-Ohio-1429,

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:

           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:

           (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.
Athens App. No. 18CA27                                                           9

      {¶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 Adult Parole Auth., 66

Ohio St.3d 121, 124, 609 N.E.2d 546 (1993), quoting Inmates' Councilmatic

Voice, supra, 541 F.2d at 635, fn. 2. This court adopted Taylor’s definition

of a technical violation in the context of community control sanctions,

holding that “a technical violation of community control for purposes

of R.C. 2929.15(B) is a violation that is not criminal in nature.” State v.

Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062, 2018-Ohio-4506, ¶ 13.

      {¶27} However, in State v. Blake, 4th Dist. Hocking No. 18CA6,

2018-Ohio- 5413, ¶ 11, we recognized a slight narrowing of the definition of

a technical violation adopted in Abner, holding that the violation of a special

condition imposed as part of a community control sanction, even though not
Athens App. No. 18CA27                                                       10

criminal in nature, was more than mere technical violation under R.C.

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

      {¶28} In Blake, the defendant entered guilty pleas to possession and

trafficking in drugs, both fifth degree felonies. Blake at ¶ 3. The court

granted the defendant intervention in lieu of conviction and placed the

defendant under the supervision of Adult Parole Authority for three years,

which included certain terms and conditions that included having no contact

with felons, and abstaining from using or possessing illegal drugs or alcohol.

Id.

      {¶29} Blake violated her community control by associating with

criminals and drinking alcohol. Blake, ¶ 4. The trial court revoked her

treatment in lieu of conviction and sentenced her to 24 months, but

suspended the prison term and placed her on community control sanctions

for five years with certain conditions. Id.

      {¶30} Blake admitted to a second violation of her community control

sanctions for using non-prescribed opiates (Percocet). Blake, ¶ 5. The trial

court continued the community control sanctions and imposed certain

conditions, including that she “enter the STAR Program and Aftercare

Program, successfully complete said programs and follow through with the
Athens App. No. 18CA27                                                     11

recommendations made. Successful completion of said programs will result

in termination of probation.” Id.

      {¶31} The State again alleged that Blake violated her community

control sanctions and asked that her supervision be revoked. Blake, ¶ 6. The

State alleged that Blake “ ‘knowingly caused STAR staff members to

believe that [she] would cause serious physical harm to them or their family

members’ ” and [she] failed to complete the STAR program, when * * *

[she] was unsuccessfully terminated from the STAR program.” Id. The trial

court revoked Blake’s community control sanctions and imposed a 24-month

sentence. Id.

      {¶32} Blake appealed asserting that the trial court's 24-month prison

sentence was clearly and convincingly contrary to law because it exceeded

the 90-day sentence cap for technical violations of community control

sanctions pursuant to R.C. 2929.15(B)(1)(c)(i). Blake at ¶ 8.

      {¶33} Blake reaffirmed that technical violations of community control

sanctions are violations that are not criminal in nature. Id. at ¶ 8, 9.

However, Blake also adopted the rationale from the Fifth and Twelfth

District Courts of Appeals that community based correctional facility

treatment was a rehabilitative requirement imposed as a special condition of

community control sanctions, and even though such a violation was not
Athens App. No. 18CA27                                                      12

criminal in nature, it was nevertheless a non-technical violation, making the

90-day sentencing cap in R.C. 2929.15(B)(1)(c)(i) inapplicable for fifth

degree felonies. Blake, at ¶ 10 and 11, citing State v. Davis, 12th Dist.

Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 16-18, State v. Mannah,

5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, see also State v.

Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶ 33 (condition

requiring Calhoun to transfer community control sanctions to West Virginia

was not a technical violation), State v. Nelson, 2nd Dist. Campaign No.

2018-CA-5, 2018-Ohio-4763, ¶ 32 (no contact order was not a technical

violation). Such an interpretation is consistent with “[t]he [General

Assembly's] choice of the term ‘technical[,]’ [which] implies it has meaning

distinct from ‘non-criminal’ violations.” Mannah at ¶ 14.

      {¶34} We applied this reasoning in assessing Blake’s violation:

        “[A]ppellant was discharged from the CBCF; she did not

        voluntarily sign herself out. Nevertheless, the end result is

        the same - appellant failed to complete the STAR program,

        which constitutes a violation of community control.

        Therefore, consistent with Cozzone, Davis, and Mannah, we

        conclude that the requirement for appellant to complete a
Athens App. No. 18CA27                                                         13

        CBCF is a special condition of community control and, thus,

        a non-technical violation.” Blake at ¶ 11.

      {¶35} Because Blake’s violation was not a technical violation, the 90-

day sentence cap in R.C. 2929.15(B)(1)(c)(i) did not apply, and we affirmed

the trial court’s 24-month sentence. Id.

      {¶36} We find that Blake is controlling of Appellant’s appeal.

Appellant has two underlying drug offenses. One of his conditions of

community control sanctions was to enter and complete SEPTA, which

treats substance abuse. He was terminated from SEPTA for drug use, and

then ordered to enter and complete The Landing, which also treats substance

abuse, but he was terminated from that program as well. Under Blake,

Appellant’s failure to complete SEPTA and The Landing were more than

technical violations of his community control sanctions, they were violations

of a substantive rehabilitation requirement imposed by the trial court as a

condition of Appellant’s community control sanctions, i.e. drug treatment.

Therefore, under Blake, R.C. 2929.15(B)(1)(c)(ii) did not cap Appellant’s

sentence at 90 days, which means the trial court’s imposition of a 24-month

sentence was clearly and convincingly not contrary to law. As a result, the

trial court committed no error, let alone an error that affected Appellant’s

substantial rights so as to create a manifest miscarriage of justice.
Athens App. No. 18CA27                                                 14

       {¶37} Accordingly, we overrule Appellant’s assignment of error and

affirm the judgment of the trial court.

                                             JUDGMENT AFFIRMED.
Athens App. No. 18CA27                                                         15

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
