[Cite as State v. Palmer, 2019-Ohio-1144.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2018-CA-74
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-598
                                                   :
 JEFFREY PALMER                                    :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                            Rendered on the 29th day of March, 2019.

                                              ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017
      Attorney for Defendant-Appellant

                                             .............
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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 R.C. 2929.15(B)(1)(c)(ii). The trial

court’s judgment, as such, will be affirmed.



                             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 R.C. 2929.15(B)(1)(c) for “technical” violations.

On the date he was sentenced to CCS, Palmer signed a document which set forth the

CCS conditions. These conditions included an obligation to obey all “federal, state, and

local laws and ordinances” and the more specific requirement not to “possess, use,

purchase, or have under [his] control any narcotic drug or other controlled    substance

* * *.” The CCS conditions also required Palmer to submit to drug testing.

      {¶ 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
                                                                                       -3-


Palmer had “tested positive for Methamphetamine and Amphetamines * * *.”

       {¶ 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 R.C. 2929.15(B)(1)(c)(ii) which

states as follows:

       (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:
                                                                                          -4-


       ***

       (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”



1
 R.C. 2929.15(B)(1)(c)(i) deals with fifth degree felonies. The provision is identical to
R.C. 2929.15(B)(1)(c)(ii) except that the prison term is capped at 90 days.
                                                                                         -5-


issue under R.C. 2929.15(B)(1)(c)(i) or R.C. 2929.15(B)(1)(c)(ii) have concluded that

felonious drug use, whether revealed by admission or testing, overcomes the applicable

prison term limitation. State v. Abner, 2018-Ohio-4506, __ N.E.3d __ (4th Dist.); State

v. Johnson, 5th Dist. Licking No. 18-CA-37, 2019-Ohio-376; State v. Cozzone, 2018-

Ohio-2249, 114 N.E.3d 601 (11th Dist.). In Abner, the defendant, while serving a CCS

sentence for a fifth degree felony, failed a drug test which indicated the use of heroin.

Abner additionally admitted that on other occasions she had used heroin. The trial court

revoked the CCS and imposed a 12-month prison term. The Fourth District affirmed

stating that, “although Abner was not charged or convicted for felony possession of

heroin, her admitted use of heroin constituted a [felony] crime rather than a mere technical

violation of community control.”      Abner at ¶ 15.      Thus, the trial court was “not

constrained by R.C. 2929.15(B)(1)(c)(i) to cap [Abner’s] prison term at 90 days.”     Id. at

¶ 16.

        {¶ 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
                                                                                        -6-


a CCS revocation proceeding. Cozzone admitted the overdose was a CCS violation,

prompting the trial court to revoke the CCS and impose a 54-month prison term. 2

Cozzone, on appeal, argued that the heroin overdose was a technical violation. The

Eleventh District disagreed, stating that “although [Cozzone] was not charged for [the

heroin use], overdosing on drugs is criminal in nature and cannot be considered a

‘technical’ violation of the terms and conditions of community control.” Cozzone at ¶ 39.

      {¶ 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 R.C. 2929.15(B)(1)(c)(i) or (ii),

to sentence the defendant upon revocation to a prison term in excess of 90 or 180 days,

as applicable.   Palmer admitted he failed several drug tests, indicating his use of

methamphetamine, which is a felony. State v. Abner, ¶ 15 (“the knowing * * * use of

heroin is per se criminal in Ohio and it constitutes a felony offense”). Thus, Palmer

committed a felony offense while serving a CCS sentence, which allowed the trial court

to revoke the CCS and impose a prison term in excess of 180 days.



                                      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.


2
 The trial court merged the fifth-degree felony with one of the fourth-degree felonies,
sentenced Cozzone to an 18-month prison term on each count, and ordered that the
sentences be served consecutively. Though not germane to the present discussion, the
appellate court determined that the consecutive service was clearly and convincingly not
supported by the record. Id. at ¶ 31.
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John M. Lintz
April F. Campbell
Hon. Douglas M. Rastatter
