[Cite as State v. Salett, 2019-Ohio-2637.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 8-18-62

        v.

JOSHUA E. SALETT,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Logan County Common Pleas Court
                            Trial Court No. CR 17 11 0406

                                       Judgment Affirmed

                                Date of Decision: July 1, 2019




APPEARANCES:

        Samantha L. Berkhofer for Appellant

        Sarah J. Warren for Appellee
Case No. 8-18-62


SHAW, J.

       {¶1} Defendant-appellant, Joshua E. Salett (“Salett”), brings this appeal from

the October 1, 2018, judgment of the Logan County Common Pleas Court revoking

his community control after Salett refused to enter a community-based correctional

facility (“CBCF”) as ordered under the specific terms and conditions of his

community control. On appeal, Salett argues that his failure to complete the

program at the CBCF was a “technical” violation of his community control, which

should not have allowed the imposition of his entire previously reserved prison term

of twenty-four months.

                      Relevant Facts and Procedural History

       {¶2} On November 9, 2017, a traffic stop was conducted in Bellefontaine,

Ohio, of a vehicle in which Salett was backseat passenger. During the course of the

traffic stop, officers learned that Salett had an outstanding warrant for his arrest.

Salett was removed from the vehicle and arrested on the outstanding warrant. He

was then searched incident to that arrest, and at that time Salett was found to be in

possession of a rock-like substance consistent with crack-cocaine and nine Schedule

II Adderall 30 mg pills.

       {¶3} On April 10, 2018, Salett was indicted for Aggravated Possession of

Drugs in violation of R.C. 2925.11(A), a felony of the fifth degree, and Possession




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of Cocaine in violation of R.C. 2925.11(A), a felony of the fifth degree. Salett

originally pled not guilty to the charges.

       {¶4} On June 21, 2018, Salett entered into a written, negotiated plea

agreement wherein he agreed to plead guilty to the charges as indicted, and in

exchange the State agreed to stand silent at sentencing. It was also agreed that the

discretionary post-release control would not be imposed by the trial court. A

change-of-plea hearing was then held, wherein Salett knowingly, voluntarily, and

intelligently entered his guilty pleas and he was found guilty of the charges as

indicted.

       {¶5} On July 31, 2018, the matter proceeded to sentencing. At the sentencing

hearing, the State remained silent as to any recommendation per the plea agreement;

however, the pre-sentence investigation writer indicated that Salett was not

amenable to community control because he committed the offenses in this case

while on post-release control for a prior felony, and because he had a “high” Ohio

Risk Assessment System (“ORAS”) score.

       {¶6} Salett made a statement on his own behalf, indicating that he had

already been in jail for this crime awaiting trial and that he had also served time for

violating his post-release control in his prior case out of Cleveland. He argued that

a lengthy prison term would not assist in his rehabilitation. Therefore, he requested

a prison term of six months or less. In addition, though Salett acknowledged that


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Case No. 8-18-62


he had the drugs on him at the time of the traffic stop, he denied that they were his,

stating that the other people in the vehicle with him must have put them in his pocket

in the vehicle while he was sleeping.

       {¶7} The trial court analyzed the applicable sentencing factors and indicated

that it was primarily concerned with Salett’s rehabilitation, being that Salett was

relatively young. The trial court thus disagreed with the pre-sentence investigation,

stating that providing further rehabilitative opportunity for Salett would be the

optimal outcome rather than prison. The trial court then placed Salett on community

control for five years on each count, to run concurrent with each other. As part of

Salett’s community control, the trial court ordered Salett to the West Central CBCF

to complete programming there.

       {¶8} When the trial court stated that Salett would be sent to the CBCF, Salett

indicated that he felt like he did not need to go to West Central. He asked the trial

court if he would be punished if he withdrew from West Central, and the trial court

stated, “when you’re thinking about signing yourself out of West Central, I want

you to understand that is my goal: To get you back in Cleveland with a job, starting

a new life. If you sign yourself out, you’re telling me that you can’t do that. Do

you understand – so you asked me, are you going to be punished? I’m telling you

that’s the message you’re sending me.” (July 31, 2018, Tr. at 32).




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        {¶9} The trial court indicated that failure to complete a residential program

as ordered at West Central would be a violation of Salett’s community control. (Id.

at 30). The trial court further stated that the other remaining option other than the

CBCF was prison, but the trial court wanted to focus on rehabilitation rather than

punishment. Finally, Salett was notified that if he violated his community control,

he would be subject to a twelve-month prison term on each charge, to be served

consecutively, for an aggregate twenty-four month prison term.

        {¶10} On August 8, 2018, Salett filed a “Motion for Furlough,” requesting

to be furloughed from his incarceration while space was being made for him to

attend West Central. Salett argued that his entrance assessment was scheduled for

the week of August 13 to August 17, that he now believed the court’s sentencing

decision was appropriate, and that West Central could be beneficial for him. He

argued that if he was released on furlough, he would report for an assessment and

to West Central as ordered. On August 14, 2018, Salett’s motion for furlough was

denied.

        {¶11} It is undisputed that Salett then refused to enter the CBCF.

        {¶12} On October 1, 2018, a visiting judge held a hearing that had originally

been styled as “resentencing.”1 At the inception of the hearing, however, the trial



1
  On August 28, 2018, the record contains an assignment notice from the assignment commissioner stating
that this matter was assigned for “resentencing” on September 18, 2018. The matter was continued to October
1, 2018.

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Case No. 8-18-62


court noted that the hearing was actually to determine if there was probable cause

to find that Salett had violated his community control based on his refusal to attend

West Central. Nevertheless, the trial court stated that a motion to revoke Salett’s

community control had not yet been filed by the State, thus the matter should be

continued so that Salett could be apprised of the specific allegation in writing. The

State indicated it could get a motion filed quickly, and Salett actually requested that

the matter be resolved that day, as he had family attending the hearing from

Cleveland present in the courtroom. Due to Salett’s request, the trial court recessed

so that the State could file the appropriate motion, and the matter proceeded later

the same day to hear the State’s newly filed motion to revoke Salett’s community

control.

       {¶13} Salett ultimately admitted to failing to attend West Central, contending

that he did not think the courses in the program were necessary for him because he

had been through similar courses while previously incarcerated. He requested that

the trial court continue his community control. Salett’s attorney also attempted to

argue that failure to attend West Central was a mere “technical” violation of

community control, and that he should not receive a full prison term.

       {¶14} The trial court found that the order for Salett to complete a term in

West Central was pivotal in the original sentence as an aspect of rehabilitation. The

trial court then determined that failure to attend the CBCF was more than a technical


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violation, and found that it was appropriate to revoke Salett’s community control at

that time. Salett was sentenced to serve twelve months in prison on each count,

consecutive to each other, for an aggregate twenty-four month prison term. A

judgment entry memorializing his sentence was filed that same day. It is from this

judgment that Salett appeals, asserting the following assignment of error for our

review.

                                Assignment of Error
         Did the Trial Court abuse its discretion in sentencing Salett for a
         community control violation without proof of “substantial
         nature” of the violation?

         {¶15} In Salett’s assignment of error, he argues that the trial court erred by

sentencing him to prison for a community control violation that he contends was

only a “technical” violation.2 Salett argues that under R.C. 2929.15(B)(1)(c)(i), if a

community control violation is merely “technical,” any prison term imposed by the

trial court for the “technical” violation could not exceed “ninety days.”

                                          Standard of Review

         {¶16} The decision of a trial court to revoke community control will not be

disturbed absent an abuse of discretion. State v. Berry, 3d Dist. Defiance No. 4-12-

04, 2012-Ohio-4660, ¶ 33, citing State v. Ryan, 3d Dist. Union No. 14-06-55, 2007-



2
  Salett’s argument in his brief focuses on the issue of whether his violation was “technical.” The statement
of his assignment of error indicates that he was challenging whether there was proof of a “substantial nature,”
but Salett admitted to the violation. Thus the only real question before us is whether the violation he admitted
to was technical in nature.

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Ohio-4743, ¶ 7.      An abuse of discretion indicates that the trial court acted

unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). When applying the abuse of discretion standard, a reviewing

court may not simply substitute its own judgment for that of the trial court.

                                      Analysis

       {¶17} On appeal, Salett argues that his community control violation for

failing to attend and complete the program at the CBCF was merely a “technical”

violation of community control, and thus his entire prison term could not be invoked

based upon R.C. 2929(B)(1)(c)(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 * * * the prison term shall not exceed ninety days.”) (Emphasis

added).

       {¶18} Although “technical” violations of community control are not defined

by the legislature, Ohio Appellate Courts have determined that a “technical”

violation is “an administrative requirement facilitating community control

supervision.” State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-

2672, ¶ 18; State v. Nelson, 2d Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763.

A non-technical violation is a violation of a “substantive rehabilitative requirement

which addressed a significant factor contributing to appellant’s criminal conduct.”

State v. Davis at ¶ 18.


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         {¶19} In this case, Salett was ordered to attend and complete West Central

CBCF as a specific condition of his community control. This was meant to address

any drug issues, and to help rehabilitate Salett. The trial court specifically stated as

much to Salett at the sentencing hearing.

         {¶20} Facially, failing to complete the CBCF program would be more than

a technical violation as it was an integral part of the trial court’s sentence, made to

address Salett’s issues and help rehabilitate him. Thus we would readily categorize

it as more than a technical violation. In fact, many other Ohio Appellate Courts

have determined that failure to complete a CBCF program as ordered under

community control was more than a technical violation of community control. See,

e.g. State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672; State

v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219; State v. Blake, 4th

Dist. Hocking No. 18CA6, 2018-Ohio-5413.                          Consistent with the other Ohio

Appellate Courts, we find that the trial court did not abuse its discretion in this

matter by finding that Salett’s failure to complete a program at the CBCF as ordered

was more than a technical violation.3 Therefore, Salett’s assignment of error is

overruled.




3
  Any claim by Salett in his brief that his case is different from the prevailing caselaw is not well-taken. He
bases his argument on the fact that in some of the other cases criminal defendants entered the program and
then did not complete it, whereas here, Salett was never granted admission. The distinction makes no
difference. Salett still failed to comply with a specific provision of his community control.

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                                    Conclusion

       {¶21} For the foregoing reasons Salett’s assignment of error is overruled and

the judgment of the Logan County Common Pleas Court is affirmed.

                                                               Judgment Affirmed

ZIMMERMAN, P.J. and PRESTON, J., concur.

/jlr




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