[Cite as State v. Showalter, 2018-Ohio-5299.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




STATE OF OHIO,                                   :

        Appellee,                                :     CASE NO. CA2018-04-023

                                                 :             OPINION
    - vs -                                                     12/28/2018
                                                 :

RICHARD G. SHOWALTER,                            :

        Appellant.                               :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                        Case No. 2013 CR 000123



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for appellant



        PIPER, J.

        {¶ 1} Appellant, Richard Showalter, appeals the sentence imposed by the Clermont

County Court of Common Pleas after the court revoked his community control.

        {¶ 2} Showalter pled guilty to breaking and entering and cocaine possession and was

sentenced to community control. Showalter violated the terms of his community control

twice, and the trial court continued Showalter's community control sanctions on both
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occasions. However, upon Showalter's third violation of community control, the trial court

revoked community control and imposed a prison sentence upon him.

      {¶ 3} During sentencing, the trial court determined that Showalter was on community

control for two fifth-degree felonies and had committed an additional felony offense during

that time.   The trial court therefore found that Showalter was not subject to R.C.

2929.15(B)(1)(c)(i), which limits a prison sentence to 90 days for a technical violation of

community control imposed for a fifth-degree felony. The court then sentenced Showalter to

nine months on each count and ordered the sentences to be served consecutively for an

aggregate sentence of 18 months. Showalter now appeals his sentence, raising the following

assignment of error:

      {¶ 4} THE TRIAL COURT ERRED IN FINDING THAT R.C. 2929.15(B)(1)(c)(i) ONLY

APPLIES TO DEFENDANTS WHO ARE ON COMMUNITY CONTROL FOR ONE FELONY

OF THE FIFTH DEGREE.

      {¶ 5} Showalter argues in his assignment of error that the trial court erred in

sentencing him to an 18-month sentence.

      {¶ 6} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to R.C. 2953.08(G)(2),

when hearing an appeal of a trial court's felony sentencing decision, "[t]he appellate court

may increase, reduce, or otherwise modify a sentence that is appealed under this section or

may vacate the sentence and remand the matter to the sentencing court for resentencing."

      {¶ 7} "The appellate court's standard for review is not whether the sentencing court

abused its discretion." Marcum at ¶ 9. Instead, R.C. 2953.08(G)(2) provides that an

appellate court may only increase, reduce, or modify a sentence or may vacate the sentence

and remand the matter for resentencing if the court finds by clear and convincing evidence

that the record does not support the sentencing court's findings, or that the sentence is
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otherwise contrary to law. R.C. 2953.08(G)(2)(a)-(b).

       {¶ 8} A sentence is not "clearly and convincingly contrary to law where the trial court

considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8.

       {¶ 9} Essentially, Showalter contends his sentence is contrary to law because the

trial court sentenced him outside the permissible statutory range since R.C.

2929.15(B)(1)(c)(i) limits a sentence to 90 days if the defendant violates the conditions of a

community control sanction imposed for a fifth-degree felony.          However, the statute

specifically provides,

              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.

       {¶ 10} The trial court made two findings regarding the inapplicability of R.C.

2929.15(B)(1)(c)(i) to Showalter. First, the trial court found the statutory provision did not

apply to Showalter because he was on community control for two separate offenses, as

opposed to a single fifth-degree felony. Second, the statute did not apply to Showalter

because his violations of community control included his continued use of cocaine, which

constituted a new felony criminal offense.

       {¶ 11} Showalter argues the trial court erred with respect to the first finding.

However, we need not determine whether the trial court erred in its interpretation of the

phrase, "a felony of the fifth degree," as the 90-day exception does not apply to Showalter

based on the plain language of the statute. State v. Walsson, 12th Dist. Clermont No.


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CA2018-02-004, 2018-Ohio-4485.

       {¶ 12} R.C. 2929.15(B)(1)(c)(i) provides that a prison term imposed after revocation of

community control may not exceed 90 days if the violation was "for any technical violation" or

any "violation of law * * * that consists of a new criminal offense and that is not a felony * * *."

(Emphasis added.) Thus, an offender on community control for a fifth-degree felony who

engages in conduct constituting a new felony offense does not enjoy the benefit of the 90-

day prison term limitation.

       {¶ 13} The record clearly indicates that part of Showalter's violations of his community

control included his continued use of cocaine. R.C. 2925.11(C)(4)(a) provides that cocaine

possession constitutes a felony. Thus, Showalter committed a felony while subject to his

imposed fifth-degree felony community control sanction. Therefore, the prison term limitation

of R.C. 2929.15(B)(1)(c)(i) is explicitly inapplicable to Showalter and the trial court did not err

in imposing two consecutive nine-month sentences.

       {¶ 14} Further, we note that the limitations in sentencing to a prison term as found in

R.C. 2929.15(B)(1)(c)(i) is applicable only if the violation of community control is for "any

technical violation" of the community control sanction. Here, there was nothing in the record

to support an argument the trial court considered Showalter's violation to be a "technical

violation."

       {¶ 15} Since Showalter's violation was not a technical violation and additionally

because he committed a new felony offense, as determined by the trial court, Showalter's

sentence is not clearly and convincingly contrary to law. Showalter's sole assignment of error

is, therefore, overruled.

       {¶ 16} Judgment affirmed.


       RINGLAND, P.J., and M. POWELL, J., concur.


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