[Cite as State v. Swetnam, 2019-Ohio-5186.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                     :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
 -vs-                                          :
                                               :   Case No. 2019 CA 00010
                                               :
 LISA SWETNAM                                  :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 17-CR-00340



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            December 10, 2019




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 WILLIAM C. HAYES                                  NICHOLAS FAGNANO
 LICKING COUNTY PROSECUTOR                         73 North Sixth St.
                                                   Newark, OH 43055
 DARREN M. BURGESS
 20 S. Second St., 4th Floor
 Newark, OH 43055
Licking County, Case No. 2019 CA 00010                                                    2



Delaney, J.

         {¶1} Defendant-Appellant Lisa Swetnam appeals the January 3, 2019 judgment

entry of the Licking County Court of Common Pleas.

                          FACTS AND PROCEDURAL HISTORY

         {¶2} The underlying facts are not necessary for the disposition of this appeal. On

April 20, 2017, Defendant-Appellant Lisa Swetnam was indicted by the Licking County

Grand Jury on four counts: (1) Possession of Cocaine, a fifth-degree felony in violation of

R.C. 2925.11(A)(C)(4)(a); (2) Aggravated Possession of Drugs (Fentanyl), a fifth-degree

felony in violation of 2925.11(A)(C)(1)(a); (3) Aggravated Possession of Drugs

(Carfentanyl), a fifth-degree felony in violation of 2925.11(A)(C)(1)(a); and (4) Aggravated

Possession of Drugs (Methamphetamine), a fifth-degree felony in violation of

2925.11(A)(C)(1)(a). The indictment also contained a forfeiture specification (U.S.

Currency) pursuant to R.C. 2941.1417(A) and 2981.02(A)(2).

         {¶3} Swetnam entered a plea of not guilty to all charges and the matter was set

for trial.

         {¶4} On August 24, 2017, Swetnam appeared before the trial court and withdrew

her plea of not guilty to the charges. The trial court accepted Swetnam’s plea, found her

guilty on all counts, and proceeded to sentencing. The parties jointly recommended an

agreed sentence of community control sanctions. The trial court considered the record,

statements of the parties, and the pre-sentence investigation report in conjunction with

the purposes and principles of sentencing set for in R.C. 2929.11, balanced by the

seriousness and recidivism factors set forth in R.C. 2929.12. The trial court found a prison

sentence was not mandatory and not consistent with the purposes and principles of
Licking County, Case No. 2019 CA 00010                                                 3


sentencing. The trial court placed Swetnam on community control for a period of two

years with the following sanctions:

       The Defendant is placed on the following community control sanctions for a

       period of two (2) years. If the Defendant violates any of the conditions of

       community control sanctions, the Court may do any of the following: (1)

       impose a longer term under community control sanctions; (2) impose more

       restrictive community control sanctions; or (3) impose the reserved prison

       term for the offense for which the Defendant was convicted.

       ***

       B. Nonresidential Sanctions (R.C. 2929.17)

       The Defendant shall be placed under the supervision of the Licking County

       Adult Court Services Department and shall comply with all general and

       specific conditions of supervision as set forth below. Further, the Defendant

       shall be placed on a term of:

       Chemical Dependency Supervision

       The Defendant shall abide by the law and may not leave the State without

       the permission of the Court or the Defendant’s probation officer.

       The Defendant shall enter into and successfully complete any drug and/or

       alcohol treatment program as directed by the Adult Court Services

       Department.

       The Defendant shall enter into and successfully complete an approved

       mental health treatment program as directed by the Adult Court Services

       Department.
Licking County, Case No. 2019 CA 00010                                                   4


       The Defendant shall complete 40 hours of community service.

       ***

       The Defendant shall abstain from the use of alcohol, and the use of any

       controlled substance, without a prescription by a licensed medical

       practitioner. The Defendant shall provide a copy of any prescription issued

       to him or her to the Adult Court Services Department.

       ***

       The Defendant shall immediately submit to an alcohol or drug test if

       requested to do so by any law enforcement officer.

       The Defendant shall conscientiously seek and/or maintain suitable

       employment or pursue conscientiously a course of study or vocational

       training to obtain suitable employment.

       ***

       The Defendant shall obtain his/her GED.

       The Defendant shall abide by all other conditions set by the Licking County

       Common Pleas Court Adult Court Services Department and approved by

       the Court.

       {¶5} The trial court further imposed a reserved prison term if Swetnam violated

the conditions of the community control sanctions or committed a violation of the law. The

trial court specifically advised Swetnam that it would impose the following prison terms in

the event her community control sanctions were revoked: (1) 12 months in prison on

Count One (Counts One, Two, and Three merged for sentencing purposes) and (2) 12

months in prison on Count Four. The prison terms were to be served consecutively.
Licking County, Case No. 2019 CA 00010                                                 5


       {¶6} The trial court’s sentencing entry was filed on August 24, 2017.

       {¶7} On November 27, 2018, the State filed a Motion to Revoke Community

Control. In the motion, the State alleged Swetnam violated the conditions of her

community control supervision. The motion alleged that on October 26, 2018, Swetnam

admitted to using fentanyl and other illegal substances on October 22, 2018. On

November 8, 2018, Swetnam tested positive for fentanyl. On November 21, 2018,

Swetnam tested positive for fentanyl and admitted to using on November 18, 2018. On

November 21, 2018, Swetnam admitted to having contact with her ex-boyfriend after she

was ordered to have no contact with him.

       {¶8} The State filed an addendum to the Motion to Revoke Community Control

on December 14, 2018. In the motion, the State alleged Swetnam tested positive for

Gabapentin and had no current prescription. Swetnam admitted to using the drug on

December 12, 2018.

       {¶9} The matter came on for hearing before the trial court on January 3, 2019.

Swetnam, represented by counsel, stipulated to probable cause and admitted the

violations. Counsel for Swetnam stated she had been accepted into the STAR program

and a bed was available for her on January 15, 2019. (T. 4). Swetnam stated she had

successfully completed drug rehab but relapsed because she associated with the wrong

people after rehab. (T. 5). She acknowledged this was her second revocation, but she felt

the STAR program would be beneficial. (T. 4, 11). The trial court ordered that Swetnam’s

community control be revoked and imposed the reserved prison term of 24 months. (T.

13).

       {¶10} It is from the January 3, 2019 judgment entry Swetnam now appeals.
Licking County, Case No. 2019 CA 00010                                                    6


                                ASSIGNMENT OF ERROR

       {¶11} Swetnam raises one Assignment of Error:

       {¶12} “THE SENTENCING COURT COMMITTED ERROR WHEN IT IMPOSED

THE FULL PRISON TERM ON EACH OF HER TWO COUNTS FOR NON-CRIMINAL

VIOLATIONS.”

                                        ANALYSIS

       {¶13} In her sole Assignment of Error, Swetnam contends the trial court erred

when it sentenced her to 12 months in prison on each count because under R.C.

2929.14(B)(1)(c)(i), the trial court could only sentence Swetnam to a maximum prison

term of 90 days. Specifically, Swetnam argues her violations of her community control

sanctions were only “technical violations” and thus, the trial court could only sentence her

to 90 days in prison under R.C. 2929.14(B)(1)(c)(i).

       {¶14} R.C. 2929.14(B)(1)(c)(i) reads:

       (B)(1) If the conditions of a community control sanction are violated or if the

       offender violates a law or leaves the state without the permission of the

       court or the offender's probation officer, 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
Licking County, Case No. 2019 CA 00010                                                    7


       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} The trial court did not make a specific finding at the revocation hearing or in

the judgment entry imposing the reserved prison term that Swetnam’s violations of her

community control sanctions were “technical” or “non-technical.”

       {¶16} This Court has previously considered the meaning of “technical violation”

pursuant to R.C. 2929.15(B)(1)(c)(i):

       The Eleventh Appellate District addressed R.C. 2929.15(B) in a case where

       the defendant overdosed on heroin in violation of the terms of her

       community control. State v. Cozzone, 11th Dist. Geauga No. 2017-G-0141,

       2018-Ohio-2249 [114 N.E.3d 601]. The defendant argued her community

       control violation was technical in nature, and therefore, the maximum prison

       term which could be imposed for the violation was 180 days. The appellate

       court observed the term “technical violation” was not defined in R.C.

       2929.15; however, other appellate districts had addressed “technical

       violations” as they pertained to revocation of community control sanctions

       and parole violations in cases predating the statutory amendment. Id. at ¶

       38, citing State v. Cearfoss, 5th Dist. Stark No. 2004CA00085, 2004-Ohio-

       7310 [2004 WL 3563911] (defendant's failure to follow his probation officer's

       order to open the front door was a “technical violation”); State v. Jenkins,

       2d Dist. Champaign No. 2005-CA-22, 2006-Ohio-2639 [2006 WL 1461119]

       (defendant's failure to notify his parole officer before moving out of his
Licking County, Case No. 2019 CA 00010                                                     8


       residence where a convicted felon resided was “at best a ‘technical’

       violation”); and Amburgey v. Ohio Adult Parole Auth., 12th Dist. Madison

       No. CA2001-07-016, 2001 WL 1256365, * * * (“technical” violations, in the

       context of parole, are 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,

       and leaving the state). The Cozzone court concluded overdosing on drugs

       was criminal in nature and therefore could not be considered a “technical

       violation” of community control. Cozzone, supra, at ¶ 39.

State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 9.

       {¶17} The Supreme Court of Ohio has 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 v. Wolfe, 5th Dist. Licking

No. 18-CA-60, 2019-Ohio-2294, 2019 WL 2419651, ¶ 13 quoting 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 v. Rogers, 541 F.2d 633,635, fn. 2 (6th Dist. 1976).

       {¶18} Swetnam was placed on community control in lieu of prison based in part

on her conviction for aggravated possession of fentanyl. Swetnam admitted to using

fentanyl on October 22, 2018 and November 18, 2018, while on community control

sanctions and after she had completed drug rehabilitation. While Swetnam was not

charged or convicted for this conduct, purchasing, possessing, and using a Schedule II

controlled substance such a fentanyl is a felony criminal offense. State v. Wolfe, 5th Dist.
Licking County, Case No. 2019 CA 00010                                               9


Licking No. 18-CA-60, 2019-Ohio-2294, 2019 WL 2419651, ¶ 14 citing R.C.

2925.11(A)(C)(1)(a). Therefore, it could not be considered a “technical violation” of

community control. Id. citing State v. Cozzone, 11th Dist. Geauga No. 2017-G-0141,

2018-Ohio-2249, 114 N.E.3d 601, ¶ 9.

       {¶19} Swetnam’s sole assignment of error is overruled.

                                   CONCLUSION

       {¶20} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Baldwin, J., concur.
