[Cite as State v. Neal, 2019-Ohio-2277.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




STATE OF OHIO,                                   :

       Appellee,                                 :     CASE NO. CA2018-09-068

                                                 :             OPINION
    - vs -                                                      6/10/2019
                                                 :

JOSHUA NEAL,                                     :

       Appellant.                                :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                        Case No. 2017 CR 000192



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

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



        RINGLAND, P.J.

        {¶ 1} Appellant, Joshua Neal, appeals the prison sentence imposed by the Clermont

County Court of Common Pleas following the revocation of his community control. For the

following reasons, we affirm the sentence.

        {¶ 2} In March 2017, appellant was indicted on one count of aggravated possession

of drugs, a fifth-degree felony, after law enforcement discovered fentanyl in appellant's
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possession while investigating an automobile collision between appellant and another

motorist. Subsequently, appellant pled guilty to the charge. The trial court sentenced

appellant to four years of community control, including an order to participate in a drug

treatment program, and advised appellant that he could potentially serve twelve months in

prison should he violate the terms and conditions of community control.

       {¶ 3} Overall, appellant violated community control three times. For the first and

second violations, appellant admitted to the violations and the trial court continued him on

community control. To elicit compliance, the court switched the drug treatment facilities after

each violation. In total, the court ordered appellant to attend a drug treatment program at

three different facilities as part of the community control sanctions.

       {¶ 4} In May 2018, appellant's probation officer filed a third affidavit of violation

alleging that appellant violated the community control sanction by prematurely terminating his

treatment by leaving the residential treatment facility. At the adjudication hearing appellant

admitted to the violation.

       {¶ 5} In August 2018, at the sentencing hearing, the trial court revoked community

control and imposed a 12-month prison term. At this hearing, the trial court found that

appellant was not subject to the 90-day sentence limitation provided by R.C.

2929.15(B)(1)(c)(i), because appellant's violation was not "technical" for two reasons. First,

appellant violated a substantive condition of community control by voluntarily leaving the

treatment program. Second, appellant absconded from supervision by voluntarily leaving the

facility and other failures to report to his probation officer, thereby making continued

community control impractical. At the sentencing hearing, appellant objected to the trial

court's decision and the court overruled the objection.

       {¶ 6} Appellant now appeals, raising one assignment of error:

       {¶ 7} THE TRIAL COURT ERRED IN FINDING THAT R.C. 2929.15(B)(1)(c)(i) DID
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NOT APPLY TO APPELLANT.

       {¶ 8} Appellant argues the trial court erred when it determined the violation was not a

"technical violation." Appellant contends that since there is no statutory definition of the term

"technical violation," the trial court should have interpreted "technical violation" to mean any

violation that is not criminal in nature.

       {¶ 9} We review a prison sentence imposed for violating felony community control

sanctions, as we review all felony sentences, pursuant to R.C. 2953.08(G)(2). State v. Ford,

12th Dist. Clermont No. CA2018-07-052, 2019-Ohio-1196, ¶ 9; accord State v. Eckert, 12th

Dist. Clermont No. CA2018-06-038, 2019-Ohio-1289, ¶ 7. Under R.C. 2953.08(G)(2), an

appellate court may modify or vacate a sentence only if it clearly and convincingly finds the

record does not support the trial court's findings under relevant statutes or the sentence is

otherwise contrary to law. State v. Bishop, 12th Dist. Clermont Nos. CA2018-05-031 and

CA2018-05-036, 2019-Ohio-592, ¶ 8.

       {¶ 10} Pursuant to R.C. 2929.15(B), a trial court may impose a prison sentence as

punishment for violating the terms and conditions of community control if the prison term is

within the statutorily permitted range for the underlying offense and the offender was

previously notified of the potential prison term at his sentencing hearing for the original

criminal offense or a prior community control violation. Ford at ¶ 10.

       {¶ 11} However, R.C. 2929.15(B)(1)(c) imposes specific limitations on the potential

prison sentence when the underlying offense is a fifth-degree or fourth-degree felony.

Specifically, this division limits the possible prison sentence to 90 days—where the

underlying offense is a fifth-degree felony—if the community control violation constitutes

either a new, non-felony violation of law or a "technical violation". State v. Walsson, 12th

Dist. Clermont No. CA2018-02-004, 2018-Ohio-4485, ¶ 12.

       {¶ 12} While "technical violations" are not defined by statute, this court has previously
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narrowed the scope of what constitutes a technical violation. A violation of a special

condition of community control will not be considered a technical violation, for R.C.

2929.15(B)(1)(c) purposes, where the special condition created a "substantive rehabilitative

requirement" of the imposed terms or conditions. State v. Davis, 12th Dist. Warren No.

CA2017-11-156, 2018-Ohio-2672, ¶ 18. This is because special conditions are not merely

administrative requirements that facilitate supervision, but specific orders tailored to address

and treat the offender's underlying health or behavioral issues and rehabilitate criminal

conduct. Id. at ¶ 17-18.

       {¶ 13} In Davis, the offender was required to complete a drug treatment program at a

community-based correctional facility as a special condition of his community control. Id. at ¶

3. The offender violated his community control by voluntarily leaving the drug treatment

program. Id. at ¶ 4. The Davis court held that the offender's voluntarily departure from the

program, was not merely "technical" in nature, because it violated a substantive requirement

of community control addressing the offender's substance abuse problem. Id. at ¶ 17-18.

       {¶ 14} In the case sub judice, the facts are similar. The trial court ordered appellant to

attend a drug treatment program as a specifically tailored substantive rehabilitative

requirement to treat his drug addiction. Appellant failed to complete the program, as in

Davis, by voluntarily leaving the residential treatment facility. This act showed an intentional

disregard for a substantive rehabilitative requirement of his community control. Therefore,

appellant's violation was not a "technical" violation because he voluntarily left his assigned

drug treatment program.      Additionally, we note, the trial court gave appellant several

opportunities—from three different treatment facilities—to successfully complete this

condition and the second and third violations arose from appellant's failure to comply with the

assigned programs. Consequently, the trial court did not err when it decided the R.C.

2929.15(B)(1)(c)(i) limitation did not apply.
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       {¶ 15} Furthermore, the sentence was not otherwise contrary to law. The 12-month

prison term is within the range permitted for a fifth-degree felony under R.C. 2929.14 and the

trial court properly advised appellant of the potential prison sentence at his original

sentencing hearing.

       {¶ 16} Accordingly, appellant's sole assignment of error is overruled.

       {¶ 17} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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