[Cite as State v. Goetz, 2019-Ohio-5424.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


State of Ohio                                    Court of Appeals Nos. OT-19-013
                                                                       OT-19-014
        Appellee
                                                 Trial Court Nos. 17-CR-195
v.                                                                18-CR-004

Kyle Goetz                                       DECISION AND JUDGMENT

        Appellant                                Decided: December 31, 2019

                                            *****

        James J. VanEerten, Ottawa County Prosecuting Attorney, and
        Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.

        Mary M. Bollinger, for appellant.

                                            *****

        ZMUDA, J.

        {¶ 1} In this consolidated appeal, appellant, Kyle A. Goetz, appeals the judgment

of the Ottawa County Court of Common Pleas sentencing him to 28 months in prison

after admitting to violating the terms of his community control. We affirm the judgment

of the trial court.
                                          I. Background

       {¶ 2} On November 30, 2017, appellant was indicted by grand jury on one count

of aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(a), a fifth-degree

felony, and one count of possession of drug abuse instruments in violation of R.C.

2925.12(A)(C), a first-degree misdemeanor. The November 30, 2017 indictment was

assigned Ottawa County Court of Common Pleas case No. 17-CR-195. Appellant was

arraigned on December 4, 2017, and entered a not guilty plea to both counts. That same

day, appellant was released on his own recognizance, pursuant to R.C. 2937.29 with the

condition he report to the Ottawa County Probation Department for drug testing both

before his release and after as required by the department. The trial court’s order on bail

stated appellant “must test negative for all substances prior to release.” Additionally, the

trial court’s order stated any positive drug tests would result in the revocation of bail and

appellant’s immediate incarceration.

       {¶ 3} On January 3, 2018, the state filed a “Complaint of Bond Violation”

requesting the trial court revoke appellant’s bail. As the basis for revocation, the state

alleged appellant admitted to the use of cocaine and brought previously-dispensed urine

to his mandatory drug test in a device designed to provide a clean sample. The trial court

conducted a bond revocation hearing and pretrial on January 8, 2018. There, the trial

court established a trial date and entered an order addressing various procedural issues in

advance of trial. The record does not include a specific finding as to the requested bail




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revocation. However, the trial court entered an order permitting appellant’s release on

personal recognizance under the same conditions as the December 4, 2017 entry.

       {¶ 4} Appellant was subsequently indicted on January 10, 2018, on one count of

tampering with evidence in violation of R.C. 2921.12(A)(2)(B), a third-degree felony,

and one count of possession of criminal tools in violation of R.C. 2923.24(A)(C), a fifth-

degree felony. The conduct underlying this indictment was appellant’s attempted

tampering with the January 3, 2018 drug test. The January 10, 2018 indictment was

assigned Ottawa County Court of Common Pleas case No. 18-CR-004. Appellant was

arraigned on January 12, 2018, and entered a not guilty plea. He was held without bond

pending trial.

       {¶ 5} On February 14, 2018, appellant appeared before the trial court at a

consolidated pretrial hearing. At that hearing, the state moved to dismiss Count 2 in both

cases and amend Count 1 in case No. 18-CR-004 to attempted tampering with evidence

in violation of R.C. 2923.02(A), a fourth-degree felony. The trial court granted the

state’s motions. Appellant then entered a guilty plea to Count 1, aggravated possession

of drugs, in case No. 17-CR-195 and the amended Count 1, attempted tampering with

evidence, in case No. 18-CR-004. The trial court accepted appellant’s guilty pleas and

set the matter for sentencing.

       {¶ 6} At the March 29, 2018 sentencing, the trial court imposed three years of

community control. The trial court advised appellant it was reserving an 11-month prison

sentence for the conviction on Count 1 in case No. 17-CR-195 and a 17-month prison




3.
sentence for the conviction on Count 1 in case No. 18-CR-004.1 The trial court also

advised appellant that upon a violation of the conditions of community control, the

sentences would be imposed and would be served consecutively for an aggregate prison

term of 28 months.

       {¶ 7} The community control conditions required appellant to serve 30 days in the

Ottawa County Detention Facility, the timing of which was at the discretion of the

probation department to permit appellant to satisfy any ongoing program requirements,

and 180 days at the WORTH Community Based Correctional Facility. While at

WORTH, appellant was required to refrain from the use of any controlled substances and

to participate and complete all recommended counseling and programming.

       {¶ 8} Upon successful completion of any programming recommended by

WORTH counselors, appellant was also required to participate in and successfully

complete the DATA (Ottawa County drug court) program and, if recommended by

WORTH counselors, the court’s mental health program. Appellant was also ordered to



1
  In its sentencing entry the trial court informed appellant it was “suspending” the prison
sentences. Under the current sentencing rubric, a trial court imposing a term of
community control may only notify a defendant of the prison sentence to be imposed
upon a violation of the conditions of community control. Any prison term announced in
conjunction with the imposition of community control sanction is therefore reserved
rather than suspended. Appellant did not raise this issue as error on appeal. The error
was rendered moot when we stayed the appeal on April 26, 2019, and remanded this
matter to the trial court to impose a new prison sentence, not the previously “suspended”
sentence, in accordance with State v. Lawrence, 3d Dist. Seneca No 13-01-01, 2001 WL
504245 (May 14, 2001). The trial court’s new sentencing entry was journalized on
May 13, 2019. We reinstated the appeal on June 5, 2019.




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comply with the residency and program requirements at Light House Sober Living

following his completion of any recommended WORTH programs as well as any other

treatment recommendations from the county probation department.

       {¶ 9} Appellant successfully completed the WORTH programming and entered

the county DATA program. On November 29, 2018, the trial court found appellant was

in violation of the rules and requirements of the DATA program and terminated his

participation.2 The next day, the probation department filed a “Motion and Complaint of

Community Control Violation.” The complaint alleged two violations of the community

control sanctions. First, the state alleged appellant had tested positive for cocaine

metabolites and admitted to the use of cocaine on November 16, 2018. Second, the state

alleged appellant violated the terms of his community control sanction as a result of his

termination from the DATA program. At a hearing on December 28, 2018, appellant

admitted to both violations alleged in the probation department’s complaint. He was

ordered incarcerated pending disposition on his community control violations.

       {¶ 10} On February 14, 2019, the trial court again released appellant on his own

recognizance on the condition he immediately report to and enroll in programming at the

Stella Maris Treatment Facility in Cleveland, Ohio. Appellant failed to abide by these



2
 The record does not include the basis on which the trial court made this determination.
However, appellant’s subsequent admission to the positive cocaine test, use of cocaine,
and removal from the DATA program as violations of his community control renders this
omission moot as to our resolution of this appeal.




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terms resulting in the trial court granting the state’s March 4, 2019 motion for bond

revocation.

       {¶ 11} Appellant appeared before the court on April 1, 2019, for disposition of his

previously admitted community control violations. There, the trial court relied on the

bond revocation and appellant’s refusal to provide a urine sample as evidence to find

appellant was no longer amenable to community control.3 The trial court also determined

appellant’s violations were of substantive rehabilitative community control conditions

which were intended to address appellant’s drug use, a significant factor contributing to

his criminal conduct. As a result, the trial court revoked appellant’s community control

sanction and imposed the previously reserved 28-month aggregate prison sentence.

Appellant timely appealed each individual prison term from the trial court’s judgment

entry. The appeals were consolidated and appellant asserts the following assignment of

error for our review:

              The court erred in sentencing defendant to a term of incarceration,

       contrary to the provisions of Ohio Revised Code section

       2929.15(B)(1)(c)(i) & (ii).




3
 The only issue on appeal are the sentences imposed for appellant’s admitted community
control violations. Appellant’s suggestion the bond revocation was considered in
determining the sentence on his community control violations is not supported by the trial
court’s statements at sentencing.




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                                  II. Law and Analysis

       {¶ 12} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings,

6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or

vacate and remand a judgment only if we clearly and convincingly find either of the

following: “(a) the record does not support the sentencing court’s findings under division

(B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division

(I) of section 2929.20 of the Revised Code, whichever, if any, is relevant” or “(b) the

sentence is otherwise contrary to law.” State v. Yeager, 6th Dist. Sandusky No.

S-15-025, 2016-Ohio-4759, ¶ 7, citing R.C. 2953.08(G)(2). Appellant bears the burden

of identifying clear and convincing evidence the sentence imposed was contrary to law.

State v. Moore, 12th Dist. Butler No. CA2007-03-060, 2008-Ohio-1477, ¶ 12, citing State

v. Costlow, 8th Dist. Cuyahoga No. 89501, 2008-Ohio-1097, ¶ 15.

       {¶ 13} Appellant argues that his sentence is contrary to law in that it exceeds the

limits established in R.C. 2929.15(B) for technical violations of community control

sanctions. R.C. 2929.15(B) states:

              (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:

              ***




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               (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 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.

               (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.

Appellant argues that his admitted violations of the conditions of his community control

were technical in nature. For that reason, he argues, the trial court’s imposition of an 11-

month prison term for his fifth-degree felony conviction and a 17-month prison term for




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his fourth-degree felony conviction are contrary to the limits established by R.C.

2929.15(B)(1)(c)(i) and 2929.15(B)(1)(c)(2), respectively.

       {¶ 14} Appellant argues his unsuccessful termination from the DATA program

was “arguably a technical violation[.] It did not constitute a new crime, and can be

equated with failure to report to the probation officer.” He also argues that his admitted

drug use was a technical violation because he “was not charged with any new felonies.”

Essentially, appellant argues that because his violations did not result in new criminal

charges that his violations must be technical. We previously rejected this same argument.

       {¶ 15} In State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, we

held that the determination of whether a community control violation is technical in

nature depends on whether the condition violated was “a specifically tailored substantive

rehabilitative requirement or merely a general administrative requirement to facilitate

supervision during the period of the sanction,” the former constituting a nontechnical

violation. Id. at ¶ 30. We explicitly concluded that the term “technical” is distinct from

“non-criminal” and that a violation can be nontechnical even where subsequent criminal

charges are not filed. Id. We have since relied on Calhoun to find a defendant’s failure

to abide by drug testing and drug treatment conditions of community control are

nontechnical violations despite the lack of additional criminal charges. See State v.

Tackett, 6th Dist. Erie No. E-18-040, 2019-Ohio-2253 (defendant’s failure to report to

probation, abide by all laws and ordinances, appear for and pass drug tests, and seek and

maintain employment violated substantive rehabilitative requirements and were




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nontechnical in nature); State v. Hope, 6th Dist. Wood No. WD-18-080, 2019-Ohio-3023

(defendant’s failure appear for and pass drug tests violated substantive rehabilitative

requirements and were nontechnical violations). We reach the same conclusion here.

       {¶ 16} Appellant was convicted of aggravated possession of drugs and attempted

tampering with evidence related to his required drug testing while out on bail. Following

appellant’s guilty plea, the trial court imposed three years of community control. The

conditions of appellant’s community control required him to complete a drug treatment

program at the WORTH Community Based Correctional Facility, to reside at Light

House Sober Living and abide by its program requirements following completion of

WORTH programming, and to enroll in and successfully complete all requirements of the

DATA program. Given that appellant’s convictions were for offenses related to the

possession of drugs and his attempt to conceal his use of drugs, the trial court determined

appellant’s violations were “of substantive rehabilitative requirement[s] to address a

significant factor contributing to the Defendant’s criminal conduct.”

       {¶ 17} We find no basis on which to conclude the violated conditions were merely

general administrative requirements to facilitate supervision or that the trial court erred in

determining otherwise. Appellant was convicted of possession of drugs and tampering

with evidence in an effort to conceal his drug use. The violated conditions of his

community control were rehabilitative in that they addressed his ongoing drug use. They

were not general requirements to facilitate supervision over appellant. The violation of

substantive rehabilitative conditions of his community control constitutes a nontechnical




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violation regardless of whether the violations resulted in independent criminal charges.

Calhoun at ¶ 30. Since appellant’s violations were nontechnical, the trial court’s

sentence is not subject to the limits established in R.C. 2929.15(B)(1)(c)(i) or

2929.15(B)(1)(c)(ii) and, therefore, not contrary to law.

       {¶ 18} We note appellant’s citation to State v. Stanko, 8th Dist. Cuyahoga No.

106886, 2019-Ohio-152 as a similar case which should result in reversal of his sentence

is unpersuasive as it does not address whether that defendant’s violations were of a

substantive, rehabilitative condition of community control. Further, Stanko is not

controlling on this court and has no legal consequence in this district.

       {¶ 19} Accordingly, appellant has failed to satisfy his burden to identify any clear

and convincing evidence that his sentence was contrary to law. Therefore, appellant’s

sole assignment of error is denied.

                                      III. Conclusion

       {¶ 20} We find appellant’s assignment of error not well-taken. We affirm the

judgment of the Ottawa County Court of Common Pleas. Appellant is ordered to pay the

costs of this appeal pursuant to App.R. 24.


                                                                           Judgment affirmed.




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                                                               State v. Goetz
                                                               C.A. Nos. OT-19-013
                                                                         OT-19-014




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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