[Cite as State v. Sanchez Martinez, 2019-Ohio-3350.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-180580
                                                       TRIAL NO. B-1704913
        Plaintiff-Appellee,                       :

  vs.                                             :        O P I N I O N.

VICTOR SANCHEZ MARTINEZ,                          :

     Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 21, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John D. Hill, Jr., for Defendant-Appellant.
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M OCK , Presiding Judge.

       {¶1}    Defendant-appellant Victor Sanchez Martinez (“Sanchez”) appeals

from the trial court's October 9, 2018 judgment entry finding that he violated his

community-control sanctions and imposing a sentence of 12 months in prison. For

the reasons set forth below, we affirm the trial court's judgment.

                       Multiple Community Control Violations
                             Result in Prison Sentence

       {¶2}    On October 12, 2017, Sanchez entered a plea of guilty to one count of

failing to provide notice of a change of his address, a felony of the fourth degree in

violation of R.C. 2950.05. The trial court accepted that plea, found him guilty, and

placed him on community control. One month later, the probation department

notified the trial court that he had violated the terms of his community control. He

had failed to report to the probation department on October 31. A letter was then

sent to him, instructing him to report on November 15. On November 15, Sanchez

again failed to report to the probation department. Additionally, Sanchez had failed

to make any payments toward his court costs. On December 27, the trial court

conducted a hearing and found that Sanchez had violated the terms of his

community control, but allowed him to continue on community control.

       {¶3}    On June 26, 2018, the probation department filed a notice with the

trial court that Sanchez had again violated the terms of his community control. The

report detailed that he had failed to appear in another case, resulting in a capias

being issued, had been convicted of four new misdemeanor offenses, had failed to

notify the probation department of a change of his residence, had again failed to

report to the probation department as instructed on two additional occasions, and

had failed to make any payments toward his court costs.




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       {¶4}    On October 9, the trial court conducted a hearing on the notice.

During the course of the hearing, the trial court learned that Sanchez’s new offenses

stemmed mainly from his failure to cooperate with law enforcement when he

encountered them. In January, Sanchez was at a friend’s house when the police

arrived and Sanchez gave the officer a fake name before fleeing from the home. This

resulted in a charge of obstructing official business. In February, a police officer

attempted to pull him over. Sanchez pulled into a parking lot, but drove away when

the officer approached his car. This resulted in a charge of failure to comply with an

order or signal of a police officer. In March, Sanchez attacked two employees in a

restaurant while he was intoxicated. This resulted in two charges of misdemeanor

assault.

       {¶5}    During the course of the hearing, the trial court became increasingly

frustrated with Sanchez’s answers, noting “You’re avoiding answering my direct

questions, which tells me there’s a hell of a lot more there than what you are telling

me.” The trial court then reviewed the violation report from the previous December.

After considering the information, the trial court concluded that “Mr. Sanchez, you’re

just, basically, ignoring the whole process.” The trial court then revoked Sanchez’s

community control and sentenced him to 12 months in prison.

       {¶6}    In his first assignment of error, Sanchez claims that the trial court

should have imposed a sentence of 180 days instead of 12 months. In his second

assignment of error, he claims that counsel was ineffective for failing to argue that

the 12-month sentence was contrary to law.        We will address the assignments

together.




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                    A Pattern of Conduct Amounting to a Failure
                     to Comply with the Conditions as a Whole

       {¶7}    In 2017, the General Assembly substantially modified Ohio’s

sentencing scheme for community-control violations where the underlying offense is

a felony of the fourth or fifth degree. R.C. 2929.15 now significantly narrows the

discretion trial courts may exercise when sentencing a defendant after finding a

violation of community control. If the defendant either violates the conditions of

community control, or violates the law, or leaves the state without permission, the

trial court may impose a prison sentence. See R.C. 2929.15(B)(1)(c). But the trial

court is limited to imposing only 180 days for a felony of the fourth degree “if the

prison term is imposed for any technical violation of the conditions of a community

control sanction * * * or for any violation of law * * * that consists of a new criminal

offense and that is not a felony.” R.C. 2929.15(B)(1)(c)(ii).

       {¶8}    Sanchez argues that his violations constituted technical violations and

misdemeanor offenses, and therefore he could only be sentenced to 180 days in

prison. This court has recently addressed the application of the 2017 change to the

community-control-violation sentencing statute and the definition of a “technical

violation.” See State v. Kernall, 1st Dist. Hamilton No. C-180613, 2019-Ohio-3070.

       We agree with the Fifth, Second, and Sixth Districts to the extent that a

       “technical violation” is a violation of any requirement which merely

       facilitates community-control supervision. See [State v. Nelson, 2d

       Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763,] ¶ 32. However, we

       also agree with the Eighth District's rationale that an offender's

       violations of community control can be considered under the totality of

       the circumstances. “[T]he General Assembly did not intend for

       individuals who [never report to probation or who fail to engage in any



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       of the conditions of community control] to be considered ‘technical’

       violators.” State v. Stanko, 8th Dist. Cuyahoga No. 106886, 2019-

       Ohio-152, ¶ 10. Therefore, the inquiry under R.C. 2929.15(B)(1)(c) is

       two-fold.    An offender's significant failure to comply with any

       substantive rehabilitative requirement which was specifically-tailored

       to the offender's underlying conduct is not a technical violation for

       purposes of R.C. 2929.15(B)(1)(c). In addition, if the offender engages

       in a pattern of conduct that demonstrates a failure to comply with the

       community-control sanction as a whole, this is also not a technical

       violation.

Id. at ¶ 18. Thus, a trial court may sentence a defendant to a term greater than that

set forth in either of the subsections of R.C. 2929.15(B)(1)(c) if the trial court

concludes that the defendant either (1) violated a condition that was a substantive

rehabilitative requirement specifically tailored to the offender’s conduct, or (2)

engaged in a pattern of conduct that demonstrated a failure to comply with the

community-control sanction as a whole.

       {¶9}    In this case, the individual acts that constituted the several violations

of Sanchez’s community control were either technical violations or new criminal

conduct that did not constitute felonies. And none of his conduct resulted in a

violation of a substantive rehabilitative requirement which was specifically-tailored

to his underlying conduct. As a result, we are left to consider whether his conduct

amounted to “a pattern of conduct that demonstrates a failure to comply with the

community-control sanction as a whole.”

       {¶10}   In State v. Kernall, this court addressed the same question, finding

that Kernall had engaged in such a pattern of conduct.




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       In addition to failing to report to substance-abuse treatment, Kernall

       also failed to report to the probation department on two separate

       occasions, failed to show proof of employment verification, and

       obtained five new misdemeanor capiases. While each of these

       violations alone would likely constitute either a technical violation or a

       violation of law that is not a felony, the cumulative effect of the

       violations amounts to a pattern of conduct that demonstrates a failure

       to comply with the community-control sanction as a whole.

Kernall, 1st Dist. Hamilton No. C-180613, 2019-Ohio-3070, at ¶ 20.

       {¶11}   In this case, Sanchez failed to notify the probation department of his

new address, he failed to report to the probation department on two separate

occasions, he picked up four new misdemeanor convictions, and he failed to appear

for court for one of those. And two of the four offenses involved the failure to

cooperate with law enforcement—in one instance he gave a police officer a fake name

and fled, and in a second he fled from another officer who attempted to pull him

over. And during the hearing on his community-control violations, he was evasive in

his answers to the trial court. The overall pattern that Sanchez established was that

he was unwilling to cooperate with the requirements placed upon him by others in

authority—not by police officers, not by probation officers, and not by courts. In

summing up the matter, the trial court told him that “you’re just, basically, ignoring

the whole process.” Even without the guidance of this court in Kernall, the trial

court, in essence, concluded that “the cumulative effect of the violations amount[ed]

to a pattern of conduct that demonstrate[d] a failure to comply with the community-

control sanction as a whole.” And the record amply supports this conclusion.




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                                      Conclusion

       {¶12}   Sanchez was not entitled to the 180-day limitation under R.C.

2929.15(B)(1)(c)(ii). And since he was not entitled to the limitation, counsel was not

ineffective for failing to make that argument below. See State v. Black, 1st Dist.

Hamilton No. C-100357, 2011-Ohio-1330, ¶ 23 (the failure to make a futile argument

is not ineffective assistance of counsel). We overrule his two assignments of error

and affirm the judgment of the trial court.

                                                                     Judgment affirmed.

BERGERON and CROUSE, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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