         [Cite as State v. Kernall, 2019-Ohio-3070.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-180613
                                                       TRIAL NO. B-1802104
        Plaintiff-Appellee,                        :
                                                          O P I N I O N.
  vs.                                              :

KEONTAE KERNALL,                                   :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 31, 2019


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher, William Gallagher and Elizabeth Conkin, for Defendant-
Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C ROUSE , Judge.

       {¶1}   Defendant-appellant Keontae Kernall appeals from the trial court’s

October 16, 2018 judgment entry finding that Kernall violated his community-

control sanctions and imposing a sentence of 12 months’ imprisonment. For the

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

                              I. Facts and Procedure

       {¶2}   On June 13, 2018, Kernall pled guilty to one count of trafficking in

cocaine, a felony of the fifth degree. On June 20, 2018, the trial court sentenced Kernall

to three years of community control. During the sentencing hearing, the court advised

Kernall that it would impose a 12-month prison term for a violation of community

control.

       {¶3}   On September 27, 2018, the Hamilton County Adult Probation

Department filed a complaint against Kernall, alleging that Kernall had violated the

conditions of his community control by (1) failing to conduct himself properly by

obtaining five new misdemeanor capiases, (2) failing to report to the probation

department on two separate occasions, (3) failing to show proof of employment

verification, and (4) failing to report to the Court Clinic for a substance-abuse

assessment. Kernall pled no contest to the violations. Finding that the culmination of

violations constituted a nontechnical violation of Kernall’s community control, the trial

court entered a “Judgment Entry Revoking Community Control” and imposed a

sentence of 12 months in prison.

       {¶4}   Kernall assigns the following errors for our review:

       1. The Twelve-Month Sentence of Imprisonment is Contrary to Law

           Because the Trial Court Re-Imposed the Original Sentence for the

           Underlying Offense Prosecuted in Case No. B-1802104.



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         2. The Twelve-Month Sentence of Imprisonment is Contrary to Law

            Because the Trial Court Considered Conduct Not Included in the

            Complaint for Failure to Comply with the Terms of his Community

            Control in Sentencing Kernall.

         3. The Twelve-Month Sentence of Imprisonment is Contrary to Law

            Because the Trial Court Abused its Discretion in Finding Kernall’s

            Violations of Community Control were “Non-Technical.”

For the sake of clarity, we elect to address assignments of error two and three out of

order.

                               III. Law and Analysis

         {¶5}   Under R.C. 2953.08(G)(2), this court may vacate or modify a sentence

only if we clearly and convincingly find that the record does not support the mandatory

findings, or that the sentence is otherwise contrary to law. State v. White, 2013-Ohio-

4225, 997 N.E.2d 629, ¶ 9-11 (1st Dist.).

                          1. Kernall’s First Assignment of Error

         {¶6}   In his first assignment of error, Kernall argues that his 12-month

sentence is contrary to law because the trial court simply reimposed the original

sentence for the underlying offense, as opposed to imposing an appropriate sanction

for the violation of community control.

         {¶7}   “With the passage of Am.Sub.S.B. No. 2 in 1995, community control

replaced probation as a possible sentence under Ohio’s felony sentencing law.” State v.

Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 16. “Community control

differs from former sentencing procedures in that the trial court no longer suspends

execution of the prison term * * * as a part of granting probation.” State v. Curtis, 143

Ohio App.3d 314, 315, 757 N.E.2d 1237 (1st Dist.2001). Instead, the sentencing court



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orders the offender directly to submit to community-control sanctions. Id. When a

defendant violates a condition of community control, the court imposes a sanction for

that violation. The court does not revoke community control and impose the “original

sentence” for the underlying offense.

       {¶8}    We agree with Kernall that the trial court’s statements, as well as the title

and language of the judgment entry, suggest that the trial court intended to revoke

community control and impose the “original sentence” for trafficking in cocaine.

However, Kernall has failed to show how the trial court’s misclassifications amount to a

sentence that is contrary to law.

       {¶9}    If the conditions of a community-control sanction are violated, the

sentencing court may impose (a) a longer time under the same sanction, (b) a more

restrictive sanction, including but not limited to, a new term in a community-based

correctional facility, halfway house, or jail, or (c) a prison term. R.C. 2929.15(B)(1).

Any prison term imposed must be within the range of prison terms available for the

underlying offense and must not exceed the prison term specified in the notice

provided to the offender at the sentencing hearing. R.C. 2929.15(B)(3). In the notice

provided to Kernall at the sentencing hearing, the trial court specified that it would

impose a prison term of 12 months for a violation of community control.

Accordingly, when Kernall violated his community control, the trial court had the

authority to impose, at the maximum, a 12-month prison term. Therefore, Kernall’s

sentence is not contrary to law and his first assignment of error is overruled.

                          2. Kernall’s Third Assignment of Error

       {¶10} In his third assignment of error, Kernall argues that his 12-month

sentence is contrary to law because the trial court erroneously determined that his

violations of community control were nontechnical.            Kernall contends that his



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violations were merely “technical violations,” and therefore, he could only be

sentenced to a maximum prison term of 90 days under R.C. 2929.15(B).

       {¶11} R.C. 2929.15(B) governs the penalties available to the sentencing court

when an offender violates community control. The Ohio legislature recently amended

R.C. 2929.15(B) to place limitations on prison terms imposed for violations of a

community-control sanction for certain fourth- or fifth-degree felonies. 2017 H.B. 49

(“H.B. 49”). R.C. 2929.15(B) provides in pertinent part:

       (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 [the felony sentencing

       statute and not to exceed the term specified at the sentencing hearing],

       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



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       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.

       {¶12} The limitations set forth in R.C. 2929.15(B)(1)(c) apply only to “technical

violations.” The term “technical” is not defined in the statute and the term is neither

clear nor unambiguous. Therefore, because this is a matter of first impression in this

district, we must first consider the legislative history and the circumstances under which

H.B. 49 was enacted.

       {¶13} As discussed by the Eighth District Court of Appeals, H.B. 49 was a

budget bill. See State v. Catron-Wagner, 8th Dist. Cuyahoga No. 106887, 2019-Ohio-

153, ¶ 36.    Gary Mohr, Director of the Ohio Department of Rehabilitation and

Correction, testified before the House Finance Committee that H.B. 49 was “a prudent

policy to invest in people” and to reduce Ohio’s prison population. In particular, H.B. 49

was aimed to divert low-level, drug-related offenders from the state prison system.

According to Mohr, H.B. 49 “strikes the appropriate balance between treating those

drug addicted Ohioans in the community, while maintaining the Department’s

obligation to protect the public by safely incarcerating those who commit more

serious offenses.” By reforming and limiting criminal sentencing, the purpose of the

relevant provisions in H.B. 49 was to “improve[] outcomes for offenders, reduce[]

recidivism, and lower incarceration costs to Ohio taxpayers.”

       {¶14} With this legislative intent in mind, we next consider cases from other

districts wherein an identical argument was raised. In Catron-Wagner, the defendant

violated her community-control sanctions by twice testing positive for alcohol and

submitting unacceptable AA meeting sheets. Catron-Wagner at ¶ 16. On appeal, the



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                       OHIO FIRST DISTRICT COURT OF APPEALS



defendant contended that her violations were “technical violations,” and therefore, the

trial court was bound by the 180-day limitation under R.C. 2929.15(B)(1)(c)(ii). The

Eighth District agreed, concluding that “ ‘technical violations’ constitute, in some, but

not all, circumstances, violations of community control sanctions that are neither new

criminal offenses nor felony offenses.” Id. at ¶ 35. Instead of formulating a bright-line

test, however, the Eighth District chose to analyze each case on the particular facts

presented to determine whether the violations “evidence a wholesale failure to engage in

the terms of * * * community control.” Id. at ¶ 39. Although a product of sound

reasoning, we do not adopt the rule in Catron-Wagner because its case-by-case analysis

provides very little guidance to the trial courts.

       {¶15} Kernall urges us to hold that technical violations are those violations of

the community-control sanction which are not criminal in nature. Kernall bases his

argument on the definition set forth in State ex rel. Taylor v. Ohio Adult Parole Auth.,

66 Ohio St.3d 121, 124, 609 N.E.2d 546 (1993), citing Inmates’ Councilmatic Voice v.

Rogers, 541 F.2d 633 (6th Cir.1976) (“Technical violations 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, leaving the State, etc.”). However, Taylor and Inmates Councilmatic were

interpreting technical violations of parole, not technical violations under R.C.

2929.15(B)(1)(c).

       {¶16} We find cases from the Second and Sixth Appellate Districts more

persuasive and instructive. In State v. Nelson, 2d Dist. Champaign No. 2018-CA-5,

2018-Ohio-4763, the defendant violated his community-control sanctions by contacting

a woman with whom he was ordered to have no contact. The no-contact sanction was

specifically tailored to the defendant to address his problematic consumption of alcohol.



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                        OHIO FIRST DISTRICT COURT OF APPEALS



On appeal, the defendant argued that his violations were noncriminal in nature, and

therefore, “technical violations” for which R.C. 2929.15(B)(1)(c)(ii) applied to limit his

sentence. The Second District disagreed, finding that the term “technical” implies it has

meaning distinct from “non-criminal” violations. Id. at ¶ 30, citing State v. Mannah, 5th

Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 14 (“Had the legislature intended R.C.

2929.15(B)(1)(c)(i) to apply to all violations of community control which were non-

criminal in nature, it could have specifically stated so in the statute.”). Following Fifth

District jurisprudence, the Second District adopted a bright-line test distinguishing

between “ ‘an administrative requirement facilitating community control supervision,’ ”

the violation of which would be “technical,” and “ ‘a substantive rehabilitative

requirement which addressed a significant factor contributing to appellant’s criminal

conduct,’ ” the violation of which would be “non-technical.” Id. at ¶ 32. Based on this

distinction, the Second District held that the defendant’s contact with the woman,

although noncriminal in nature, was a nontechnical violation for purposes of R.C.

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

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

Sixth District adopted the rationale set forth in Mannah and Nelson. The defendant in

Calhoun violated his community-control sanctions by absconding from reporting to his

probation office in West Virginia. The placement of the defendant’s community-control

supervision in West Virginia, as opposed to Ohio, was specifically tailored to allow the

defendant access to his ongoing education, full-time lawful employment, and custody of

his two minor children. On appeal, the defendant contended that his violations met the

intended definition of a “technical violation,” and therefore, the trial court was bound by

the 90-day limitation under R.C. 2929.15(B)(1)(c)(i). The Sixth District disagreed,

holding that



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       common sense and the evident purpose for trial courts to retain broad

       discretion to both determine revoking a community control sanction and

       then to fashion an appropriate sanction for that violation lead us to view

       the General Assembly did not intend “technical violations” to impede a

       court’s discretion to sanction under the totality of the circumstances to

       specifically tailor substantive rehabilitative requirements designed to

       address the offender’s conduct.

Id. at ¶ 30. Based on that rationale, the Sixth District concluded that the defendant’s

violation of a specifically-tailored condition cannot be considered a technical violation of

community control “where the special condition was a substantive rehabilitative

requirement which addressed a significant factor contributing to [defendant’s] criminal

conduct.” (Internal citations omitted.) Id.

       {¶18} 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 Nelson at ¶ 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 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




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demonstrates a failure to comply with the community-control sanction as a whole, this is

also not a technical violation.

       {¶19} Kernall is not entitled to the 90-day limitation under either rationale. On

June 13, 2018, Kernall pled guilty to one count of trafficking in cocaine. That same day,

Kernall reported to the Hamilton County Adult Probation Department for a

presentence-investigation report, where he tested positive for cocaine and marijuana.

On June 20, 2018, the trial court sentenced Kernall to three years of community control

and, pursuant to the probation department’s referral, required Kernall to complete

substance-abuse treatment as a special condition of community control. However,

Kernall failed to attend substance-abuse orientation scheduled for August 6, 2018. It is

apparent from his conduct subsequent to August 6—twice failing to report to the

probation department—that Kernall never intended to reschedule the substance-abuse

orientation.   As of October 16, 2018, the date of the community-control-violation

hearing, Kernall never attended, or even began, substance-abuse treatment.          This

conduct constitutes a significant failure to comply with a substantive rehabilitative

requirement that was specifically tailored to Kernall’s underlying conduct, and is not a

technical violation for purposes of R.C. 2929.15(B)(1)(c).

       {¶20} The record also shows Kernall’s lack of efforts at complying with the

numerous conditions of his community-control sanctions. 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.



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Therefore, Kernall is not entitled to the 90-day limitation under R.C. 2929.15(B)(1)(c)(i),

and his third assignment of error is overruled.

                          3. Kernall’s Second Assignment of Error

          {¶21} In his second assignment of error, Kernall argues that his sentence is

contrary to law because the trial court considered prejudicial conduct not included in

the probation department’s complaint.             Although Kernall mentioned that the

conduct was “not really a part of the violation anyway,” he failed to object to the lack

of written notice. Instead, he chose to address the allegations in mitigation. Because

this issue was not properly raised by Kernall before the trial court, we review for plain

error.

          {¶22} To successfully assert that a trial court committed plain error, the

defendant must show that the error is both obvious from its face and prejudicial. State

v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 23. Plain error exists

only if, but for the error, the outcome of the proceeding would have been different. State

v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990). “[T]he plain error rule

should be applied with utmost caution and should be invoked only to prevent a clear

miscarriage of justice.” State v. Underwood, 3 Ohio St.3d 12, 14, 444 N.E.2d 1332

(1983).

          {¶23} Minimum requirements of due process apply to community-control-

revocation hearings. State v. King, 1st Dist. Hamilton No. C-010330, 2002-Ohio-373,

*2.   “These requirements include (1) written notice of the claimed violations; (2)

disclosure of the evidence against the offender; (3) an opportunity to be heard in person

and to present evidence; (4) the right to confront and cross-examine adverse witnesses;

(5) a neutral and detached magistrate, and (6) written findings of fact stating the

evidence relied on and the reasons for revocation.” Id.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24} By way of formal complaint, Kernall received written notice of four

claimed community-control violations: (1) failing to conduct himself properly by

obtaining five new misdemeanor capiases, (2) failing to report to the probation

department on two separate occasions, (3) failing to show proof of employment

verification, and (4) failing to report to the Court Clinic for substance-abuse assessment.

At some point, a community-control-violation report was submitted to the trial court

and an in-chambers discussion was held regarding its contents. The report alleged

additional violations of community control, which were read into the record after

Kernall pled no contest. The additional violations included, but were not limited to, an

instance where Kernall ran from two probation officers, was taken into custody, and had

to be tased.

       {¶25} It is unclear whether the report and/or its contents were ever disclosed to

Kernall personally.   It is clear, however, that Kernall was confused by the court’s

recitation of its contents at the October 16 hearing. Therefore, we cannot confidently say

that Kernall was afforded his due-process right of prior written notification. However,

Kernall has not demonstrated any prejudice from the error. Kernall admitted to, and

pled no contest to, four other violations. Based on the facts before the court and

Kernall’s plea of no contest, the trial court found Kernall guilty of violating community

control and imposed an appropriate sanction. Therefore, it was not plain error to admit

the additional violations of community control without prior written notice. Kernall’s

second assignment of error is overruled.

                                    IV. Summary

       {¶26} Having considered each of Kernall’s assignments of error, we cannot find

that the 12-month sentence is contrary to law. We accordingly affirm the trial court’s

judgment.



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                                                                      Judgment affirmed.

M OCK , P.J., and M YERS , J., concur.


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




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