[Cite as State v. Urban, 2019-Ohio-2244.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                  :       Hon. Craig R. Baldwin, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
ROBERT M. URBAN, III                        :       Case Nos. 18 CAA 09 0066,
                                                    18 CAA 09 0067, 18 CAA 09 0068
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case Nos. 14 CR I 10 0463,
                                                    14 CR I 10 0464 & 16 CR I 05 0227




JUDGMENT:                                           Vacated and Remanded




DATE OF JUDGMENT:                                   June 4, 2019




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOEL C. WALKER                                      KATHERINE R. ROSS-KINZIE
145 N. Union Street                                 250 East Broad Street
Third Floor                                         Suite 1400
Delaware, OH 43015                                  Columbus, OH 43215
Delaware County, Case Nos. 18 CAA 09 0066, 18 CAA 09 0067, 18 CAA 09 0068                   2

Wise, Earle, J.

         {¶ 1} Defendant-Appellant Robert M. Urban, III, appeals the May 9, 2018

judgments of conviction and sentence of the Court of Common Pleas, Delaware County,

Ohio which revoked his community control sanctions. Plaintiff-Appellee is the state of

Ohio.

                         FACTS AND PROCEDURAL HISTORY

         {¶ 2} This matter involves guilty pleas made by Urban on May 17, 2016 in three

cases.

         {¶ 3} In the first, case number 14CR-I-10-0463, Urban pled guilty to two counts

of identity fraud, felonies of the fourth degree, and three counts of forgery, felonies of the

fifth degree.

         {¶ 4} In the second case, case number 14CR-I-10-0464, Urban pled guilty to

misuse of credit cards, a felony of the fifth degree.

         {¶ 5} In the third case, case number 16CR-I-05-0227, Urban pled guilty to two

counts of identity fraud, one count being a felony of the fourth degree and the second

being a felony of the fifth degree.

         {¶ 6} The trial court sentenced Urban to an aggregate total of 78 months

incarceration, but suspended that sentence and placed Urban on community control for

three years. Among other conditions, Urban was to refrain from further criminal conduct,

and was prohibited from owning any weapons or leaving the state without written

permission of Adult Court Services. Additionally, Urban was to make restitution in the

amount of $5,284.
Delaware County, Case Nos. 18 CAA 09 0066, 18 CAA 09 0067, 18 CAA 09 0068                 3


       {¶ 7} On April 18, 2018, the state filed a motion to suspend Urban's community

control sanctions in each case alleging he had violated each of the forgoing conditions.

Specifically, the state alleged Urban had been convicted of misdemeanor passing bad

checks in Licking County case number 18CRB00367 and charged with passing bad

checks in Licking County case number 18CRB00785. The state additionally alleged that

Urban was in possession of a rifle fitted with a bayonet, and had left the state of Ohio and

traveled to the state of Washington without permission.

       {¶ 8} On May 7, 2018, a hearing was held on the matter. The state withdrew the

allegation regarding the rifle, and Urban admitted to the remaining allegations. The state

requested that the trial court impose Urban's previously suspended sentences and

counsel for Urban urged the court to impose less than the entire suspended sentence.

The trial court found Urban was not amenable to community control, terminated his

community control, and imposed the previously suspended aggregate sentence of 78

months. R.C. 2929.15(B)(1), which places limits on sentences for certain community

control violations was never raised or discussed by either party or the court.

       {¶ 9} Urban now brings this appeal raising two assignments of error:

                                             I

       {¶ 10} "ROBERT URBAN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO

RAISE THE SENTENCING CAPS IN R.C. 2929.15(B)(1)(C)."

                                             II

       {¶ 11} "THE TRIAL COURT’S PRISON SENTENCES FOR TECHNICAL AND

MISDEMEANOR VIOLATIONS OF COMMUNITY CONTROL SANCTIONS ARE
Delaware County, Case Nos. 18 CAA 09 0066, 18 CAA 09 0067, 18 CAA 09 0068                      4


CONTRARY TO LAW BECAUSE THEY EXCEEDED THE 180-DAY AND 90-DAY

MAXIMUM SENTENCES AUTHORIZED BY R.C. 2929.15(B)(1)(c)."

       {¶ 12} We address Urban's assignments of error together. Urban argues his

sentences must be vacated because they are contrary to law as they exceed what is

permitted by R.C. 2929.15(B)(1)(c) for community control sanctions where the underlying

offenses are fourth and fifth degree felonies. Urban further argues his counsel should

have brought this error to the attention of the trial court. Because R.C. 2929.15(B)(1)(c)

was never raised or considered below, we agree that Urban's sentences must be vacated.

       {¶ 13} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.

R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a

sentence and remand for resentencing where we clearly and convincingly find the

sentence is contrary to law.

       {¶ 14} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477, 120 N.E.2d 118.

       {¶ 15} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors
Delaware County, Case Nos. 18 CAA 09 0066, 18 CAA 09 0067, 18 CAA 09 0068                5


prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.” Strickland

at 694, 104 S.Ct. 2052.

      {¶ 16} Effective September 29, 2017, H.B. 49 amended R.C. 2929.15(B)(1)(c),

changing the potential penalties for violations of community control sanctions. The statue

now provides in relevant 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 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
Delaware County, Case Nos. 18 CAA 09 0066, 18 CAA 09 0067, 18 CAA 09 0068                6


              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.



       {¶ 17} Emphasis added.

       {¶ 18} Here, Urban's community control violations took place after the amendment

of R.C 2929.15(B)(1)(c) and consisted of committing two new first degree misdemeanor

offenses, failing to pay restitution, and leaving the state without permission. The nature

of a technical violation is not defined in R.C. 2929.15(B)(1). However, in Inmates

Councilmatic Voice v. Rogers, 541 F.2d 633 (6th Cir.1976) the United States Court of

Appeals for the Sixth Circuit defined the term as it pertained to a parole revocation:



              Petitioner also invokes the sixty-day rule mentioned in a January 21,

              1992 contempt order in the Inmates' Councilmatic Voice case.

              Inmates' Councilmatic Voice v. Wilkinson (Jan. 21, 1992), N.D.Ohio

              No. C72-1052, unreported. The order does require certain parole
Delaware County, Case Nos. 18 CAA 09 0066, 18 CAA 09 0067, 18 CAA 09 0068                 7


             revocation hearings to be held within sixty days after the date on

             which the parolee is arrested or held by means of a detainer.

             However, it plainly states that “[t]he sixty-day rule is applicable to all

             Ohio parolees charged by Defendants with a technical violation of a

             term or condition of their parole.” (Emphasis added.) Id. at 2. In

             Inmates' Councilmatic Voice, supra, 541 F.2d at 635, fn. 2, the Sixth

             Circuit Court of Appeals defined “technical violations” 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.”



      {¶ 19} In State ex rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St.3d 121, 124,

609 N.E.2d 546 (1993), the Supreme Court of Ohio adopted the definition of technical

violation set forth in Inmates Councilmatic Voice v. Rodgers. Courts of appeal, including

this court, have subsequently applied this definition to sentencing determinations under

R.C 2929.15. See e.g., State v. Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062,

2018-Ohio-4506; State v. Cozzone, 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-

2249; State v. Pino, 11th Dist. Lake No. 2017-L-171, 2018-Ohio-2825, State v. Johnson,

5th Dist. Licking No. 18-CA-37, 2019-Ohio-376.

      {¶ 20} In the instant matter, however, the record is devoid of any indication that the

nature of Urban's violations were considered, or that the statute as amended was

considered by counsel for Urban, the state, or the trial court. We therefore vacate Urban's
Delaware County, Case Nos. 18 CAA 09 0066, 18 CAA 09 0067, 18 CAA 09 0068              8


sentence and remand the matter to the trial court for resentencing with due consideration

to 2929.15(B)(1)(c).




      {¶ 21} The sentencing judgements of the Delaware County Court of Common

Pleas are vacated and remanded for resentencing consistent with this opinion.




By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




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