[Cite as State v. Ford, 2019-Ohio-1196.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




STATE OF OHIO,                                    :

        Appellee,                                 :      CASE NO. CA2018-07-052

                                                  :             OPINION
    - vs -                                                       4/1/2019
                                                  :

DOUGLAS E. FORD,                                  :

        Appellant.                                :



 CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                        Case No. 2015CR000426



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

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



        PIPER, J.

        {¶ 1} Appellant, Douglas E. Ford, appeals the prison sentence imposed by the

Clermont County Court of Common Pleas as a penalty for a community control violation.

        {¶ 2} In August 2015, appellant was indicted for two drug possession offenses.

These charges resulted from a traffic stop by the Ohio State Highway Patrol for the

suspected operation of a vehicle while under the influence of drugs or alcohol. As part of that
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investigation, the trooper found appellant in possession of two schedule one drugs: cathinone

(commonly referred to as "bath salts") and methylenedioxyamphetamine ("MDA"). Appellant

pled guilty to the possession of cathinone, a fifth-degree felony pursuant to R.C. 2925.11, in

exchange for dismissal of the second drug offense. The trial court sentenced appellant in

May 2016 to four years of community control and advised appellant that he could serve

twelve-months in prison for a violation of the terms and conditions of community control.

       {¶ 3} A little under a year later, in April 2017, appellant's probation officer filed an

affidavit of violation alleging that appellant had violated the terms and conditions of

community control by committing multiple traffic and criminal offenses, failing to report these

offenses, testing positive for "THC" on a drug screen, failing to report to probation office

visits, failing to comply with probation orders, and failing to pay monies owed to the court.

The trial court held a hearing for these violations later that same month and appellant

admitted to the violations. The trial court accepted the violation admission and continued the

matter for sentencing in June 2017.

       {¶ 4} Prior to the sentencing hearing, appellant's probation officer filed a

supplemental affidavit of violations in early June 2017 further alleging that appellant tested

positive for marijuana, alcohol, cocaine, and fentanyl in three separate drug screenings and

participated in an illegal drug sale. The trial court held a hearing in mid-June, wherein

appellant also admitted to the additional violations from the supplemental affidavit. The trial

court continued the matter to July 2017 for sentencing on all the admitted violations. At that

sentencing hearing, the trial court allowed appellant to remain on community control but

modified his probation to intensive supervision.

       {¶ 5} In June 2018, appellant's probation officer filed another affidavit of violation

alleging appellant tested positive for cocaine on two separate drug screens, failed to follow

probation instructions, and failed to pay monies owed to the court.            Appellant was
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subsequently arrested for this violation. The trial court held a violation hearing the following

day wherein appellant admitted to the violation. At this hearing, the trial court "revoked"

appellant's community control and sentenced him to ten months in prison. Appellant

objected to the prison sentence, raising the prison limitation provision provided in R.C.

2929.15(B)(1)(c)(i). The trial court overruled the objection, finding that the statutory provision

did not apply.

       {¶ 6} Appellant now appeals the sentence, raising one assignment of error for our

review:

       {¶ 7} THE TRIAL COURT ERRED IN FINDING THAT R.C. 2929.15(B)(1)(c)(i) DID

NOT APPLY TO APPELLANT.

       {¶ 8} Appellant contends the trial court erred when it imposed a ten-month prison

term, because testing positive for cocaine during a drug screen should not be considered a

"criminal offense" pursuant to R.C. 2929.15(B)(1)(c)(i). Specifically, appellant argues the

statute requires at least formal charges to constitute a "criminal offense." We find that

appellant's argument lacks merit.

       {¶ 9} We review a felony community control violation penalty, as we review all felony

sentences, pursuant to R.C. 2953.08(G)(2). See State v. Walsson, 12th Dist. Clermont No.

CA2018-02-004, 2018-Ohio-4485, ¶ 8-9. Under R.C. 2953.08(G)(2), an appellate court may

modify or vacate a felony sentence only if the sentence is clearly and convincingly contrary to

law or unsupported by the record. State v. McGowan, 147 Ohio St. 3d 166, 2016-Ohio-2971,

¶ 1, citing State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 7. A sentence is not

contrary to law where the sentence is within the permitted statutory range. State v. Ahlers,

12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8.

       {¶ 10} The Ohio Revised Code provides the trial court with several options for

punishing a community control violation. Relevant to this review, the trial court may impose a
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term of prison as a possible penalty, if that prison term is within the statutorily permitted

range for the original criminal offense and the offender was provided notice of the prison term

at the sentencing hearing for the original offense or an antecedent community control

violation. R.C. 2929.15(B)(1)(c) and 2929.15(B)(3); State v. Brooks, 103 Ohio St. 3d 134,

2004-Ohio-4746, ¶ 29; State v. Fraley, 105 Ohio St. 3d 13, 2004-Ohio-7110, ¶ 18.

       {¶ 11} Nevertheless, there are limitations placed on the potential prison term for an

offender convicted of a fifth-degree felony. In that instance, the prison term may not exceed

90 days when the violation constitutes either a "technical violation" or a non-felony violation

of law. R.C. 2929.15(B)(1)(c)(i).

       {¶ 12} Contrary to appellant's argument, we have previously held that R.C.

2929.15(B)(1)(c)(i) does not apply where the offender "engages in conduct constituting a new

felony offense" (emphasis added). Walsson at ¶ 12. Testing positive for a controlled

substance on a drug screen amounts to a felonious violation of law when that substance is

proscribed by statute as a felony offense. State v. Shaffer, 12th Dist. Clermont No. CA2017-

12-064, 2018-Ohio-5297, ¶ 16-17; see also State v. Showalter, 12th Dist. Clermont No.

CA2018-04-023, 2018-Ohio-5299, ¶ 13.

       {¶ 13} Other Ohio appellate courts have likewise held that for R.C. 2929.15(B)(1)(c)(i)

purposes, it is the activity itself that is considered and not whether a formal charge has been

issued. State v. Abner, 4th Dist. Adams Nos. 18CA1061 and 18CA1062, 2018-Ohio-4506, ¶

15 (heroin use constituted a crime regardless of a formal charge or conviction); State v.

Johnson, 5th Dist. Licking No. 18-CA-37, 2019-Ohio-376, ¶ 13-15 (methamphetamine use is

a felony offense irrespective of formal charges); and State v. Cozzone, 11th Dist. Geauga

No. 2017-G-0141, 2018-Ohio-2249, ¶ 39 (overdosing on heroin is criminal in nature without

being charged or convicted of aforesaid conduct).

       {¶ 14} In this case, appellant was cited and arrested for testing positive for cocaine on
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two separate drug screenings. Appellant admitted to the violations at the June 2018 violation

hearing. At this hearing, the trial court decided appellant was not amenable to further

community control sanctions, in part, because he refused more restrictive community control

sanctions and because the use of cocaine constituted a felony criminal offense. Specifically,

the use of cocaine is in violation of R.C. 2925.11(A) and constitutes a fifth-degree felony

pursuant to R.C. 2925.11(C)(4)(a). Given our previous decisions, we conclude the trial court

did not err when it found the 90-day prison limitation inapplicable. Furthermore, the ten-

month prison term was within the statutorily permitted range for appellant's original offense

and was less than the prison term advised by the trial court at the original sentencing

hearing.

      {¶ 15} Therefore, the prison sentence imposed by the trial court was not contrary to

law and was supported by the record. Accordingly, appellant's sole assignment of error is

overruled.

      {¶ 16} Judgment affirmed.


      HENDRICKSON, P.J., and RINGLAND J., concur.




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