[Cite as State v. Reed, 2017-Ohio-8237.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 17CA20
DYLAN REED

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case No. 2016-CR-154


JUDGMENT:                                       Reversed and Remanded

DATE OF JUDGMENT ENTRY:                         October 18, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GARY BISHOP                                    JAMES L. BLUNT, II.
Prosecuting Attorney                           3954 Industrial Parkway Drive
Richland County, Ohio                          Shelby, Ohio 44875

By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 17CA20                                                       2

Hoffman, J.



       {¶1}   Defendant-appellant Dylan Reed appeals the judgment entered by the

Richland County Common Pleas Court sentencing him to twelve months incarceration for

aggravated possession of drugs (R.C. 2925.11(A)) upon a plea of no contest. Appellee

is the state of Ohio.

                          STATEMENT OF THE CASE AND FACTS

       {¶2}   On March 14, 2016, Appellant was indicted by the Richland County Grand

Jury on one count of aggravated possession of drugs in violation of R.C. 2925.11(A), a

felony of the fifth degree. He was arrested on June 3, 2016, and released on a bail

appearance bond that same day.

       {¶3}   Appellant entered a plea of no contest to the charge on October 12, 2016.

He was placed in the pre-conviction Substance Abuse Treatment Court program. His

probation officer later discovered while in the program, Appellant used his cell phone to

send pictures of drugs and of weapons, signing his messages “The Drug Dealer.” He

provided information to others in the diversion program to use LSD, as the drug screens

would not reveal its presence.

       {¶4}   As a result of Appellant’s activities, he was terminated from the Substance

Abuse Treatment Court program and found guilty upon his plea of no contest. The case

proceeded to sentencing on February 22, 2017. At the sentencing hearing, Appellant’s

probation officer presented information to the court about Appellant’s drug activities

during the court treatment program. The court sentenced Appellant to twelve months

incarceration.
Richland County, Case No. 17CA20                                                           3


       {¶5}   Appellant prosecutes this appeal from the February 23, 2017 sentencing

entry of the trial court, assigning as error:

       {¶6}   “WHETHER THE TRIAL COURT ERRED IN IMPOSING A PRISON

SENTENCE FOR A FELONY OF THE FIFTH DEGREE OF TWELVE MONTHS.”

       {¶7}   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;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, 2015 WL 5722820,

¶ 31. 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 either the

record does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

       {¶8}   R.C. 2929.13(B)(1)(a) requires a trial court to sentence an offender to

community control for a fourth or fifth degree felony if certain criteria are met:



              (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

       offender is convicted of or pleads guilty to a felony of the fourth or fifth

       degree that is not an offense of violence or that is a qualifying assault

       offense, the court shall sentence the offender to a community control

       sanction of at least one year's duration if all of the following apply:

              (i) The offender previously has not been convicted of or pleaded

       guilty to a felony offense.

              (ii) The most serious charge against the offender at the time of

       sentencing is a felony of the fourth or fifth degree.
Richland County, Case No. 17CA20                                                           4


              (iii) If the court made a request of the department of rehabilitation and

       correction pursuant to division (B)(1)(c) of this section, the department,

       within the forty-five-day period specified in that division, provided the court

       with the names of, contact information for, and program details of one or

       more community control sanctions of at least one year's duration that are

       available for persons sentenced by the court.

              (iv) The offender previously has not been convicted of or pleaded

       guilty to a misdemeanor offense of violence that the offender committed

       within two years prior to the offense for which sentence is being imposed.



       {¶9}   R.C. 2929.13(B)(1)(b) sets forth exceptions to the requirement an offender

for a fifth degree felony, who meets the criteria set forth in subsection (a), be sentenced

to community control:



              (b) The court has discretion to impose a prison term upon an offender

       who is convicted of or pleads guilty to a felony of the fourth or fifth degree

       that is not an offense of violence or that is a qualifying assault offense if any

       of the following apply:

              (i) The offender committed the offense while having a firearm on or

       about the offender's person or under the offender's control.

              (ii) If the offense is a qualifying assault offense, the offender caused

       serious physical harm to another person while committing the offense, and,
Richland County, Case No. 17CA20                                                         5


      if the offense is not a qualifying assault offense, the offender caused

      physical harm to another person while committing the offense.

             (iii) The offender violated a term of the conditions of bond as set by

      the court.

             (iv) The court made a request of the department of rehabilitation and

      correction pursuant to division (B)(1)(c) of this section, and the department,

      within the forty-five-day period specified in that division, did not provide the

      court with the name of, contact information for, and program details of any

      community control sanction of at least one year's duration that is available

      for persons sentenced by the court.

             (v) The offense is a sex offense that is a fourth or fifth degree felony

      violation of any provision of Chapter 2907. of the Revised Code.

             (vi) In committing the offense, the offender attempted to cause or

      made an actual threat of physical harm to a person with a deadly weapon.

             (vii) In committing the offense, the offender attempted to cause or

      made an actual threat of physical harm to a person, and the offender

      previously was convicted of an offense that caused physical harm to a

      person.

             (viii) The offender held a public office or position of trust, and the

      offense related to that office or position; the offender's position obliged the

      offender to prevent the offense or to bring those committing it to justice; or

      the offender's professional reputation or position facilitated the offense or

      was likely to influence the future conduct of others.
Richland County, Case No. 17CA20                                                             6


              (ix) The offender committed the offense for hire or as part of an

       organized criminal activity.

              (x) The offender at the time of the offense was serving, or the

       offender previously had served, a prison term.

              (xi) The offender committed the offense while under a community

       control sanction, while on probation, or while released from custody on a

       bond or personal recognizance.



       {¶10} Appellant argues he was required to be sentenced to community control

under R.C. 2929.13(B)(1)(a).1The State argues a prison sentence was appropriate in the

instant case pursuant to R.C. 2929.13(B)(1)(b)(iii), because Appellant violated a condition

of his bond in conducting drug activity while in the court’s diversion program. Appellant

argues he violated a condition of his diversion program, but not of his bond, and pursuant

to R.C. 2929.13(B)(1)(a), the court was required to sentence him to community control.

       {¶11} In State v. Kelley, 5th Dist. Delaware No. 13 CAA 04 0028, 2014-Ohio-464,

the defendant violated the terms of his treatment in lieu of conviction (ILC) program. The

trial court sentenced him to prison pursuant to R.C. 2929.13(B)(1)(b). We affirmed based

on the trial court’s specific findings the defendant was in violation of conditions of his bond

and committed the offenses as part of organized criminal activity. Id. at ¶41.

       {¶12} Subsequently, several districts have distinguished Kelley in concluding

violation of an ILC program does not constitute grounds for a prison sentence under R.C.



1
 Appellant’s representation he met the criteria of R.C. 2929.13(B)(1)(a) for a community
control sanction has not been rebutted by the State in its brief. Further, the PSI report
demonstrates Appellant meets the criteria set forth in R.C. 2929.13(B)(1)(a)(i) and (iv).
Richland County, Case No. 17CA20                                                          7

2929.13(B)(1)(b). In State v. Holt, 2nd Dist. Montgomery No. 26031, 2014-Ohio-2204,

the Second District found Kelley did not apply where the trial court found the appellant

had violated the terms of his supervision, not the terms of his bond. Violation of terms of

supervision was insufficient, standing alone, to support a prison sanction pursuant to R.C.

2929.13(B)(1). Id. at p. 4. Likewise, the Eighth District found a prison sentence contrary

to law where the sentence was imposed for violation of an ILC program:



              The instant matter is indistinguishable from Holt. Lopez's violation of

       his ILC program, standing alone, is insufficient under R.C. 2929.13(B)(1) to

       support the trial court's decision to sentence him to a term of incarceration.

       Although the trial court found that Lopez violated the conditions of his ILC

       program, the court, like Holt, did not specifically find that Lopez violated the

       conditions of his bond. Holt at ¶ 15. The circumstances surrounding Lopez's

       offense of possession of cocaine, a felony of the fifth degree, meet all of the

       requirements listed in R.C. 2929.13(B)(1)(a). Furthermore, and unlike

       Kelley, where the trial court specifically found that the defendant: (1)

       violated the conditions of his bond while on ILC, and (2) committed the

       offenses as part of organized criminal activity, none of the exceptions

       enumerated in R.C. 2929.13(B)(1)(b) are applicable to the facts of the

       instant case. Kelley at ¶ 41. Thus, the trial court—without making any of the

       R.C. 2929.13(B)(1)(b)(i)-(xi) findings—had no discretion to sentence Lopez

       to a term of incarceration.
Richland County, Case No. 17CA20                                                          8

       State v. Lopez, 8th Dist. Cuyahoga No. 103032, 2015-Ohio-5269, 43 N.E.3d 492,

       ¶ 55.



       {¶13} The instant case is indistinguishable from Holt and Lopez. Unlike Kelley,

supra, the trial court did not make a finding Appellant violated his bond. The record does

not demonstrate Appellant violated his bond, but only violated the terms of his diversion

program.

       {¶14} The bond posted in the instant case is an appearance bond.               While

Appellant was to report to pretrial supervision as a special condition of the bond, the

record does not reflect his activities in the drug diversion program violated any specific

requirements of his bond, nor did the court so find. The bond only requires Appellant

report to the pretrial supervision office upon release from jail. The bond was entered prior

to Appellant’s acceptance into SATC, and the conditions of continued participation in

SATC are not also conditions of his bond. The mere fact Appellant was released on bond

while he was participating in SATC does not convert a violation of the terms of SATC to

a violation of his appearance bond. While the State argues in its brief, “There can be no

greater violation of bond than to commit a new crime,” the record does not reflect his bond

was revoked for his activities in the SATC program, nor does it reflect he was charged

with a new crime.

       {¶15} While the court’s concerns with Appellant’s alleged drug activity while

participating in the diversion program are understandable, the legislature has not seen fit

to include violation of the terms of a pre-conviction drug treatment program as an

exception to the requirement an offender who meets the criteria of R.C. 2929.13(B)(1)(a)
Richland County, Case No. 17CA20                                                      9


be sentenced to community control. Accordingly, we find Appellant’s sentence was

contrary to law.

       {¶16} The assignment of error is sustained. The judgment of the Richland County

Common Pleas Court is reversed and this case is remanded to that court for resentencing.

By: Hoffman, J.

Delaney, P.J. and

Wise, John, J. concur
