[Cite as State v. Graham, 2019-Ohio-1485.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                          Court of Appeals No. WD-18-021

        Appellee                                       Trial Court No. 2017CR0213

v.

Andrew Graham                                          DECISION AND JUDGMENT

        Appellant                                      Decided: April 19, 2019

                                                *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                                *****

        ZMUDA, J.

                                             I. Introduction

        {¶ 1} This is an appeal from the judgment of the Wood County Court of Common

Pleas, revoking appellant’s, Andrew Graham, community control, and ordering him to

serve 17 months in prison. Because the trial court erred when it sua sponte declared R.C.

2929.15(B)(1)(c)(ii) unconstitutional, we reverse.
                          A. Facts and Procedural Background

       {¶ 2} On May 4, 2017, appellant was indicted on one count of failure to provide

notice of change of address in violation of R.C. 2950.05(F)(1) and 2950.99(A)(1)(a)(iii),

a felony of the fourth degree. Appellant initially pled not guilty, but later entered a guilty

plea to the aforementioned offense after reaching an agreement with the state. Pursuant

to the agreement, the state recommended a community control sentence. On October 24,

2017, the trial court ordered appellant to serve three years on community control, and

informed appellant that he may be subject to a prison term of up to 18 months if he

violated the terms of his community control.

       {¶ 3} On January 29, 2018, a warrant was issued for appellant’s arrest. According

to the order of arrest, appellant violated the conditions of his probation. Two days later,

on January 31, 2018, the state filed a petition for revocation of community control.

According to an exhibit attached to the petition, appellant

              was instructed, by telephone, to report to the Wood County Adult

       Probation Department on December 19, 2017, at 3:00 p.m. The defendant

       failed to report as directed for his scheduled office appointment. After the

       defendant failed to report for 6 additional office appointments, [he] was

       allotted a final opportunity to report on January 26, 2018, at 3:00 p.m. The

       defendant failed to report as directed for his scheduled appointment.




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       {¶ 4} On February 6, 2017, the day the arrest warrant was served, appellant

appeared before the trial court for a bond hearing. Appellant was released on bond and

ordered to appear for a community control violation hearing on February 13, 2018.

       {¶ 5} At the February 13, 2018 community control violation hearing, appellant,

through counsel, stipulated to the violations outlined in the state’s petition and waived a

formal hearing. During the hearing, appellant’s counsel explained that appellant failed to

report to his scheduled appointments because he had no means of transportation to the

probation department. Appellant’s counsel emphasized that appellant called into the

probation department on each occasion to inform his probation officer that he would not

be able to make his appointment. Further, counsel highlighted the fact that appellant

turned himself in as soon as the underlying arrest warrant was issued.

       {¶ 6} Regarding the sentence available to the trial court, appellant’s counsel

argued that appellant’s violations were technical in nature and were therefore subject to a

maximum sentence of 180 days pursuant to R.C. 2929.15(B)(1)(c)(ii). For its part, the

state recommended a prison sentence of 180 days. When the trial court asked the state to

clarify why it was only recommending 180 days, appellant’s counsel interjected and

explained:

              Judge, under the new law, unless there is a new crime committed,

       the Court is limited on felony fours to a 180 day sentence. As the law is

       written, unless a new felony is charged or a new misdemeanor is charged, it

       is, by definition, it is what is called a technical violation.




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              On the facts of this case, and what’s set in the corroboration, they are

       clearly technical violations. In any event, whether that was a wise choice

       by the legislature is certainly open to debate, but that’s what they did.

       {¶ 7} The state then indicated that the technical-nontechnical distinction contained

in R.C. 2929.15(B)(1)(c)(ii) provided the basis for its recommendation of a 180-day

sentence, implicitly conceding that the violation was technical in nature. Ultimately the

state explained that it was “only able to recommend the 180 days.”

       {¶ 8} In response to the parties’ agreement as to the application of R.C.

2929.15(B)(1)(c)(ii), the court stated:

              The Court does not believe that the law is constitutional because it

       violates the separation of powers. This Court indicated at the time of

       sentencing that I was reserving an 18-month prison sentence and I’m not

       going to make a liar out of myself. At some point in time, the courts have

       to draw the line and say, you know, we have certain obligations, certain

       things that we have to do, and an intrusion by another agency into the

       judicial branch of government is unconstitutional.

              At this time, based upon the defendant’s stipulation to the violation,

       I am going to impose a 17 month prison sentence * * *. I’ve outlined all of

       the reasons for that, based upon his complete and utter failure to comply

       with any of the community control sanctions. I believe that a sex offender

       who has failed to report his address and has been given every opportunity,




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        that this is a reasonable sentence. It’s not waste of resources given all of

        the facts in this case.

        {¶ 9} Following the court’s imposition of the 17-month sentence, appellant’s

counsel moved the court for a stay of execution pending appeal, which the trial court

denied. Thereafter, appellant filed a timely notice of appeal.

                                  B. Assignment of Error

        {¶ 10} On appeal, appellant presents one assignment of error for our review:

               The trial court committed plain error in sentencing Appellant to

        prison in excess of one hundred eighty days on a fourth degree felony for a

        technical violation of his community control, in violation of R.C.

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

                                         II. Analysis

        {¶ 11} In his sole assignment of error, appellant argues that the trial court erred

under R.C. 2929.15(B)(1)(c)(ii) when it sentenced him to a prison term in excess of 180

days.

        {¶ 12} Under R.C. 2929.15(B)(1)(c)(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




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       new criminal offense and that is not a felony, the prison term shall not

       exceed one hundred eighty days.

       {¶ 13} Here, the parties agreed below that R.C. 2929.15(B)(1)(c)(ii) applies. On

appeal, appellant argues that his failure to report to his probation officer constituted a

technical violation of the conditions of his community control sanction and, thus, he

should not have been sentenced to any more than 180 days in prison for said violation.

According to appellant, “anything other than a new conviction would be a technical

violation.”

       {¶ 14} In its brief to this court, the state acknowledges that appellant’s violation

“was a ‘technical’ violation, as R.C. 2929.15(B)(1)(c) has been interpreted.” The state

goes on to indicate that it “will not advance a counter-argument in this brief.”

       {¶ 15} Notably, appellant’s brief to this court was filed on July 11, 2018, and the

state’s brief was filed on October 2, 2018. Thereafter, on January 25, 2019, we issued

our decision in State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶ 29,

in which we rejected appellant’s interpretation of “technical violation” and stated that the

determination of whether a violation is technical in nature depends upon whether the

condition violated was “a specifically tailored substantive rehabilitative requirement or

merely a general administrative requirement to facilitate supervision during the period of

the sanction.” We went on to state that the term “technical” is distinct from the term

“noncriminal.” Id. at ¶ 30, citing State v. Mannah, 5th Dist. Fairfield No. 17-CA-54,

2018-Ohio-4219, ¶ 14.




6.
       {¶ 16} Similarly, on January 17, 2019, the Eighth District released its decision in

State v. Neville, 8th Dist. Cuyahoga No. 106885, 2019-Ohio-151, which also addressed

the meaning of “technical violation,” and found that “the legislature did not intend to

limit the meaning of ‘technical violation’ only to conduct that is not criminal in nature.

Rather, it is our view that the General Assembly intended to allow the judge to retain

some discretion when faced with more serious violations that do not rise to the level of a

crime.” Id. at ¶ 49. As a result of its interpretation of “technical violation,” the Eighth

District held that Neville’s complete failure to report to probation for a period of three

months was not a technical violation. Id. at ¶ 48. The court explained its reasoning as

follows:

       The outcome of this case would have likely been different had Neville

       failed to report for one meeting with her probation officer after she had

       previously reported. Failing to report one time after previously reporting

       may be a technical violation—depending on all of the other factors of that

       individual case. But here, Neville failed to report at all for over three

       months, and thus, failed to comply with any of the conditions imposed for

       her community control sanctions. Id.

       {¶ 17} In light of our decision in Calhoun, and guided by the decision in Neville,

we find no merit in appellant’s assertion that his community control violation is technical

merely because a failure to report does not constitute a new criminal offense. However,

our analysis does not end there.




7.
       {¶ 18} Notably, the trial court in this case imposed a prison sentence greater than

180 days, not because it found that appellant’s violation was nontechnical and therefore

outside the scope of R.C. 2929.15(B)(1)(c)(ii), but because it found R.C.

2929.15(B)(1)(c)(ii) to be unconstitutional.

       {¶ 19} Generally, courts do not address constitutional issues unless it is absolutely

necessary to do so. City of Cleveland v. Williams, 8th Dist. Cuyahoga No. 106454, 2018-

Ohio-2937, ¶ 12. This principle, known as the constitutional avoidance doctrine, is well-

established in Ohio law. In State ex rel. Herbert v. Ferguson, 142 Ohio St. 496, 52

N.E.2d 980 (1944), the Supreme Court of Ohio stated that “[c]onstitutional questions will

not be decided until the necessity for a decision arises on the record before the court.” Id.

at paragraph two of the syllabus; see also Ohioans for Fair Representation, Inc. v. Taft,

67 Ohio St.3d 180, 183, 616 N.E.2d 905 (1993), quoting Hall China Co. v. Pub. Utils.

Comm., 50 Ohio St.2d 206, 210, 364 N.E.2d 852 (1977) (“‘Ohio law abounds with

precedent to the effect that constitutional issues should not be decided unless absolutely

necessary.’”).

       {¶ 20} “‘Although the doctrine of constitutional avoidance tends to apply most

often in the context of appeals, the doctrine applies equally to the trial courts.’” Williams

at ¶ 13, quoting Fulton v. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 104561, 2017-

Ohio-971, ¶ 10.

       {¶ 21} Here, the trial court erred in reaching the constitutional question because

the issue was never raised by the parties. In Ohio Pub. Emps. Retirement Sys. v. Coursen,




8.
156 Ohio App.3d 403, 2004-Ohio-1229, 806 N.E.2d 197 (9th Dist.), the Ninth District

reversed a trial court’s judgment in a case involving payment of survivor benefits, where

the trial court, sua sponte, declared portions of R.C. Chapter 145 unconstitutional. In its

decision, the Ninth District found that there was no reason for the trial court “to delve

into the issue of the constitutionality of various sections of R.C. Chapter [145],” because

the constitutional issue had not been raised by either party. Id. at ¶ 6. Similarly, in

Williams, supra, 8th Dist. Cuyahoga No. 106454, 2018-Ohio-2937, the Eighth District

reversed the decision of a trial court, where the court raised a Fourth Amendment issue

sua sponte. There, the court took issue with the fact that the trial court “essentially

stepped into the shoes of Williams and/or defense counsel and raised the Fourth

Amendment issue on Williams’s behalf.” Id. at ¶ 24.

       {¶ 22} As in Coursen and Williams, the trial court in this case held, sua sponte,

that R.C. 2929.15(B)(1)(c)(ii) violated separation of powers principles and was therefore

unconstitutional. In so doing, the trial court essentially “stepped into the shoes” of the

state and raised the constitutionality of the statute for the state. Neither party argued that

R.C. 2929.15(B)(1)(c)(ii) violated separation of powers. Rather, appellant argued, and

the state agreed, that R.C. 2929.15(B)(1)(c)(ii) was applicable in this case, and the state

structured its sentence recommendation accordingly. When the parties in an action do

not raise constitutional concerns, it is inappropriate for the court to address such issues

sua sponte, as it is unnecessary to do so in order to resolve the matter. First Merchants

Bank v. Gower, 2d Dist. Darke No. 2011-CA-11, 2012-Ohio-833, ¶ 18.




9.
       {¶ 23} Because the separation of powers issue was not raised by the parties, the

trial court should not have passed upon the issue sua sponte. In so doing, the trial court

arguably became an advocate for the state. See In re Estate of Nibert, 12th Dist. Madison

No. CA86-05-012, 1987 Ohio App. LEXIS 6570, *6 (Apr. 27, 1987) (rejecting an

argument that the trial court should have sua sponte ordered a party to produce

documents or hold the party in contempt based upon the concern that “serious questions

would exist as to whether [the trial court] had abandoned its neutral posture in the

litigation and become an advocate.”). “It is the court’s role to act as an arbiter, not an

advocate.” State ex rel. Twitchell v. Saferin, Slip Opinion No. 2018-1238, 2018-Ohio-

3829, ¶ 16 (plurality opinion).

       {¶ 24} In essence, the trial court’s decision striking R.C. 2929.15(B)(1)(c)(ii) as

unconstitutional amounted to a declaratory judgment. “Under Ohio law, three elements

are necessary to obtain a declaratory judgment as an alternative to other remedies:

(1) that a real controversy between adverse parties exists; (2) which is justiciable in

character; and (3) that speedy relief is necessary to the preservation of rights which may

be otherwise impaired or lost.” Quality Care Transport v. Ohio Dept. of Job & Family

Servs., 2d Dist. Clark Nos. 2009 CA 113, 2009 CA 121, 2010-Ohio-4763, ¶ 16, citing

Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146, 586 N.E.2d 80 (1992).

       {¶ 25} In Gower, supra, 2d Dist. Darke No. 2011-CA-11, 2012-Ohio-833, a

foreclosure case, the Second District similarly concluded that the trial court erred in

declaring a statute unconstitutional where the parties did not challenge the




10.
constitutionality of the statute. There, the court characterized the trial court’s decision as

a declaratory judgment, and reasoned that such a judgment was improper absent the

parties requesting declaratory relief.

         {¶ 26} As noted above, there was no controversy between the parties in this case

regarding the constitutionality of R.C. 2929.15(B)(1)(c)(ii). For this reason, we find that

the trial court erred in sua sponte declaring R.C. 2929.15(B)(1)(c)(ii) unconstitutional and

ignoring it at sentencing. Accordingly, we find appellant’s sole assignment of error well-

taken.

                                III. Limitations on Remand

         {¶ 27} Our determination that the trial court erred in sua sponte addressing the

constitutionality of R.C. 2929.15(B)(1)(c)(ii) requires us to remand this matter to the trial

court. On remand, the trial court is directed to make a R.C. 2929.15(B)(1)(c)(ii)

determination. Because the state did not raise the constitutionality of R.C.

2929.15(B)(1)(c)(ii) before the trial court at the violation hearing, that issue has been

waived and may not be raised on remand. See Gibson v. Meadow Gold Dairy, 88 Ohio

St.3d 201, 204, 724 N.E.2d 787 (2000) (concluding that party waived constitutional

arguments for purposes of appeal when party failed to raise those arguments during trial

court proceedings). Thus, the trial court’s role in making its R.C. 2929.15(B)(1)(c)(ii)

determination is to determine whether appellant’s conduct amounted to a technical




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violation or nontechnical violation under R.C. 2929.15(B)(1)(c)(ii).1 The trial court has

not yet made this determination, which it must do prior to imposing a sanction for

appellant’s violation of his community control.

                                     IV. Conclusion

       {¶ 28} In light of the foregoing, the judgment of the Wood County Court of

Common Pleas is hereby reversed. This matter is remanded to the trial court for a new

violation hearing at which the trial court shall consider whether appellant’s violation was

technical or nontechnical under R.C. 2929.15(B)(1)(c)(ii). The state is ordered to pay the

costs of this appeal pursuant to App.R. 24.


                                                                        Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




1
  Although the parties agreed below that the violation was technical, the trial court, in
exercising its duty to determine whether the violation fit the definition of a “technical
violation,” is not bound by the parties’ agreement. State v. Osley, 6th Dist. Lucas No.
L-17-1025, 2018-Ohio-437, ¶ 30 (finding that the trial court was not required to draw a
new venire simply because the state agreed that the jury had been tainted); State v.
O’Neal, 5th Dist. Fairfield Nos. 16-CA-35, 16-CA-37, 2017-Ohio-8755, ¶ 18 (finding
that state’s concession that appellant’s petition should be considered timely-filed was not
binding on the trial court).




12.
                                                              State v. Graham
                                                              C.A. No. WD-18-021




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Christine E. Mayle, P.J.
                                              _______________________________
Gene A. Zmuda, J.                                         JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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