[Cite as State v. Monroe, 2020-Ohio-597.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-124
                                                  :
 v.                                               :   Trial Court Case No. 2017-CR-551
                                                  :
 DEON MONROE                                      :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 21st day of February, 2020.

                                             ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                            .............




FROELICH, J.
                                                                                           -2-


       {¶ 1} Deon Monroe appeals from a judgment of the Clark County Court of Common

Pleas, which found that he violated the terms of his community control, revoked his

community control sanctions, and ordered him to serve concurrent sentences totaling two

years in prison. For the following reasons, the trial court’s judgment will be affirmed in

part, reversed in part, and remanded for the limited purpose of the trial court’s entering a

revised judgment entry.

                           I. Factual and Procedural History

       {¶ 2} According to the bill of particulars and the facts stated at the plea hearing,

police officers conducted a traffic stop of a vehicle that Monroe was operating on August

13, 2017.   Upon receiving consent from the vehicle’s owner (Monroe’s girlfriend 1 ),

officers searched the vehicle and located a loaded black 9mm Hi Point Lugar under the

passenger seat where Monroe had been observed reaching when the officers pulled him

over. The handgun was tested and found to be operable. Monroe had a prior drug

conviction, which rendered him unable to carry a gun legally.

       {¶ 3} Monroe subsequently was indicted for carrying a concealed weapon, a

fourth-degree felony (Count One), improper handling of firearms in a motor vehicle, a

fourth-degree felony (Count Two), and having weapons while under disability, a third-

degree felony (Count Three). In April 2018, Monroe pled no contest to all charges; the

State agreed to a presentence investigation and to remain silent at sentencing. The trial

court found Monroe guilty and ordered a presentence investigation. Prior to sentencing,

defense counsel called a witness, who testified that she had placed the gun in Monroe’s



1 The bill of particulars states that the owner was Monroe’s wife, but other portions of
the record indicate that Monroe and the vehicle’s owner were not married.
                                                                                           -3-


“wife’s” vehicle and did not tell Monroe or his wife that it was there. At the conclusion of

the hearing, the trial court delayed disposition until June 5, 2018.

          {¶ 4} On June 5, 2018, the trial court sentenced Monroe to four years of community

control with intensive supervision. As part of the intensive supervision, Monroe was

required to (1) serve either 90 days in jail or 90 days on house arrest with electronic

monitoring, (2) refrain from the use of alcohol and drugs and not enter establishments

that serve alcohol, (3) be subject to random alcohol and drug screens, (4) complete 120

hours of community service, and (5) work with the Clark County reentry program to obtain

employment and get a GED. The court also ordered Monroe to pay a supervision fee

and court costs.

          {¶ 5} The court informed Monroe that one of his conditions of community control

would be compliance with all laws, so he could not drive without a license or insurance,

which Monroe had done several times previously. The court told Monroe that because

one of Monroe’s convictions was for a felony of the third degree, “I [the judge] don’t have

to worry about that being a technical or nontechnical violation. I can sentence you to

prison. If I find you are no longer amenable to community control, you will be sentenced

to prison for 18 months on Count 1; 18 months on Count 2, and 24 months on Count 3

* * *.”

          {¶ 6} The trial court issued a written judgment entry on June 8, 2018. Monroe did

not appeal from his convictions.

          {¶ 7} On August 21, 2018, Monroe’s probation officer filed an affidavit stating that

Monroe had violated the terms of his community control in three respects: (1) failing to

report to the probation department for scheduled office visits as directed, (2) submitting
                                                                                        -4-


fraudulent community service hours to the adult probation department, and (3) failing to

comply with “his GPS schedule as ordered.” At his preliminary hearing on the violations,

Monroe agreed that he had received notice of the alleged violations, denied the violations,

and waived a probable cause hearing.

        {¶ 8} Over two days, the trial court heard testimony from several witnesses

regarding the alleged violations. Stated generally, Robert Mims, Director of Re-Entry

Services at Clark County (OIC) Opportunities for Individual Change, testified about how

individuals are credited community service hours for participation in certain programs.

Mims signed documentation showing that Monroe had completed 120 hours of

community service for participation in the Opportunities for New Direction (OND) program

and also participated in a nutrition program.      Monroe had received certificates for

completing the two programs. However, Alice Fent, electronic monitoring officer for the

Clark County Common Pleas Court, testified that tracking data for Monroe showed him

at OIC for limited periods of time and substantially less than 120 hours.       Fent also

provided information that Monroe had gone to locations not authorized by the terms of his

electronic monitoring. Monroe’s probation officer, Jason Hunt, testified that Monroe had

indicated to him that he (Monroe) had completed his community service hours on site,

which was not substantiated by GPS data. Hunt further testified that Monroe’s GPS data

showed him “all over town” on August 15, 2018. In addition, Hunt testified that Monroe

failed to report to his probation officer on two occasions: June 27, 2018 and August 15,

2018.

        {¶ 9} The trial court found that Monroe had violated the terms of his community

control, and it imposed the previously-stated prison sentences, to be served concurrently
                                                                                          -5-


for a total of 24 months in prison. Monroe appeals from the revocation of his community

control.

         {¶ 10} Monroe’s original appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he found

“no error by the trial court prejudicial to the rights of appellant which may be argued to

this court on appeal.” Upon an initial review, we found several non-frivolous issues

related to the revocation of Monroe’s community control. We rejected the Anders brief

and appointed new counsel.

         {¶ 11} Monroe, with new counsel, now raises two assignments of error, which we

will address together:

         1. The trial court abused its discretion when it revoked the Appellant’s

         community control sanctions and sentenced the Appellant to two years in

         prison.

         2. The trial court imposed a sentence that is contrary to law pursuant to R.C.

         2953.08(G)(2) and R.C. 2929.15(B)(1)(c)(ii).

                            II. Violation of Community Control

         {¶ 12} Monroe first challenges the trial court’s conclusion that he violated the

conditions of his community control.

         {¶ 13} The right to continue on community control depends upon compliance with

the conditions of community control and is a matter within the sound discretion of the trial

court.     State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶ 11.

Accordingly, we review the trial court’s revocation of community control for an abuse of

discretion. State v. Morgan, 2d Dist. Montgomery No. 26132, 2014-Ohio-5071, ¶ 11.
                                                                                          -6-


An abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983); State v. Dalton, 2019-Ohio-4364, __ N.E.3d __, ¶ 11 (2d Dist.).

       {¶ 14} “[A] revocation of community control punishes the failure to comply with the

terms and conditions of community control, not the specific conduct that led to the

revocation.” State v. Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, ¶ 17.

Crim.R. 32.3, which governs revocation of community control, provides that the trial court

“shall not impose a prison term for violation of the conditions of a community control

sanction or revoke probation except after a hearing at which the defendant shall be

present and apprised of the grounds on which action is proposed.”

       {¶ 15} “Community control violation proceedings are not equivalent to criminal

prosecutions.” Black at ¶ 12. Nevertheless, “[a] defendant is entitled to certain due

process protections before a court may revoke community control sanctions, although the

full panoply of rights due a defendant in a criminal prosecution does not apply to the

revocation of community control.” State v. Harmon, 2d Dist. Champaign No. 2007-CA-

35, 2008-Ohio-6039, ¶ 6, citing Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593,

33 L.Ed.2d 484 (1972).       First, a defendant is entitled to a preliminary hearing to

determine whether there is probable cause to believe that the defendant has violated the

terms of his or her community control. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756,

36 L.Ed.2d 656 (1973); State v. Blakeman, 2d Dist. Montgomery No. 18983, 2002 WL

857659, *2.    Second, due process requires a final hearing to determine whether

community control should be revoked. Id.

       {¶ 16} At the final revocation hearing, the State must (1) provide the defendant
                                                                                          -7-


with written notice of the alleged violations of community control; (2) disclose the evidence

against the defendant; (3) give the defendant an opportunity to be heard in person and to

present witnesses and documentary evidence; (4) allow the defendant to confront and

cross-examine adverse witnesses; (5) afford the defendant a neutral and detached

hearing body; and, (6) provide the defendant with a written statement by the fact finder

as to the evidence relied upon and the reasons for revoking community control. State v.

Klosterman, 2d Dist. Darke Nos. 2015-CA-9 and 2015-CA-10, 2016-Ohio-232, ¶ 15; State

v. Gilreath, 2d Dist. Greene No. 2000-CA-1, 2000 WL 896319, *2 (July 7, 2000).

       A. Community Service Hours

       {¶ 17} First, the trial court concluded that Monroe violated community control by

submitting fraudulent community service hours to the adult probation department.

       {¶ 18} Robert Mims, Director of Re-Entry Services at Clark County OIC, testified

that individuals can complete community service hours through his program.              With

respect to Monroe specifically, his community services hours “were in line with his

Thinking for a Change and nutrition program.” The Thinking for a Change program is

held on Tuesdays and Thursdays from 9:30 a.m. to 11:30 a.m., and Monroe would have

needed to complete 60 hours to receive a completion certificate. Mims further stated

that the nutrition program ran for six weeks for 90 minutes on Wednesdays.

       {¶ 19} Monroe testified that OIC maintains a sign-in/sign-out sheet to keep track

of individuals’ presence. State’s Exhibit 1 reflected that Monroe was present for 6 hours

each on July 18-20, July 23-27, July 30-August 3, August 6-9, and August 13-15, for a

total of 120 hours (20 days x 6 hours). Each date was signed by Mims as supervisor.

       {¶ 20} Mims testified that Monroe would have been given homework for the
                                                                                           -8-


Thinking for a Change program, and the time spent on homework would have counted

toward his community service hours. Mims stated that homework was due at the next

scheduled class, and a person would be credited two and a half hours for each homework

assignment. Mims stated that if an individual missed a class, that person would be given

an out-of-class assignment to make up for the hours missed. Mims said that Monroe

would have needed to complete the program (16 lessons) in order to obtain a certificate.

Mims indicated that he verifies that participants complete all of their lessons by looking at

their coursework. Monroe obtained a certificate of completion for “Social Skills and Cog.

Self-Change T4C,” signed by Mims on August 15, 2018. (See Def.’s Ex. A.) Mims

testified that Monroe “did everything he’s supposed to do to obtain the certificate. If not,

he wouldn’t have gotten it.”

       {¶ 21} Mims testified that the nutrition program was run by an Ohio State University

extension program, and that the instructor kept attendance. Individuals were required to

attend and participate on a consistent basis in order to obtain a certificate; if a student

missed a class, he or she had to come back and make up the class when the classes

restarted. Monroe obtained a certificate, dated September 5, 2018, indicating that he

had successfully completed the nutrition program. (See Def.’s Ex. B.)

       {¶ 22} Upon reviewing State’s Exhibit 1, the trial court questioned Mims about

Monroe’s presence on site. When asked, “So this exhibit would indicate that [Monroe]

was at your building for six hours a day,” Mims responded, “Yes, sir. Yes, sir.” Mims

stated that hours are 8:30 a.m. to 2:30 p.m., and individuals are given credit for their hour-

long lunch period. Mims later clarified that State Exhibit 1 also included times for which

Monroe received credit for doing homework assignments off-site, and that the document
                                                                                       -9-


did not identify which dates he was actually there versus given credit for homework.

Mims also later clarified that “[w]e don’t given them two and a half hours credit for

homework.     We give them an opportunity to make up the six hours by doing the

homework. * * * We give them six hours so that we keep straight on how many hours they

are doing. We can’t do two and a half --.” When questioned by the trial court why

individuals were given credit for six hours when they were only doing two and a half hours

of homework, Mims responded, “* * * Then we will change that.”

       {¶ 23} Alice Fent, the electronic monitoring officer for the Clark County common

pleas court, testified that she is able to retrieve data regarding the whereabouts of a

particular GPS unit “24/7, 365 days a year.” She further stated that the data is accurate,

and it can locate a person within five and a half feet of the person’s location.

       {¶ 24} Fent generated GPS location reports showing Monroe’s location between

July 18, 2018 and August 16, 2018 (State’s Ex. 2). The reports indicated that Monroe

was present at 98 North Bechtle Avenue, the location of Mims’s OIC program, for the

following periods of time:

                Date                           Total time

                July 18, 2018 (Wed)            2 hours, 28 minutes

                July 24, 2018 (Tues)           1 hour, 7 minutes

                July 25, 2018 (Wed)            59 minutes

                August 1, 2018 (Wed)           28 minutes

                August 14, 2018 (Tues)         13 minutes

                August 15, 2018 (Wed)          1 hour, 15 minutes

                TOTAL TIME:                    7.166 hours
                                                                                        -10-


      {¶ 25} Defense counsel cross-examined Fent about the accuracy of the data.

Fent acknowledged that, for several different dates, the departure time for one address

(such as his Woodside address) and the arrival time at the next address (such as a

Bellevue address) were the same. (Tr. at 56-57.) However, at the second day of the

hearing, Fent explained that the GPS signal can “float,” and “[i]t didn’t mean that he left

the home and went to a Bellevue address. He didn’t go there.” (Nov. 20 Tr. at 6.)

      {¶ 26} Monroe’s probation officer, Jason Hunt, testified that on August 16, 2018,

Monroe submitted documentation that he had completed his community service

requirement. Hunt stated that he was suspicious about the documentation, because

Hunt was only permitted to be out from 9:00 a.m. to 12:00 p.m., but the document showed

six hours of community service per day. Hunt asked the GPS monitor coordinator to see

how often Monroe was at 98 North Bechtle and learned that there was a discrepancy

between the hours reported and Monroe’s locations.

      {¶ 27} Hunt testified that Monroe did not say that he was doing homework for

community service hours. Rather, Monroe told Hunt that he had gone to the Bechtle

location to complete his hours. Based on the GPS data, Hunt concluded that Monroe

had submitted fraudulent community service hours.           On cross-examination, Hunt

testified that he left to Mims what would constitute community service; “that’s not for the

probation department.” (Nov. 20 Tr. at 23.)

      {¶ 28} In concluding that Monroe violated his community service requirement, the

court explained:

             * * * GPS would indicate he never spent any real time there based

      on the testimony of Mr. Mims as to how long those classes are supposed to
                                                                                        -11-


      last. Mr. Mims says, “I wouldn’t have signed these documents if he hadn’t

      done it.” Well, that’s obviously not true. He must be relying on somebody

      else telling him he was there because he wasn’t there.

             Now, am I gonna fault the defendant for getting six hours of

      community service for homework he didn’t do? I’m not gonna fault him.

      I’m not gonna credit him of it. That’s a farce. We don’t send somebody

      down to OIC to work for OIC. They get grant money to help people, not

      having people work for them. And in the case of GPS, he was never really

      there that long anyway.

      {¶ 29} The trial court reasonably concluded that Monroe was present at OIC for

substantially less than 120 hours and that he was credited for community services hours

that he did not actually perform. Specifically, GPS data placed him at OIC’s Bechtle

address for approximately 7.2 hours only, and Mims testified that participants can receive

credit for attending six hours of classes by completing approximately 2.5 hours of

homework. The attendance log did not distinguish between hours when the participant

was actually present at OIC and hours credited for homework completed elsewhere.

      {¶ 30} Nevertheless, because Mims’s program allowed for community service

credit to be awarded even if a participant missed a class on-site, Monroe’s limited time at

OIC did not necessarily indicate his failure to comply with the terms of the community

service program. Significantly, Monroe submitted evidence that he had completed the

Thinking for a Change program and the Ohio State University Extension nutrition program

and that he was credited with 120 hours of community service by Mims, the OIC director.

Mims’s testimony and Monroe’s exhibits indicate that Monroe had completed the
                                                                                           -12-


programs to Mims’s and the nutrition instructor’s satisfaction, even if not to the satisfaction

of the trial court or the probation department.

       {¶ 31} The trial court’s frustration with OIC’s method of awarding community

services hours is understandable and justified. However, in our view, Monroe cannot be

penalized for failing to meet his community service requirements when he was sent to a

specific program and that community service program’s director has testified that Monroe

completed his community service to the program’s satisfaction and has provided Monroe

certificates of completion for the programs. In the absence of evidence that Monroe

acted outside of OIC’s expectations, the fault, if any, lies with OIC, not with Monroe.

Accordingly, under the specific facts of this case, the trial court abused its discretion in

concluding that Monroe violated his community control sanctions by failing to complete

his community service requirement.

       B. GPS Compliance

       {¶ 32} Second, the trial court concluded that Monroe failed to comply with his

community control sanctions by failing to comply with “his GPS schedule as ordered.”

       {¶ 33} Fent testified that she placed a GPS monitor on Monroe’s ankle on July 3,

2018, and his probation officer provided her with Monroe’s schedule. Based on that

schedule, Monroe was permitted to leave his home to go to OIC to attend classes on

Monday through Friday (9:00 a.m. to noon), and on Wednesdays when he would go see

his probation officer at 3:30 p.m.

       {¶ 34} As stated above, Hunt became suspicious that Monroe was not complying

with his GPS requirements based on Monroe’s reported community service hours. After

reviewing GPS reports generated by Fent, Hunt concluded that Monroe had failed to
                                                                                         -13-


comply with his GPS schedule. Specifically, Hunt testified that the GPS data for August

15, 2018, showed that Monroe “left 98 North Bechtle and did not return home for close to

an hour; and when I had that report ran, it showed that he was all over town that day

before he returned home.” The GPS report indicated that Monroe was not at the Bechtle

location or at his home between 11:18 a.m. and 12:03 p.m.; no stationary location was

indicated.   Hunt testified that Monroe admitted that he (Monroe) did not follow the

electronic monitoring instructions; Monroe had told Hunt that he had stopped at his

sister’s home.

       {¶ 35} The trial court found Monroe violated the terms of his GPS, stating:

       I’ve got him going in one exhibit driving around town for a while. Looks like

       it takes anywhere from 9 to 12 minutes to get from his house to Bechtle

       Avenue and it took 46 minutes to get to his home, and he was driving around

       town.     Was he allowed to go to his daughter’s doctor appointments?

       Maybe he was, but I have no evidence that that’s where he went at any of

       this time. * * *

The trial court did not abuse its discretion in reaching this conclusion.

       C. Missed Probation Department Meetings

       {¶ 36} Third, the trial court found that Monroe violated his community control by

failing to report to the probation department for scheduled office visits as directed.

       {¶ 37} Hunt testified that Monroe was placed on community control on June 5,

2018, and that he was required to report to his probation officer weekly. Hunt stated that

Monroe failed to report on two occasions: June 27, 2018 and August 15, 2018. (GPS

location data confirmed that Monroe went to see his probation officer on July 25 and on
                                                                                          -14-


August 8, 2018.) Hunt testified that he would not have given Monroe permission to miss

the July 27 office visit, because he had not yet tested clean. After Monroe missed the

August 15 appointment, Hunt called him and told him to be at his (Hunt’s) office the

following day; Monroe reported to the probation department on August 16. Monroe

reported to Hunt that he thought that he was supposed to report every other week.

       {¶ 38} Based on Hunt’s testimony that Monroe failed to report on two occasions,

the trial court did not abuse its discretion in concluding that Monroe failed to report to the

probation department for scheduled office visits as directed.

                             III. Monroe’s Prison Sentences

       {¶ 39} Monroe further claims that the trial court erred in revoking his community

control and imposing 24 months in prison. He further raises that the court erred in

ordering him to serve 18-month sentences for technical violations of his community

control for his fourth-degree felonies.

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

when an offender violates community control.2 Upon revoking a defendant’s community

control, the trial court may (1) lengthen the term of the community control sanction;

(2) impose a more restrictive community control sanction; or (3) impose a prison term on

the offender, subject to certain limitations. R.C. 2929.15(B)(1), (3); see State v. Brooks,

103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, paragraph two of the syllabus.

       {¶ 41} For all revocations, the prison term must be within the range of prison terms

available for the offense for which community control had been imposed and the term


2
  R.C. 2929.15 has been amended several times in the past few years, with the most
recent version effective October 17, 2019. For purposes of this appeal, we apply the
version in effect between September 29, 2017 and October 28, 2018.
                                                                                        -15-


may not exceed the prison term specified in the notice provided to the offender at the

original sentencing hearing. R.C. 2929.15(B)(3). Of relevance here, R.C. 2929.15(B)

further provides:

       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.

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

       {¶ 42} A violation of community control need not be a criminal offense to be a non-

technical violation of community control. State v. Nelson, 2018-Ohio-4763, 124 N.E.3d

450 (2d Dist.) (defendant’s contact with person with whom he was to have no contact,

although non-criminal in nature, was not a technical violation), appeal accepted,

04/03/2019 Case Announcements, 2019-Ohio-1205; see also State v. Kernall, 2019-

Ohio-3070, 132 N.E.3d 758, ¶ 16 (1st Dist.). We have found instructive the Twelfth

District’s distinction between administrative requirements facilitating community control

(technical) from substantive rehabilitative requirements that address a significant factor

contributing to a person’s criminal conduct (non-technical). Id. at 32, citing State v.

Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 17-18; see also, e.g.,

Kernall at ¶ 18.

       {¶ 43} It is undisputed that R.C. 2929.15(B)(1)(c) did not apply to Monroe’s offense

of having weapons while under disability, a third-degree felony. The trial court was
                                                                                         -16-


permitted to impose a 24-month sentence for the third-degree felony, and it was not

required to determine whether the violations involved were technical or non-technical.

      {¶ 44} Prior to the court’s imposition of sentence on the community control

violations, the prosecutor informed the trial court that the probation officer searched

Monroe’s home in October 2017 and found “digital scales, a glass smoking pipe with

marijuana residue or suspected marijuana residue, and a large bag of green leafy matter

in the house as well as quite a bit of currency.” Monroe also tested positive for cocaine

at that time. The prosecutor stated that she did not anticipate that the conduct would

result in new charges. Defense counsel objected to the court’s consideration of this

information, as it was not related to Monroe’s alleged community control violations.

      {¶ 45} The court reviewed the previously-prepared presentence investigation

report and spoke with Monroe.      Monroe stated that Mims gave him permission to

complete community service work at home and that his probation officer gave him

permission to take his daughter to doctor appointments, to pick up his daughter on

Sundays, and to go to a family reunion. Monroe stated that he failed his drug screens

because was sick and “taking medication that I shouldn’t have been that wasn’t mines

[sic].” Monroe further asserted that Hunt had changed his reporting requirement to every

other week and then Hunt had “tried to say” that he switched it back to every week.

Monroe said that the money and drugs and scales found at his home belonged to his

girlfriend, with whom he lived. Monroe repeatedly stated that he was trying to comply

with his community control requirements, and he told the court that he had completed

additional programs in jail since his arrest. Monroe acknowledged that he did not have

a valid driver’s license, although he apparently had been driving while on community
                                                                                         -17-


control.

       {¶ 46} The trial court concluded that Monroe was no longer amenable to

community control and imposed 24 months in prison for the third-degree felony.

Regardless of whether the violations of community control appear to be minor, the

revocation of community control punishes the failure to comply with community control,

not the specific conduct leading to the revocation. See, e.g., State v. Shumway, 2d Dist.

Greene No. 2017-CA-51, 2018-Ohio-1227, ¶ 12.             Accordingly, a prison sentence

imposed upon revocation of community control is a “continuing consequence of the

original conviction.” Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, at ¶ 13,

citing, e.g., State v. Wellbaum, 2d Dist. Champaign No. 2000-CA-5, 2000 WL 1232773

(Sept. 1, 2000). While other courts may or may not have revoked Monroe’s community

control based on the conduct presented, the trial court here did not abuse its discretion in

revoking Monroe’s community control. Moreover, we cannot conclude that the court’s

24-month sentence was clearly and convincingly unsupported by the record or contrary

to law. See State v. Von Ward, 2d Dist. Champaign No. 2015-CA-42, 2016-Ohio-5733

(applying the Marcum standard of review to defendant’s sentence for a community control

violation).

       {¶ 47} However, we disagree with the trial court’s conclusion that the presence of

the third-degree felony removed the limitations imposed by R.C. 2929.15(B)(1)(c)(ii) for

Monroe’s felonies of the fourth degree.      Under Ohio law, a sentencing court “must

consider each offense individually and impose a separate sentence for each offense.”

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9 (rejecting a

sentence packaging approach to sentencing). And while R.C. 2929.15(B)(1)(c) is written
                                                                                        -18-


in the singular, “[t]he Ohio Supreme Court has cautioned against ‘making fine distinctions

about the meaning of a statute based upon its use of the singular form of a word.’ ” State

v. Bishop, 2019-Ohio-592, 132 N.E.3d 145, ¶ 14 (12th Dist.), quoting State v. D.B., 150

Ohio St. 3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 16 (R.C. 2929.15(B)(1)(c) applies

to a defendant on community control for multiple felonies of the fifth degree). Nothing in

the language of R.C. 2929.15(B)(1)(c) implies that the provisions do not apply simply

because a defendant is serving community control for multiple felonies of different

degrees. Upon revoking a defendant’s community control for multiple counts, the trial

court must consider each count separately, including the statutory limitations appropriate

for each count, when determining the appropriate sentences.

       {¶ 48} In this case, Monroe committed two technical violations of his community

control. On one day, contrary to the terms of his GPS schedule, Monroe did not return

directly home from his community service location on Bechtle Avenue, taking just under

an hour to return home. Monroe admitted to his probation officer that he had stopped at

his sister’s residence, although GPS data did not confirm that. There is no indication that

Monroe engaged in wrong-doing during that short time period.          In addition, Monroe

missed two scheduled appointments with his probation officer; after the second missed

appointment, Monroe reported the following day at the instruction of his probation officer.

While the trial court was within its discretion to revoke Monroe’s community control for

failure to comply with these conditions, the trial court’s prison sentences on Monroe’s two

fourth-degree felony offenses were limited to 180 days in prison.3


3 We recognize that the modification of Monroe’s sentences for his fourth-degree felonies
is largely academic. Because the trial court imposed a concurrent 24-month sentence
for having weapons while under disability, Monroe’s aggregate sentence of 24 months
                                                                                       -19-


       {¶ 49} Monroe’s assignments of error are overruled in part and sustained in part.

                                     IV. Conclusion

       {¶ 50} The trial court judgment with respect to Monroe’s conviction for having

weapons while under disability will be affirmed. The portion of the trial court’s judgment

imposing 18-month sentences for carrying a concealed weapon and improper handling

of firearms in a motor vehicle will be reversed; the sentences for those offenses will be

modified to 180 days in prison, and the matter will be remanded for limited purposes of

issuing a revised judgment entry consistent with our judgment herein and of notifying the

appropriate prison officials of that revised judgment entry.

                                     .............



TUCKER, P.J. and DONOVAN, J., concur.


Copies sent to:

John M. Lintz
Travis Kane
Hon. Richard J. O’Neill




remains the same.
