[Cite as State v. Hines, 2020-Ohio-668.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                          No. 108457
                 v.                              :

SCORONE HINES,                                   :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED, DEFENDANT DISCHARGED
                 RELEASED AND JOURNALIZED: February 27, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-621299-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Carson Strang, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 David Martin King, Assistant Public Defender, for
                 appellant.


PATRICIA ANN BLACKMON, P.J.:

                   Defendant-appellant Scorone Hines appeals from his sentence for

attempted drug possession, a fifth-degree felony, arguing that the trial court

erroneously ordered that his sentence be served at a prison, rather than an
alternative sentencing center under R.C. 2929.34. Hines assigns the following two

errors for our review:


      I.     The trial court erred when it did not sentence appellant pursuant
             to R.C. 2929.34 in violation of the Fifth, Sixth and Fourteenth
             Amendments to the U.S. Constitution and Article I, Section 10 of
             the Ohio Constitution.

      II.    Defendant Scorone Hines was denied effective assistance of
             counsel in violation of the Sixth and Fourteenth Amendments to
             the U.S. Constitution and Article I, Section 10 of the Ohio
             Constitution.

              Having reviewed the record and the controlling case law, we reverse

the sentence and order Hines discharged.

               On September 25, 2017, Hines was indicted by an information for

one count of fourth-degree felony possession of heroin, and possession of criminal

tools (cell phone and money) with forfeiture specifications. On November 16, 2017,

the information was amended to charge Hines with attempted drug possession, a

fifth-degree felony. He pled guilty and also agreed to forfeit $740 and a cell phone.

The following month, Hines was sentenced to two years of community control

sanctions that was ordered to include random drug testing and intensive out-patient

drug and alcohol treatment. However, the court also ordered that violation of

community control may result in a one-year prison term.

              In October 2018, Hines was charged with violating the terms of his

community control sanctions, following his arrest and conviction for OVI. During

the hearing on the violation, Hines’s counsel asked for a lenient sentence with

driving privileges. The court noted Hines’s extensive criminal record, and that he
also tested positive for cocaine use three times in the previous two months. The

court also noted that twenty years earlier, Hines was convicted of aggravated

vehicular homicide. The court stated, “[o]ne is that it’s a violent offense, so that

means under T-CAP [Targeted Community Alternatives to Prison] law, he can go to

prison under this fifth degree felony.”

                      Sentence to Lorain Correctional Facility

              In the first assigned error, Hines argues that the trial court erred in

refusing to sentence him to a T-CAP facility rather than prison.

              R.C. 2929.34(B)(3)(c) states, in relevant part, as follows:

      [N]o person sentenced by the court of common pleas of a voluntary
      county to a prison term for a felony of the fifth degree shall serve the
      term in an institution under the control of the department of
      rehabilitation and correction. The person shall instead serve the
      sentence as a term of confinement in a facility of a type described in
      division (C) or (D) of this section.

              In turn, division (C) provides as follows:

      A person who is convicted of or pleads guilty to one or more
      misdemeanors and who is sentenced to a jail term or term of
      imprisonment pursuant to the conviction or convictions shall serve that
      term in a county, multicounty, municipal, municipal-county, or
      multicounty-municipal jail or workhouse; in a community alternative
      sentencing center or district community alternative sentencing center
      when authorized by section 307.932 of the Revised Code; or, if the
      misdemeanor or misdemeanors are not offenses of violence, in a
      minimum security jail.

              Therefore, when a defendant is sentenced to prison from certain

counties for certain fifth-degree felonies, the prison term will not be served in an

institution under ODRC’s control; instead, the sentence will be served locally,
usually in a county jail or community-based correctional facility. State v. Pope, 2d

Dist. Montgomery Nos. 28142 and 28143, 2019-Ohio-4100, ¶ 5. Cuyahoga County

is one of the “target” counties. R.C. 2929.34(B)(3)(d) sets forth certain exceptions

to the forgoing, and does not apply to sexual offenders, or defendants who have

previously been convicted of or pled guilty to an offense of violence as defined by

R.C. 2901.01(A)(9).

              The trial court stated that Hines was not eligible to go to a T-CAP

facility because of his prior conviction for aggravated vehicular homicide that the

court characterized as “an offense of violence.” However, Hines correctly notes that

his conviction for aggravated vehicular homicide in violation of R.C. 2903.06 is not

included within the statutory definition of “offenses of violence.”       See R.C.

2901.01(A)(9). See also State v. Lawrence, 180 Ohio App.3d 468, 2009-Ohio-33,

905 N.E.2d 1268 (8th Dist.). The state of Ohio agrees that the offense of violence

exception to T-CAP confinement is not applicable herein.

              The state asserts, however, that this case is not subject to the T-CAP

requirements because they went into effect after Hines was originally sentenced for

the fifth-degree felony, but before the community control violation hearing. See

H.B. 49. Hines asserts that he must be given the benefit of any reduction in penalty

at the time of the community control hearing, despite the fact that the T-CAP

requirements were not in effect at the time of the original sentence.
               R.C. 1.58 provides:

      If the penalty, forfeiture, or punishment for any offense is reduced by a
      reenactment or amendment of a statute, the penalty, forfeiture, or
      punishment, if not already imposed, shall be imposed according to the
      statute as amended.

               Moreover, “[f]ollowing a community control violation, the trial court

conducts a second sentencing hearing. At this second hearing, the court sentences

the offender anew and must comply with the relevant sentencing statutes.” State v.

Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, citing State v.

Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381. See also State v. Jackson,

150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 11 (holding that trial courts

are required to afford an offender an opportunity for allocution at a community-

control-revocation hearing, and rejecting state’s claim that allocution is not

necessary because “trial courts are imposing an already existing sentence”).

               Here, Hines was sentenced for the fifth-degree felony on December

14, 2017. He was ordered to serve two years of intensive community control, and

advised of a possible one-year sentence for violations. The T-CAP provisions of R.C.

2929.34 were enacted in H.B. 49. Pope, 2019-Ohio-4100, ¶ 5. They became effective

on July 1, 2018. In November 2018, the trial court sentenced Hines “anew” for the

community control violation, and ordered that he serve one-year imprisonment for

the community control violation. This sentence is subject to the T-CAP provisions

that were in effect at that time.
               Additionally, R.C. 2929.15(B) provides that if the court announces a

possible prison term during the sentencing hearing, the court may also impose that

term if the conditions of a community control sanction are violated. However,

effective September 29, 2017, R.C. 2929.15(B)(1)(c)(i) now sets forth this limitation:

      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
      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.

Id. See also State v. Neville, 2019-Ohio-151, 128 N.E.3d 937, ¶ 23 (8th Dist.).

               The Neville court observed that the legislature did not define the

term “technical” violation as used in R.C. 2929.15 and “did not draw a bright-line

rule” as to the meaning of this term. Id. at ¶ 41. The choice of the term “technical”

implies it has meaning distinct from “non-criminal” violations. State v. Mannah,

5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 14; State v. Nelson, 2018-Ohio-

4763, 124 N.E.3d 450, ¶ 32 (2d Dist.), appeal accepted, 2019-Ohio-5360, 2019 Ohio

LEXIS 2673. Thus, R.C. 2929.15(B)(1)(c)(i) specifically sets forth the ninety-day

sentence limitation for community control violations that are not felonies, if

community control was imposed for a felony.

                Here, although Hines pled to the OVI offense, it was a new criminal

offense that was not a felony. This meets the definition of a “technical” offense under

R.C. 2929.15(B)(1)(c)(i). Because no felony was committed, the term of

imprisonment cannot exceed 90 days. R.
              R.C. 2929.15(B)(1)(c)(i). Accord State v. Bika, 11th Dist. Portage Nos.

2018-P-0096, 2018-P-0097 and 2019-Ohio-3841, ¶ 34-44.

              Therefore, the one-year term of imprisonment imposed for the

community control violation is reversed. Furthermore, because Hines completed

the maximum 90-day term of imprisonment, he must be discharged.

              The second assigned error asserting ineffective assistance of counsel

is moot and will not be addressed. See App.R. 12(A)(1)(c).

              Judgment is reversed, defendant is discharged.

      It is ordered that appellant recover of appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


______________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR
