STATE OF OHIO v. ANGELA ABNER

In Adams Cty. C.P. Case No. CR2012-93, Angela Abner pleaded guilty to

trafficking in heroin, and the Adams County Court of Common Pleas sentenced her to

two years of community control. In Adams County C.P. Case No. CR2012-156, Abner

pleaded guilty to two counts of felony theft, and the trial court imposed the same two-year

community control sentences for these offenses.

{¶4} She violated the conditions of her community control in the cases, including

requirements that she: (1) report once a month to the probation officer; (2) not use illegal

drugs; (3) pay court costs and fees; and (4) complete community service, obtain her

GED, complete a recovery program, and pay restitution. The state filed a motion to

revoke Abner’s community control, and the trial court held a hearing on the motion.

{¶5} At the hearing on the state’s motion, Joyce DeMint, Abner’s supervising

probation officer, testified that Abner violated the aforementioned conditions of her

community control.1 DeMint testified that Abner violated the community-control condition

that she not use illegal drugs by admitting to using heroin and testing positive for it in

October 2013. Abner also gave a statement to DeMint that she had used heroin three

times since October 2012. At the hearing Abner admitted she had relapsed in October

2013, when she had a positive drug test.

1 “Community control sanctions are the current alternative to probation, and may include probation as community control sanction.” State v. Amos, 4th Dist. Gallia No. 15CA5, 2016-Ohio-917, fn. 1, citing Katz & Giannelli, Criminal Law, Section 123:7 (3d Ed.2009).

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{¶6} In Case No. CR2012-93 the trial court determined that Abner violated the

terms of her community control, revoked it, and sentenced her to the stated prison term

for the underlying crime of trafficking in heroin of 12 months.

{¶7} In Case No. CR2012-156 the trial court found that Abner violated the terms

of her community control, revoked it, and sentenced her to the stated prison terms of nine

months for each of the underlying felony theft offenses. The court ordered that Abner

serve these terms concurrent to each other, but consecutive to her term in Case No.

CR2012-93, which resulted in an aggregate 21-month prison term.

{¶8} We consolidated these appeals for briefing and decision.

II. ASSIGNMENT OF ERROR

{¶9} Abner assigns the following error for our review:

THE TRIAL COURT ERRED WHEN IT IMPOSED A CONTRARY-TO-LAW SENTENCE UPON ANGELA ABNER. III. STANDARD OF REVIEW

{¶10} When reviewing felony sentences we apply the standard of review set forth

in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 22. Under R.C. 2953.08(G)(2) an appellate court may reverse a

sentence if it clearly and convincingly finds either that the record does not support the

sentencing court's findings as required by specified statutes or that the sentence is

otherwise contrary to law. See State v. Mullins, 4th Dist. Scioto No. 15CA3716, 2016

Ohio-5486, ¶ 25.

IV. LAW AND ANALYSIS

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{¶11} Abner asserts that the trial court’s 21-month aggregate prison sentence is

clearly and convincingly contrary to law because it exceeds the 90-day cap for technical

violations of community-control sanctions under R.C. 2929.15(B)(1)(c)(i), which provides:

If the conditions of a community control sanction are violated * * *, the sentencing court may impose upon the violator one or more of the following penalties: * * *



(c) A prison term on the offender pursuant to section 2929.14 of the Revised Code and division (B)(3) of this section, provided that a prison term imposed under this division is subject to the following limitations, as applicable:



(i) 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.



(Emphasis added.)

{¶12} Abner argues that all of the violations of community control that she

committed constituted technical violations. “Technical violation” is not defined in R.C.

2929.15(B)(1), but in State ex rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St.3d 121,

124, 609 N.E.2d 546 (1993), the Supreme Court of Ohio adopted the definition of

“technical violation” for comparable parole-revocation proceedings adopted by the United

States Court of Appeals for the Sixth Circuit in Inmates Councilmatic Voice v. Rogers,

541 F.2d 633 (6th Cir.1976). Accordingly technical violations means those violations of

the terms and conditions of parole that are not criminal in nature:

Petitioner also invokes the sixty-day rule mentioned in a January 21, 1992 contempt order in the Inmates' Councilmatic Voice case. Inmates' Councilmatic Voice v. Wilkinson (Jan. 21, 1992), N.D.Ohio No. C72-1052, unreported. The order does require certain parole revocation hearings to be held within sixty days after the date on which the parolee is arrested or held by means of a detainer. However, it plainly states that “[t]he sixty-day rule is

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applicable to all Ohio parolees charged by Defendants with a technical violation of a term or condition of their parole.” (Emphasis added.) Id. at 2. In Inmates' Councilmatic Voice, supra, 541 F.2d at 635, fn. 2, the Sixth Circuit Court of Appeals defined “technical violations” as “those violations of the terms and conditions of the parole agreement which are not criminal in nature[,] such as failure to report to the parole officer, association with known criminals, leaving employment, leaving the State, etc.”



{¶13} Courts of appeals have applied this definition of technical violation for

purposes of determining the applicability of the sentencing caps in R.C. 2929.15 in

community-control revocation cases. See State v. Cozzone, 2018-Ohio-2249, __ N.E.3d

__, ¶ 38 (11th Dist.); State v. Pino, 11th Dist. Lake No. 2017-L-171, 2018-Ohio-2825, ¶ 6;

compare State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 16-18

(citing Cozzone, but ultimately applying a narrower definition of “technical violation” by

holding that the violation of a special, non-criminal condition that constituted a

substantive rehabilitative requirement was not a technical violation). Consistent with

Cozzone and Pino, which we find to be persuasive, we hold that a technical violation of

community control for purposes of R.C. 2929.15(B) is a violation that is not criminal in

nature.

{¶14} Abner argues that because she was never charged with a new crime like

possession of heroin for her positive test for heroin, it constituted a technical violation,

which along with her other technical violations of community control, required a 90-day

cap for her prison sentence under R.C. 2929.15(B)(1)(c)(i). In Cozzone at ¶ 5, 39, the

court rejected a similar argument. There the defendant violated her community-control

condition that she not test positive for opiates by overdosing on heroin. The court

concluded the violation was criminal in nature and could not be considered a technical

violation of the terms of her community control:

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Here, appellant violated the terms of her community control when she overdosed on heroin. Although appellant was not charged or convicted for this conduct, overdosing on drugs is criminal in nature and cannot be considered a “technical” violation of the terms and conditions of community control. Accordingly, appellant's argument is not well taken. {¶15} Although Abner was not charged or convicted for felony possession of

heroin, her admitted use of heroin constituted a crime rather than a mere technical

violation of community control. See R.C. 2925.11(A) and (C)(6)(a) (making the knowing

use or possession of heroin in even a trace amount a fifth-degree felony). Her additional

contention that it is conceivable that one could ingest heroin without ever possessing it is

belied by the evidence introduced in this case, including Abner’s admission that she used

heroin because she relapsed, not due to any inadvertent action by someone else. This is

different than Pino at ¶ 6, where the defendant violated a community-control condition

that he not use alcohol because “drinking alcohol is not per se criminal in Ohio.” By

contrast, the knowing possession or use of heroin is per se criminal in Ohio and it

constitutes a felony offense.

{¶16} Because Abner’s use of heroin constituted a felony criminal offense, it did

not constitute a technical violation, and the trial court was not constrained by R.C.

2929.15(B)(1)(c)(i) to cap her prison sentence at 90 days. Therefore, she did not meet

her burden to establish by clear and convincing evidence that her sentence was contrary

to law. We overrule her assignment of error and affirm her sentence.

Having overruled Abner’s assignment of error, we affirm her sentence.