State v. Crose

2023 Ohio 880

• Court: Ohio Court of Appeals
• Decided: March 20, 2023
• Docket: 3-22-34
• Status: Published

Opinion

[Cite as State v. Crose, 2023-Ohio-880.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 3-22-34

v.

CANDICE CROSE, OPINION

DEFENDANT-APPELLANT.

Appeal from Crawford County Common Pleas Court Trial Court No. 19-CR-0446

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: March 20, 2023

APPEARANCES:

Christopher Bazeley for Appellant

Bailey Higgins for Appellee Case No. 3-22-34

ZIMMERMAN, J.

{¶1} Defendant-appellant, Candice Crose (“Crose”), appeals the September

7, 2022 judgment entry of the Crawford County Common Pleas Court’s

determination that Crose’s community-control violation constitutes a non-technical

violation and the imposition of a 6-month reserved-prison term consecutively to

Crose’s sentence imposed in Richland County. For the reasons that follow, we

affirm in part and reverse in part.

{¶2} On October 29, 2019, the Crawford County Grand Jury indicted Crose

for Identity fraud in violation of R.C. 2913.49(B)(1), a fifth-degree felony. Crose

appeared for arraignment on December 2, 2019 and entered a not-guilty plea.1

{¶3} On July 1, 2020, Crose entered a guilty plea to the indictment pursuant

to a negotiated-plea agreement. Importantly, the negotiated-plea agreement

contained a joint-sentencing recommendation. Specifically, Crose and the State

agreed to recommend that the trial court order a five-year term of community

control. Further, the parties agreed to waive the preparation of a presentence

investigation report prior to sentencing. Thereafter, the trial court convened a

sentencing hearing wherein the trial court followed the parties’ joint-sentencing

recommendation in its entirety. Further, the trial judge reserved a 12-month prison

1 Crose was a resident in a halfway house in Richland County at the time she became aware that a warrant for her arrest had been issued on the indictment in Crawford County.

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term in the event that Crose violated the terms and conditions of her community-

control sanctions.

{¶4} The trial court in Richland County judicially released Crose from prison

on February 4, 2021. However, on February 23, 2021, a bench warrant was issued

for Crose’s arrest by Crawford County because she failed to report to her probation

officer upon her judicial release from prison. After Crose was arrested on a bench

warrant, her probation officer in Crawford County filed a notice of violation in the

trial court seeking to revoke her community control based upon the failure to timely

report after her release from prison.

{¶5} On September 6, 2022, the trial court held a community-control-

revocation hearing. The trial court found that Crose violated community control

and determined that the violation was a non-technical violation. Thereafter, the trial

court revoked Crose’s community control and sentenced her to a 6-month prison

term to run consecutive to the sentence imposed by Richland County in case number

2019CR781. At the time that Crose was sentenced in Crawford County, she was

already serving prison terms in her Richland County case.

{¶6} Crose filed a timely appeal from this judgment and raises two

assignments of error for our review that we will review separately.2

2 On October 21, 2022, Crose requested that we stay the briefing schedule in the instant appeal pending the outcome of State v. Jones, ___Ohio St.3d___, 2022-Ohio-4485; however, we denied her request on November 2, 2022. The Supreme Court of Ohio’s holding in Jones speaks directly to Crose’s second assignment of error, which we will address more fully and specifically under that assignment of error.

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Assignment of Error I

The Trial Court Erred When It Found That Crose’s Community Control Violation Was A Non-Technical Violation Under R.C. 2929.15.

{¶7} In her first assignment of error, Crose argues that the trial court erred

by finding her violation of community-control sanctions to be a non-technical

violation (i.e., absconding). Specifically, Crose asserts that her violation is a

technical violation, which subjects the trial court to a sentencing cap for a fifth-

degree felony under R.C. 2929.15(B)(1)(c)(i), thereby rendering the trial courts

sentence of a 6-month prison term contrary to law.3

Standard of Review

{¶8} The decision of a trial court finding a community-control violation will

not be disturbed absent an abuse of discretion. State v. McKeithen, 3d Dist. Marion

No. 9-08-29, 2009-Ohio-84, ¶ 7, citing State v. Ryan, 3d Dist. Auglaize No. 14-06-

55, 2007-Ohio-4743, ¶ 7; State v. Espinoza, 3d Dist. Allen No. 1-21-48, 2022-Ohio-

1807, ¶ 17. An abuse of discretion suggests that a decision is unreasonable,

arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

Analysis

{¶9} Here, the trial court found that Crose violated Crawford County

condition number five

3 If the trial court was subjected to the sentencing cap then Crose’s prison term could not exceed 90 days or the remaining period of the reserved prison sentence if it is less than 90 days. See R.C. 2929.15(B)(1)(c)(i).

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‘I will follow all orders verbal or written given to me by my supervising officer or other authorized representatives of the Court or the Department of Rehabilitation and Correction * * *’. To Wit:

February 5th, 2021 [Crose] failed to report in person to [her] Supervising Officer upon her release from Richland County Jail on February 4th, 2021. [Crose’s] whereabouts were unknown and a warrant was issued for [her] arrest. On July 1st, 2020 [Crose] signed an Offender Notify form acknowledging that [she was] aware that [she was] required to report in person to the Crawford County Adult Probation on the following business day upon [her] release from custody.

(Doc. No. 26).

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

court when an offender violates community control. In 2017, the General Assembly

amended R.C. 2929.15(B) to place limitations on prison terms imposed for

violations of a community control sanction for certain fourth or fifth degree felonies.

See 2017 H.B. 49. R.C. 2929.15(B) provides in its pertinent parts:

(B)(1) If the conditions of a community control sanction imposed for a felony are violated or if the offender violates a law or leaves the state without the permission of the court or the offender’s probation officer, the sentencing court may impose on the violator one or more of the following penalties:

(a) A longer time under the same sanction if the total time under the sanctions does not exceed the five-year limit specified in division (A) of this section;

(b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised Code, including but not limited to, a new term in a community-based correctional facility, halfway house, or jail pursuant to division (A)(6) of section 2929.16 of the Revised Code;

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(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 and rules, 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, the prison term shall not exceed ninety days, provided that if the remaining period of community control at the time of the violation or the remaining period of the reserved prison sentence at that time is less than ninety days, the prison term shall not exceed the length of the remaining period of community control or the remaining period of the reserved prison sentence. If the court imposes a prison term as described in this division, division (B)(2)(b) of this section applies.

* * *.

(Emphasis added.) R.C. 2929.15(B)(1)(a)-(c).

{¶11} In State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, the Supreme

Court of Ohio defined a violation of a community-control sanction as a

“nontechnical violation” if, considering the totality of the circumstances,

the violation concerns a condition of community control that was “specifically tailored to address” matters related to the defendant’s misconduct or if it can be deemed a “substantive rehabilitative requirement which addressed a significant factor contributing to” the defendant's misconduct.

Id. at ¶ 26, citing State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-

2672, ¶ 17-18.

{¶12} A violation is technical when the condition violated is akin to “an

administrative requirement facilitating community control supervision.” Nelson at

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¶ 26, citing Davis at ¶ 18. “There is no single factor that determines whether a

violation is technical or nontechnical.” Nelson at ¶ 26. “[T]he statute allows the

trial court to engage in a practical assessment of the case before it, i.e., to consider

the nature of the community-control condition at issue and the manner in which it

was violated, as well as any other relevant circumstances in the case” before

determining whether a violation is technical or nontechnical in nature. 4 Id.

Significantly, following the Supreme Court’s release of Nelson, the General

Assembly amended R.C. 2929.15 (on April 12, 2021) to define a “technical

violation” under the statute. See 2020 H.B. 1. Nonetheless, the holding in Nelson

remains instructive herein. R.C. 2929.15(E) now defines a “technical violation” to

mean:

a violation of the conditions of a community control sanction imposed for a felony of the fifth degree, * * * that is not an offense of violence and is not a sexually oriented offense, and to which neither of the following applies:

(1) The violation consists of a new criminal offense that is a felony or that is a misdemeanor other than a minor misdemeanor, and the violation is committed while under the community control sanction.

(2) The violation consists of or includes the offender’s articulated or demonstrated refusal to participate in the community control sanction imposed on the offender or any of its conditions, and the refusal demonstrates to the court that the offender has abandoned the objects of the community control sanction or condition.

4 Notably, Nelson was decided on July 15, 2020 and after Crose’s change-of-plea and sentencing hearings on July 1, 2020.

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(Emphasis added.) R.C. 2929.15(E)(1)-(2).

{¶13} Here, there simply is no dispute that it was Crose’s responsibility to

contact her Crawford County probation officer (Clay) upon her judicial release.

(See State’s Ex. 1). Moreover, there is no dispute that Clay’s only contact with

Crose occurred approximately three weeks after her release from the Richland

County Jail and upon her apprehension on a bench warrant. Thus, Crose’s failure

to contact Clay was a failure to make herself available for supervision entirely. (See

Sept. 6, 2022 Tr. at 32) (“I found that the State has proven by a preponderance of

the evidence it’s a violation by nonreporting, in other words, absconding from

supervision.”) To us, Crose’s lack of compliance supports the trial court’s

determination that Crose had absconded, a non-technical violation of her

community-control sanctions. See R.C. 2929.15(E)(2).

{¶14} Hence, we conclude that the trial court did not err by determining that

Crose’s violation of a condition of her community-control sanctions was a non-

technical violation.

{¶15} Accordingly, Crose’s first assignment of error is overruled.

Assignment of Error II

The Trial Court Failed To Advise Crose Of The Possibility Of Consecutive Sentences For A Community Control Violation At Her Original Sentencing.

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{¶16} In her second assignment of error, Crose argues that the trial court

erred by ordering that the 6-month prison term in Crawford County be served

consecutively to the sentence imposed by Richland County in case number

2019CR781. Specifically, Crose asserts that the trial court failed to notify her that

she could be ordered to serve her 12-month reserved-prison term for a community-

control violation consecutively to her existing Richland County sentence (at her

Crawford County sentencing hearing held on July 1, 2020).

{¶17} R.C. 2953.08 provides specific grounds for a defendant to appeal a

felony sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 10.

Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence “only if it

determines by clear and convincing evidence that the record does not support the

trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear

and convincing evidence is that “‘which will produce in the mind of the trier of facts

a firm belief or conviction as to the facts sought to be established.’” Id. at ¶ 22,

quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶18} The record reveals that the trial court and the State were aware when

Crose entered her guilty plea (in Crawford County on July 1, 2020) that she (Crose)

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was serving stated-prison terms ordered by Richland County. When the Crawford

County trial court accepted Crose’s plea and then sentenced her to a five-year term

of community-control sanctions with a 12-month reserved-prison term, the matter

of consecutive sentences was not addressed with Crose on the record in open court

or in the judgment entry of sentencing. Subsequently, Crose was sentenced to a

consecutive sentence after her community control was revoked by Crawford

County.

{¶19} At the time that Crose was sentenced for her community-control

violation, the Supreme Court of Ohio had accepted State v. Jones, ___Ohio

St.3d.___, 2022-Ohio-4485 for consideration of a certified conflict between several

Ohio Appellate Districts. Jones at ¶ 1. The certified question involved “whether a

trial court, when imposing a prison sentence that it had previously notified the

offender could be imposed upon revocation of community control (“reserved[-

]prison term”), may require that the sentence be served consecutively to other

sentences being served by the offender.” Id. When the Supreme Court released its

decision, in State v. Jones, supra, on December 15, 2022, the trial court herein had

already imposed Crose’s reserved-prison term consecutive to her Richland County

sentence. In Jones, supra, the Supreme Court held that a “[r]eserved[-]prison term

may be ordered to be served consecutively to any other sentence at a community-

control-revocation hearing if notice was given when the prison term was reserved

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that the term could be required to be served consecutively to another prison term at

the time of revocation.” (Emphasis added.) Id. at ¶ 15

{¶20} Thus, the Supreme Court’s clarification of the consecutive-sentence-

notification requirement for reserved-prison terms (to be imposed consecutively to

another prison term at the time of revocation) rendered the trial court’s imposition

of its 6-month prison term consecutive to the sentence in her Richland County case

contrary to law.

{¶21} Accordingly, Crose’s second assignment of error is sustained.

{¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued in the first assignment of error, we affirm the

judgment of the trial court, in part.

{¶23} However, having found error prejudicial to the appellant herein in the

particulars assigned and argued in the second assignment of error, in part, we reverse

the judgment of the trial court and remand for further proceedings consistent with

this opinion.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

WILLAMOWSKI, J., concurs.

/jlr

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WALDICK, J., concurring separately.

{¶24} I agree with the majority’s resolution of the second assignment of error

based upon the Supreme Court of Ohio’s recent decision in State v. Jones, --- Ohio

St.3d ---, 2022-Ohio-4485; however, I write separately to express my opinion that

the partial dissent in Jones contains a better reasoned analysis. In my view, “The

plain language of former R.C. 2929.19(B)(4), 2012 Am.Sub.S.B. No. 337, does not

require a court to provide notice to the offender at the time community control is

imposed that a reserved prison term may be ordered to be served consecutively to

any other sentence.” Jones at ¶ 20. Nevertheless, regardless of my personal opinion,

I recognize that the majority’s holding in Jones is controlling here, therefore, I

concur in this Court’s opinion.

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