[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 communitycontrol-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-Ohio4763, 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