[Cite as State v. Catron-Wagner , 2019-Ohio-153.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106887

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. CIERA C. CATRON-WAGNER

DEFENDANT-APPELLANT

JUDGMENT: VACATED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-580080-A

BEFORE: Jones, J., Boyle P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: January 17, 2019ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender BY: Cullen Sweeney Assistant County Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor BY: Anthony Thomas Miranda Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

LARRY A. JONES, SR., J.: {¶1} In a case of first impression for this court, we are tasked with determining whether defendant-appellant’s, Cier a Catron-Wagner (“Catron-Wagner”), violations of the conditions of her community control sanctions were “technical violations.” 1 {¶2} Upon review, we find that they were techni cal violations; theref ore, for the reasons discussed below, the 17-month sentence that the trial court imposed after revoking Catron-Wagner’s community control sanctions is vacated and the case is remanded to the trial court for resentencing. I. Procedural and Factual History

1 There are two companion cases to this case pending with this court: State v. Neville , 8th Dist. Cuyahoga No. 106885, and State v. Stanko , 8th Dist. Cuyahoga No. 106886.{¶3} In 2013, Catron-Wagner was charged with one count each of identity fraud, misuse of credit cards, and theft. In 2014, she entered a plea to misuse of credit cards, a felony of the fourth degree and theft, a felony of the fifth degree. {¶4} At sentencing, the trial court merged the tw o counts, and the stat e elected to proceed on the fourth-degree felony misuse of credit cards conviction. The trial court sentenced Catron-Wagner to three years of community control sanctions with the following conditions: (1) resolve two pending misdemeanor cases within 30 days; (2) no drugs or alcohol and submit to regular testing; (3) a complete prohibition on goin g anywhere “where drugs or alcohol are sold, served, or used”; (4) maintain and verify her em ployment at McDonald’s and if that McDonald’s closes, to obtain full-time employment within 30 days; (5) pay restitution in the amount of $2,212, as well as court costs and supervision fees ; (6) complete 100 hours of community service work by December 31, 2014; (7) verify that child support orders are in place for the two fathers of her four children; and (8 ) no rescheduling proba tion reporting days or reporting over the phone. {¶5} The trial court informed Catron-Wagner that if she violated the terms of her community control sanctions th e court would impose an 18-mont h prison term. Catron-Wagner made a $200 restitution payment at the sentencing hearing. {¶6} Catron-Wagner violated the terms of her community control sanctions four times. After the fourth violation, the trial c ourt imposed a 17-month prison sentence. 1st Violation Hearing: February 2015 {¶7} At the first violation hearing held in February 2015, Catr on-Wagner’s probation officer informed the court that Catron-Wagner failed to complete her community service work,

failed to maintain fu ll-time employment, a nd failed to regularl y pay restitution.{¶8} Catron-Wagner admitted the violations. In mitigation, Catron-Wagner’s counsel

informed the court that her hours at McDonald’s had been cut, but she had since obtained two part-time jobs. Counsel furthe r informed the court that Catr on-Wagner had completed over a third of her community service work, but because of changes to her work schedule, encountered problems in getting all her hours done. Moreover, because of the changes in her employment status, along with raising four children, Catr on-Wagner also encountered difficulties making regular restitution payments. {¶9} The trial court continued Ca tron-Wagner’s community cont rol, and ordered her to (1) complete her community work service in the next ten weeks, and (2) make $70 monthly payments for restitution, court co sts, and supervision fees. 2nd Violation Hearing: December 2015 {¶10} A December 9, 2015 hearing was scheduled for Catron-Wagner’s second violation, but she failed to appear. The trial court issued a capias for her, and the hearing occurred on December 14, 2015, after she was taken into custody. {¶11} Two violations were identified at the second hearing: (1) testing positive for alcohol on three occasions, and (2) failing to ma ke the $70 monthly payments — she made three payments and then stopped. Catron- Wagner admitted the violations. {¶12} Catron-Wagner’s attorney told the trial court that Catron-Wagner was only working about 25 hours per work and therefore was ha ving difficulty making the $70 per month payments. Catron-Wagner told the court that she had consumed alcohol, because she was “depressed with her situation and trying to cope with it,” but maintained that she was not an

alcoholic. {¶13} The trial court continued her community control sanctions with the followingmodifications: (1) provide proof that she had child support orders against the fathers of her children; (2) attend AA meetings six days a week for 90 days, and thereafter every other day, with attendance at all meetings verified; and (3) make mont hly $150 payments for restitution, court costs, and supervision fees.

3rd Violation He aring: May 2016 {¶14} According to Catron-Wagner’s probation officer, Catron-Wagner had failed to make the $150 payments in December 2015 and Ma rch 2016, and had failed to properly verify her attendance at AA meetings. The probation o fficer indicated, however, that Catron-Wagner verified the child support orders . Catron-Wagner had been laid off from her job for half of December 2015; she did make two $150 payments in April 2016, however. Catron-Wagner had completed her community service work. Catron-Wagner admitted the violations. {¶15} In regard to the AA meetings, Catron-Wagner stated that she went to daily meetings for the first 90 days, and then every other day thereafter. She informed the court that her sponsor was her former mother-in-law. Th e court questioned her a bout the meetings and

then stated that it did not believe she had been a ttending and ordered her to “start over” with the meetings. 2 The court continued Catron- Wagner’s community control sanctions. In addition to starting over with the AA meetings, the trial court imposed the following conditions: (1) obtain a new AA sponsor who was not a relative, who had at least ten years of s obriety and provide the sponsor’s name and number to her probation officer within 30 days; (2) have weekly “meaningful contact with your sponsor”; (3) complete 40 additional hour s of community work service in 30 days.

2 For example, the court asked Catron-Wagner which “step” she was on in the program, and Catron-Wagner said step nine. The court questioned her about what step nine was, and Catron-Wagner could not tell the court.4th Violation Hearing: December 2017 {¶16} Shortly after the third violation hearing, Catron-Wagner’s proba tion officer notified

the trial court that she had violated the conditi ons of her community control sanctions by twice testing positive for alcohol and submitting “unaccep table AA meeting sheets.” The trial court set the matter for a July 2016 h earing date; Catron-Wa gner failed to appear, however, and the trial court issued a capias for her. {¶17} Catron-Wagner was eventually arrested and the hearing was held in December 2017. Her probation officer explained that Catron-Wagner’s AA sheets were unacceptable because she had signatures on thr ee different sheets, as opposed to them being individually filled out, and some of the sheets were ripped and had been taped back together. The trial court terminated Catron-Wagner’s community contro l sanctions and sentenced her to a 17-month prison term. Catron-Wagner now appeals and presents the followi ng sole assignment of error

for our review: “The trial court’s 17-month prison sentence for a technical violation of community control sanctions is contrary to law because it exceeded the 180 day maximum sentence authorized by R.C. 2929.15.” II. Law and Analysis {¶18} Effective September 29, 2017, R.C. 2929.15(B), which governs the penalties a trial court may impose on an offender for a violation of community control sanctions, was amended by 2017 H.B. 49. Pursuant to the amendment, limitations are placed on the prison sentence that may be imposed for an offender who has violat ed community control for certain fourth- or fifth-degree felonies. The ame nded statute provides in pertinen t part, and as is relative to community control sanctions for fourth-deg ree and fifth-degree fe lonies, as follows: (B)(1) If the conditions of a community c ontrol sanction are violated or if the offender violates a law or l eaves the state without the permission of the court orthe offender’s probation officer, the sentencing court may impose upon the violator one or more of the following penalties:

* * * (c) A prison term on the offender pursuan t to section 2929.14 of the Revised Code and division (B)(3) of this section, provide d 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. (ii) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a fe lony 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 c ontrol 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. (Emphasis added.) R.C. 2929.15(B)(1)(c)(i) and (ii). {¶19} The newly amended R.C. 2929.15 was in effect when Catron-Wagner was sentenced. However, the issue was not raised by either the parties or the trial court. Therefore, we review for plain error. See Crim.R. 52(B). {¶20} An alleged error is plain error only if it is “obvious,” and “but for the error, the outcome of the trial clearly w ould have been otherwise.” State v. Morgan , 12th Dist. Clermont No. CA2013-03-021, 2014-Ohio-250, ¶ 14; State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 181. The plain error rule should be applied with utmost caution and should be invoked only to prevent a cl ear miscarriage of justice. State v. Underwood , 3 Ohio St.3d 12, 14, 444 N.E.2d 1332 (1983). {¶21} Catron-Wagner was sentenced for fourth-degree felony misuse of credit cards. Thus on its face, 180-day sentence limitation of R.C. 2929.15(B)(1)(c)(ii) appears to apply to her.{¶22} However, in order for the limitation to apply, Catron-Wagner’s violations of her community control sanctions must have been “tec hnical violations.” The statute does not define

“technical violations.” The parties do not cite to any cases from this court exactly on point with this issue, and we ha ve not found any either. 3 There are cases from other districts, however, that we review in determining whether the appe llants’ violations were “technical violations”:

State v. Mannah , 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219; State v. Cozzone , 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-2249; State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672; and State v. Pino , 11th Dist. Lake No. 2017-L-171,

2018-Ohio-2825.

State v. Mannah ; Fifth Appellate District {¶23} In Mannah , the defendant pleaded guilty to one count of possession of heroin and three counts of aggravated trafficking in drugs. The trial court sentenced her to community control sanctions for the possessi on conviction and one of the aggr avated trafficking convictions. As a condition of her community control sanctions, the defendant was to successfully complete all community based correction facility (“CBCF”) program requirements. The defendant asked to be unsuccessfully terminated from the prog ram, however. The state sought revocation of the defendant’s community control sanctions; the defendant stipul ated to the violation.

3 We note State v. Baker , 8th Dist. Cuyahoga No. 106716, 2018-Ohio-4027. In Baker , the defendant was sentenced to community control sanctions for three felonies that were of the fourth and fifth degrees. In December 2017, after the defendant violated his community co ntrol sanctions, the trial court sentenced him to 90 days in prison for each felony, and ordered the sentences to be served consecutively for a total of 270 days in prison. The main issue on appeal was the consecutive nature of the sentences. Th e defendant contended that the trial court “sidestepped” newly amended R.C. 2929.15(B)(1)(c)(i) and (ii) because his a ggregate sentence exceeded the limits of the statute. This court disagreed, finding that “each of Baker’s three 90-day prison sentences is within the statutory range for violating a community control sanction imposed for a fourth-or-fifth degree felony.” Id. at ¶ 14. The trial court apparently found that the defendant’s violations were “t echnical” in nature and, therefore, that the limitations imposed under R.C. 2929.15(B) applied. But the issue of what constitutes a “technical violation” was not before this court in Baker , and there is no reference in the opinion as to exactly what the defendant’s violation of his community control sanctions were, and thus, Baker is not helpful to our resolution of this case.{¶24} The trial court found that the violation was nontechnical in nature, and imposed a ten-month sentence for possession of heroin. The trial court further imposed a term of incarceration of 351 days for the two aggravated trafficking convicti ons, and continued the defendant’s community control sa nctions for the other aggravat ed trafficking conviction. {¶25} On appeal, the defendant contended that the trial court’s ten-month sentence violated R.C. 2929.15(B)(1)(c) because the violation did not constitute a crime or other violation of the law. The Fifth Appellate District disagreed, however. The court stated that “[h]ad the legislature intended R.C. 2929.15(B)(1)(c)(i) to apply to all violations of community control that were noncriminal in nature, it could have specifically stat ed so in the statute.” Id. at ¶ 14. “If the legislature intended the statute to apply solely to violations of community control which constitute criminal offenses, it would have said so directly.” Id. State v. Cozzone and State v. Pino ; 11th Appellate District {¶26} In Cozzone , the defendant was placed on community control sanctions for three counts of theft of drugs, felonies of the fourth degree; and one count of aggravated possession of drugs, a felony of the fifth degree. The defenda nt violated the terms of her community control sanctions by overdosing on heroi n. The trial court terminated her community control sanctions and sentenced her to 18 months on three counts, to be served consecutiv ely, for an aggregate

term of 54 months. The defendant challe nged her sentence on the ground, among other grounds, that she could only be sentenced to 180 days for each of the felonies under R.C.

2929.15. {¶27} The Eleventh Appellate District disagr eed with the defendant, finding that “[a]lthough appellant was not charged or convict ed for this conduct, overdosing on drugs is

criminal in nature and cannot be considered a ‘technical ’ violation of the terms and conditions ofcommunity control.” Id. at ¶ 39. The Eleventh District di stinguished the case from other cases finding technical violations occasioned by (1 ) a defendant’s failure to follow the probation officer’s command to open the front door ( State v. Cearfoss , 5th Dist. Stark No. 2004CA00085, 2004-Ohio-7310); and (2) a defendant’s failure to notify his parole officer before moving out of his residence ( State v. Jenkins , 2d Dist. Champaign N o. 2005-CA-22, 2006-Ohio-2639). {¶28} Further, the Eleventh Appellate District recognized the Twelfth Appellate District’s finding of a technical vi olation in the context of parole: “‘ 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 em ployment, leaving the State,

etc.’” Cozzone , 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-2249, at ¶ 38, quoting Amburgey v. Ohio Adult Parole Auth. , 12th Dist. Madison No. CA2001-07-016, 2001-Ohio-8695, 2001 WL 1256365, *3 (Oct. 22, 2001) (other citations omitted.) {¶29} In Pino , the defendant was put on community c ontrol sanctions for an aggravated possession of drugs conviction, a fifth-degree fe lony. While on the sanctions, the defendant was arrested and charged with OVI, which viol ated two conditions of his community control sanctions: (1) that he obey all fe deral, state, and local laws; and (2) that he abstain from using

alcohol. The defendant admitted the violations a nd pled guilty to having physical control of a

vehicle while under the influence of alcohol, a misdemeanor. Th e trial court terminated the defendant’s community control sanctions and sentenced him to a nine-month prison term. {¶30} On appeal, citing newly enacted R.C. 2929.15(B)(1)(c)(i), the defendant contended

that the trial court was bound to a maximum 90 days sentence. The defendant contended that his use of alcohol was not per se criminal. Th e state conceded the e rror and the Eleventh Appellate District agreed. The court relied on the Ohio S upreme Court’s definition of a“technical” probation violation in State ex rel. Taylor v. Ohio Adult Parole Auth. , 66 Ohio St.3d 121, 609 N.E.2d 546 (1993): “‘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 em ployment, leaving the State, etc.’” Id. at 124, quoting Inmates’ Councilmatic Voice v. Rogers , 541 F.2d 633, 1976 U.S. App. LEXIS 7189, fn.2 (C.A.6, 1976).

State v. Davis ; 12th Appellate District {¶31} In Davis , the defendant violated his commun ity control sanctions by voluntarily signing himself out of his CBCF where he was getting alcohol and drug treatment. The Twelfth Appellate District declined to find that th e defendant’s conducted constituted a technical violation of his community cont rol sanctions. The court noted that the condition of obtaining treatment in a CBCF was a “special,” rather than “standard” condition. Id. at ¶ 17. The court distinguished the condition from an “administrative requirement facilitating community control supervision,” stating that, rather, it was a “subs tantive rehabilitative requi rement which addressed a significant factor contributing to appellant’s criminal conduct.” Id. at ¶ 18. Therefore, the

court held that the defendant ’s voluntary discharge from the treatment program was not a

technical violation. Id. Analysis {¶32} Catron-Wagner violated her community control sanctions by having unacceptable AA sheets because she had signatures on three different sheets as opposed to them being individually filled out, and some of the sheets were ripped and had been taped back together.

She also violated because she ha d tested positive for alcohol. {¶33} As mentioned, she contends that her viol ations were “techni cal violations” and,therefore, that she could only be sentenced to prison term of 180 days under R.C. 2929.15(B). The state, however, contends that under R.C. 1.42, we have to apply the common meaning of “technical,” and under the common m eaning, the appellants’ viola tions were neither minor nor insubstantial and, therefore, not “technical” violations. {¶34} In reviewing felony sentences , appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2), rather th an an abuse of discretion standard. See State v.

Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or m odify a sentence, or it may vacate the sentence and remand for resentencing, only if it clearly and convincingly finds either (1) the record does not support certain specified findings or (2) the sentence imposed is contrary to law. {¶35} After careful consideration of the above -discussed case law, we conclude that under R.C. 2929.15(B)(1)(c), “technical violati ons” constitute, in some, but not all, circumstances, violations of community control sanctions that are neither new criminal offenses nor felony offenses. Because “technical violation” is not defined in the statute, and it is subject to different interpretations, we consider the legislative history and the circumstances under which the statute was enacted, as suggested by R.C. 1.49. R.C. 1.49 sets forth the following factors for

courts to consider in dete rmining the legislative intent of an ambiguous statute: (A) The object sought to be attained; (B) The circumstances under wh ich the statute was enacted; (C) The legislative history; (D) The common law or former statut ory provisions, including laws upon the same or similar subjects; (E) The consequences of a particular c onstruction; (F) The administrative construction of the statute.{¶36} As we note in the companion Neville case, H.B. 49 was a budget bill. Gary Mohr, Director of the Ohio Departme nt of Rehabilitation a nd Correction, testifie d before the House Finance Committee that, in regard to criminal sentencing, the purpose of the H.B. 49

amendments was to reduce the number of low- level felony offenders in state prisons. According to Mohr, although there have been “p revious reform efforts, Ohio’s prison population has not realized the reduction in pris on population found in other states.” {¶37} The belief, according to Mohr, was that H. B. 49 “strikes the appropriate balance between treating those drug-addicted Ohioans in the community, while maintaining the Department’s obligation to protect the public by safely incarcerating those who commit more serious offenses.” Thus, the purpose of the rele vant amendments to H.B. 49 was to reduce the amount of low-level felony offe nders in the state’s prison popula tion, to save the state money, and to provide drug-addiction treatment to offenders by keeping them in their local communities. {¶38} There has undoubtedly been a trend by the Oh io legislature over the recent years to reduce prison sentences for nonviolent, low-le vel offenders. For example, Am.Sub.H.B.86, effective in 2011, “raised theft thresholds, ex panded diversion opportun ities, lowered prison terms for certain drug crimes, limited prison time for low-level felonies, encouraged alternatives to prison, and provided mechanisms for shorte ned prison sentences, among other reforms.” State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 16, citing Knopp, Breaking the Cycle: Ohio Reentry Courts , 41 Ohio N.U.L.Rev. 737, 746 (2015). {¶39} Having noted the above, we find in th is case that Catron-Wagner committed a

technical violation of her comm unity control sanctions. The record shows Catron-Wagner’s efforts at complying with the numerous conditi ons of her community control sanctions. We decline to find that her unacceptable AA sheets (d eemed so because she had signatures on threedifferent sheets as opposed to them being indivi dually filled out, and some of the sheets were ripped and had been taped back together) and he r testing positive for alc ohol were non-technical violations — they were not new criminal offenses, were not inherently criminal in nature, and did not evidence a wholesale failure to engage in the terms of her community control. 4 {¶40} In light of the above, the trial court’s 17-m onth sentence was contrary to law because it exceeds the 180-day maximum prison sentence allowed under R.C. 2929.15(B)(1)(c). Accordingly, Catron-Wagner’s sole assignment of error is sustained. {¶41} Sentence vacated; case remanded for resentencing. It is ordered that appellant rec over of appellee costs herein taxed.

The court finds there were reas onable 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 Appella te Procedure.

LARRY A. JONES, SR., JUDGE MARY J. BOYLE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR

4 We note that this case is distinguishable from the Neville companion case, in which the defendant failed to report to the probation department at all and, thus, never even started the probation process.