[Cite as State v. Whitacker , 2020-Ohio-4249.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals Nos. WD-19-038 WD-19-039 Appellee WD-19-040 v. Trial Court Nos. 2016CR0004 2016CR0129 Jesse Whitacker 2016CR0459 Appellant DECISION AND JUDGMENT Decided: August 28, 2020 * * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Michael B. Kelley, for appellant.

* * * * * MAYLE, J. {¶ 1} In this consolidated appeal, Jesse Whitacker appeals the June 2 4, 2019 judgment of the Wood County Court of Common Pleas sentencing hi m to an aggregate prison term of three years. For the following reasons, we affi rm the judgment of the trial

court.2. I. Background {¶ 2} This consolidated appeal involves three separate cases from the Wood County Court of Common Pleas: (1) case No. 2016CR004, in which Whitacker was charged with one count of aggravated possession of drugs in vio lation of R.C. 2925.11(A)(C)(1), a felony of the fifth degree; (2) case No. 20 16CR129, in which Whitacker was charged with aggravated possession of drugs in vi olation of R.C. 2925.11(A)(6)(a), a felony of the fifth degree; and (3) case No . 2016CR0459, in which Whitacker was charged with trafficking in cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(a), a felony of the fifth degree. {¶ 3} Whitacker initially entered a not guilty plea to each charge. On December 16, 2016, following plea negotiations with the state, Whitacker appeared for a combined change of plea hearing and agreed to enter a guilty pl ea in each case. The trial court accepted Whitacker’s guilty pleas, advised him of Crim.R. 11 rights, and ordered him to participate in a presentence investigation. {¶ 4} On February 6, 2017, the trial court sentenced Whitacker to thr ee years of community control, with 15 separate conditions. Additionally, in case No. 2016CR004, the trial court ordered Whitacker to enter into and complete th e SEARCH substance abuse treatment program at the Northwest Community Corrections Center as a condition of community control. The trial court informed Whitaker that i f he violated the conditions of his community control, the trial court would impo se 12-month prison sentences for each conviction, and order the prison sentences t o be served consecutively.3. {¶ 5} Although Whitacker successfully completed the SEARCH Program, h e violated other conditions of his community control. On January 5, 2018, the state filed a petition to revoke Whitacker’s community control because Whitac ker was arrested for operating a vehicle while intoxicated and tested positive for c ocaine and fentanyl. On February 5, 2018, Whitacker admitted these allegations, and the trial court found that he had violated the terms of his community control. As a sanction , the trial court extended Whitacker’s term of community control by an additional year. T he trial court also ordered Whitacker to continue to abide by all conditions origin ally imposed. {¶ 6} On June 5, 2018, the state filed a second petition for revocati on of community control. The state alleged that Whitacker failed a s cheduled drug test by testing positive for suboxone and fentanyl. Whitacker again ad mitted to the violations. Whitacker was ordered to continue on community control under th e same conditions as originally imposed. In addition, with respect to case No. 2016 CR0129, the trial court ordered Whitacker to re-enter and complete the SEARCH program a t the Northwest Community Corrections Center. {¶ 7} On January 9, 2019, the state filed a third petition for revoca tion of community control. The state alleged Whitacker failed a schedu led dug test by testing positive for fentanyl. Whitacker admitted to the violation at a January 14, 2019 hearing.

The trial court found that Whitacker had violated the condition s of his community control and set the matter for disposition on April 15, 2019.4. {¶ 8} On April 2, 2019, prior to disposition, the state filed a fourt h petition for revocation of community control. The state alleged that Whitac ker failed to report to the probation department as required by the terms of his community control. As a result of this petition, Whitacker appeared for a bond revocation hearing on April 8, 2019. At that time, he underwent a drug screening and tested positive for sub oxone and fentanyl. The state filed an “addendum” to its April 2, 2019 petition—a fifth petition to revoke community control—adding the most-recent positive drug screenin g as an additional reason to revoke Whitacker’s community control. {¶ 9} At his April 15, 2019 sentencing, Whitacker admitted to the vio lations identified in the April 2, 2019 petition and the April 8, 2019 addendum. The trial court accepted Whitacker’s admission and proceeded with sentencing. The trial court determined that Whitacker was no longer amenable to community c ontrol and imposed a one-year prison term on each of Whitacker’s convictions. The t rial court ordered the sentences to be served consecutively for a total aggregate pris on term of three years. Whitacker timely appealed and asserts the following error for o ur review: 1. It is plain error and an abuse of discretion for the trial court to sentence Appellant to prison exceeding ninety days on a felony of the fifth degree for a technical violation of ORC 2929.15(B)(1)(c)(i). II. Law and Analysis {¶ 10} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings , 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increa se, modify, or vacate5. and remand a judgment only if we clearly and convincingly find either of the following: “(a) the record does not support the sentencing court’s finding s under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 292 9.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is rele vant” or “(b) the sentence is otherwise contrary to law.” State v. Yeager , 6th Dist. Sandusky No. S-15-025, 2016- Ohio-4759, ¶ 7, citing R.C. 2953.08(G)(2). {¶ 11} Here, Whitacker argues that his felony sentences are contrary t o law because they violate R.C. 2929.15(B), which provides: (B)(1) If the conditions of a community control sanction are vi olated

or if the offender violates a law or leaves the state without t he permission of the court or the offender's probation officer, the sentencing c ourt may impose upon the violator one or more of the following penalties : * * * (c) A prison term on the offender pursuant to section 2929.14 o f the Revised Code and division (B)(3) of this section, provided that a prison term imposed under this division is subject to the following li mitations, as applicable: (i) If the prison term is imposed for any technical violation o f 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 n ew criminal6. offense and that is not a felony, the prison term shall not exc eed ninety days. {¶ 12} Accordingly, a prison term imposed following a technical violat ion of the conditions of community control is contrary to law if it exceed s the applicable time limits established in R.C. 2929.15(B)(1)(c). See State v. Goetz , 6th Dist. No. Ottawa Nos. OT-19-013, OT-19-014, 2019-Ohio-5424, ¶ 17. Here, it is Whitac ker’s burden to demonstrate, by clear and convincing evidence, that his violati ons were technical in nature—and, therefore, that the trial court erred by imposing a prison sentence that exceeded the applicable 90-day limit established in R.C. 2929.1 5(B). State v. Moore , 12th Dist. Butler No. CA2007-03-060, 2008-Ohio-1477, ¶ 12, citi ng State v. Costlow , 8th Dist. Cuyahoga No. 89501, 2008-Ohio-1097, ¶ 15. {¶ 13} The Supreme Court of Ohio recently held that a “violation is ‘n ontechnical’ if, considering the totality of the circumstances, the violatio n concerns a condition of community control that was ‘specifically tailored to address’ m atters related to the

defendant’s misconduct or if it can be deemed a ‘substantive re habilitative requirement which addressed a significant factor contributing to’ the defen dant's misconduct.” State

v. Nelson , Slip Opinion No. 2020-Ohio-3690, ¶ 26, citing State v. Davis , 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 17, 18; see also State v. Calhoun , 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶ 30 (a violation is n ontechnical if the condition violated “a specifically tailored substantive rehabil itative requirement” as opposed to “a general administrative requirement to facilitate supervision during the7. period of the sanction.”) In addition, a trial court “may find a violation to be more serious—and therefore nontechnical— based in part on the manner in which the violation occurred; it is not constrained to reviewing only the nature of the condition itself.” Id. at ¶ 23 (emphasis sic). “[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 w ell as any other relevant

circumstances in the case.” Id. at ¶ 26. “There is no single factor that determine[s]

whether a violation is technical or nontechnical.” Id

. {¶ 14} Whitacker argues that his most-recent violations—i.e., his admi tted use of illegal drugs—were technical in nature because the requirement that he refrain from using drugs was a general administrative condition of his community c ontrol rather than a specifically tailored substantive rehabilitative requirement. Whitacker also argues that his violations were technical because they did not result in ne w felony charges. We disagree for several reasons. {¶ 15} First, Whitacker was convicted of two counts of drug possession and one count of drug trafficking. Given that his convictions were for drug-related offenses, we find that the community control conditions that prohibited drug use were substantive rehabilitative requirements rather than general administrative requirements to facilitate his supervision. See State v. Hope , 6th Dist. Wood No. WD-18-080, 2019-Ohio-3023 (holding a defendant’s failure to appear for and pass drug test s violated substantive rehabilitative requirements and were nontechnical violations). Accordingly, when he8. tested positive for drugs, he violated substantive rehabilitati ve requirements of his community control. The trial court therefore did not err when it determined that

Whitacker’s violations were nontechnical. {¶ 16} Second, at sentencing, the trial court recounted Whitacker’s hi story of repeated community control violations. The trial court also no ted that while Whitacker had some success in drug treatment programming, he nevertheless continued to use drugs in violation of his community control conditions. In accordanc e with Nelson , the trial court engaged in a practical assessment of the case before it, and considered the manner

in which Whitacker’s violations had occurred. We find that Whi tacker’s repeated violations, particularly in light of the nature of his convicti ons, supports the trial court’s

conclusion that the violations were nontechnical. Nelson at ¶ 26. {¶ 17} Finally, contrary to Whitacker’s argument, it is immaterial tha t his

violations did not constitute new felonies. “The determination whether a violation is a ‘technical violation’ under R.C. 2929.15(B)(1)(c) does not turn on whether the conduct at

issue is criminal.” Nelson at ¶ 26. In Nelson , the Supreme Court of Ohio explicitly rejected the proposition that all noncriminal conduct necessari ly results in a technical violation of community control conditions. Id. at ¶ 27. Rather, trial courts have discretion to consider the nature of the violation on a case-by -case basis when determining whether the violation was technical or nontechnical

. {¶ 18} In sum, the trial court’s determination that appellant’s violat ions of the conditions of his community control were nontechnical is suppor ted by the record, and9. Whitacker fails to identify any evidence to the contrary. As a result, the 90-day time limit established in R.C. 2929.15(B)(1)(c)(i) for prison terms resulting from a technical community control violation is not applicable to Whitacker’s se ntence. The trial court’s imposition of a one-year prison term on each of Whitaker’s conv ictions is not contrary to law and his assignment of error is found not well-taken.

III. Conclusion {¶ 19} We find appellant’s assignment of error not well-taken. We the refore affirm the June 24, 2019 judgment of the Wood County Court of C ommon Pleas. Appellant is ordered to pay the costs of this appeal pursuant t o App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.