[Cite as State v. Elliot , 2023
- Ohio
- 1459.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO , Plaintiff

- Appell ee ,

vs. JAMES ELLIOTT , Defendant

- Appell ant

. :

:

:

:

: APPEAL NO

. C

- 220339 TRIAL NO. B

- 2105828
O P I N I O N

.

Criminal Appeal From: Hamilt on County Court of Common Pleas Judgmen t Appealed From Is : Affirmed Date of Judgment Entry on Appeal: May 3 , 2023

Melissa A. Powers , Hamilton County P rosecuting Attorney, and Keith Saut er , Assistant Pro secuting Att orney , for Plaintiff

- Appell ee , Bryan R. Perkins , for Defendant

- Appell ant

.OHIO FIRST DISTRICT C OURT OF APPE AL S

2 K INSLEY , Judge. 

### {¶1} Defendant

- appellant James Ellio tt appeals from the trial court ’ s judgment revoking his community control and imposing a sentence of 18 months ’ impris onment. 

### {¶2} El li ott argues on appeal that the t rial court erred in finding him guilty of a community

- control violation where the re was not sufficient evidence to find that
h e violated the terms and conditions of his community control. He additionally challe nges the sen tence imposed for th e violation, a rguing that the trial c ourt erred by imposing an 18

- month prison sentence for a technical violation on a felony of the fourth degree, and that the court failed to strictly comply with the statutory notification requirement s in R.C. 2929.19 (B) (4) when imposing sentence. Finding Elliott ’ s argum ents to be without merit, we af firm the trial court ’ s judgment.

Factual and Proc edural Background


### {¶3} In February of 2022, Elliott pled g uilty to burglary, a fourth

- degree fe lo ny in vi olat ion of R.C. 2911.12(B ). The trial court sentenced Ellio tt to a three

- year period of community c ontrol. At the sentencing hearing, the trial court made the following stat ements c oncerning the impos ition o f community control: I’m going to place you on comm unity control, but you are going to go in and you’re going to stay in the Justice Center and complete the Men’s Extended Treatment Program. Once you are released from the Men’s Extended Treatment Program, only if you successfully compl ete it

— if you don’t , I’m just going to send you to prison if you come back here on a violation because you have n ’ tOHIO FIRST DISTRICT C OURT OF APPE AL S

3 done what you’re supposed to do in the program

— once you’re released on probation, I’m going to recommend MDO probation for you. And I want pr obation to refer yo u to the halfway house at the Talbert House program so they can get you into transitional housing. So you’re goin g from the jail and you’re going to go into supervised housing from the jail on to MDO probation. I want you to follow throu gh with any recomme nded mental health treatment and/or drug treatment once you’re released from the Justice Center, and you’ll be subject to random drug and alcohol screens once you’re released as well. I’m going to order restitution, I believe in the amou nt of $ 225.

* * * You are to stay away from the Hubers and their property. You’re not to have any contact with them, and you’re not to go near their home ever again.

* * * Like I said, this is a felony of the fourth degree. It carries anywhere b etween nine

— I’m sorry

— six and 18 months at the Ohio Department of
Correctio n s. So if you come back on any violation, especially one where you’re not fully participating in the programming that’s been recommended for you, you’re just going to go do the ti me at the Oh io Department of
Corrections.OHIO FIRST DISTRICT C OURT OF APPE AL S

4 

### {¶4} The sentencing ent ry ref lected the information th at the trial court informed Elliott of at the sentencing hearing , including the ad visement that if he violated the terms or conditions of his community control, he w ould be sent enced to a period of six to 18 months in pri son. 

### {¶5} In April of 2022, a community

- control

- sa nction violation was filed against Elliott. The vio lation alleged that he failed to comply with the court

- ordered
Men ’ s Extended Tre atment Program. Ellio tt pled no c ontest to the community

- control violation , and t he trial court found him guilty

. The court ’ s sentencing entry stated that Elliott was restored to community control under the same conditions that had previously been imposed. It additionally st ated that El l io t t would be sentenced to a
p eriod of six to 18 months in prison if he again violated the terms and conditions of his community control. 

### {¶6} In J une of 20 22, another community

- control

- sanction violation was filed against Elliott , alleging that he fai led to report to probation for his initial interview after being released from the J ustice C enter, failed to pay restitution, and failed to comply with court

- ordered treatment. At a hearing on the v iolation, Elliott pled guilt y . The trial court sen tenced him t o 18 months ’ imprisonment. Guilty Plea Pr

ecludes Challenge


### {¶7} In his first assignment of error, Elliott argues that the trial court erred in finding him guilty of a community

- control violation because th e r ecord di d not contain substantial evide nce to suppo r t that finding. Because a community

- control

revocation hearing is not a criminal trial, the state must present substantial evidence of the violation, rather than prove that th e terms of community control were violated beyond a reasonable doub t. State v. Day , 1 st Dist. Hamilton N o. C

- 210503, 2022
-OHIO FIRST DISTRICT C OURT OF APPE AL S

5 Ohio

- 1954, ¶ 10. We review a trial court ’ s decision to revoke community control for an abuse of discretion. Id

. 

### {¶8} As set forth above, Elliott pled guilty to the community

- control violation. A s such, he cannot no w argue that there was not a sufficient basis in the record to find him guilty of the violation. “A defendant may elect to forgo a hearing on the merits of the alleged community control violations and admit to the violations.” State v. McCoy , 2d Dist. Ch a mpaign No. 2020
- CA

- 13, 2021
- Ohio

- 456, ¶ 35, quoting
State v. Norman , 2d Dist. Clark Nos. 2017

- CA

- 4 0 and 2017
- CA

- 41, 2018

- Ohio

- 993, ¶
16

- 20. As this court has held, “if the defendant opts to enter a guilty or a no

- contest plea to the community

- control vio l ation, the need for an evidentiary hearing is obviated.” State v. Alexander , 1st Dist. Hamilton No. C

- 070021, 2007
- Ohio

- 5457, ¶ 3. Having pled guilty to the violation as alleged, Elliott eliminated the need for the state to present evidence of the viola t ion , and he cannot now challenge the sufficiency of the evidence supp orting it

. 

### {¶9} W e accordingly hold th at the trial court did not err in finding Ellio t t guilty of a community

- control violation, and we overrule the first assignment of error.

Tec hnical v. No n technical Violations


### {¶10} In his second assignment of error , Elliott argues that the trial court erred by imposing an 18

- mon th prison senten ce as a community

- control

- violation
sanction on a felony of the fourth degree. 

### {¶11} P ursuant to R.C. 2953.08(G) (2)(a), we m a y modify or vacate a defendant’s sentence only if we clearly and convincingly find that the record does not support the trial court’s findings under relevant statutes (specifically division (B) or (D) of section 2929. 13, division (B)(2)(e) or (C)(4) of se c tion 2929.14, or division (I)OHIO FIRST DISTRICT C OURT OF APPE AL S

6 of section 2929.20 of the Revised Code) or that the sentence is contrary to law. State
v. Marcum , 146 Ohio St.3d 516, 2016

- Ohio

- 1002, 59 N.E.3d 1231, ¶ 22

- 23; State v. White , 2013
- Ohio

- 4 225, 997 N.E.2d 629, ¶ 5 ( 1st Dist.). 

### {¶12} E lliott contends that because his c ommunity

- control violation was a technical violation, and bec ause the offense that he was convicted of was a felony of the fourth degree, the trial court was not permitted to impose a maximum se ntence.
He re l ies on R.C. 2 929.15(B)(1) (c)(ii), which provides : If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fourth degree that is not an offense of violence and is not a sexually oriented of

f ense, the prison term shall not excee d one hundred eighty days, provided that if the remaining period of the community control at the time of the violation or the remaining period of the reserved prison sentence at that time is less than one h undred eight y days, the prison term shall not exce ed the length of the remaining period of community control or the remaining period of the reserved prison sentence. 

### {¶13} The validity of Elliott ’ s argument hinges on whether the community

control violation to wh ich he pled g uilty is pro perly classifie d as a te chnical or non

technical violation . In State v. Nelso n , 162 Ohio St.3d 338, 2020

- Ohio

- 3690, 165 N.E.3d 1110, the court discussed the distinction between these two types of violations. It explained that a d ete rmination as to whether a violation is tec hnical or nonte chnical does not d epend on whether the conduct underlying the violation is criminal. Id. at ¶
26. At the time that Nelson was decided, R.C. 2929.15 did not def ine the term

“ technical violation. ” I d. at ¶ 1 8

. In the absence of a statutory definition, the courtOHIO FIRST DISTRICT C OURT OF APPE AL S

7 explained that a violation would be consider ed technical when “ the condition violated is akin to ‘ an administrative requirement facilitating community control supervision. ’

” Id . a t ¶ 26, qu oting Sta t e v. Davis , 12 th Dist. Warren No. CA20 17
- 11
- 156, 2018

- Ohio

2672, ¶ 18. In contrast, a n ontechnical violation is one that “ concerns a condition of community control that was ‘ specifically tailored to address ’ matters related to the defendant ’ s mi sconduct o r if it can be deemed a ‘ substantive rehabilitative requirement which addressed a significant factor contributing to ’ the defendant ’ s misconduct. ” Id ., quoting Davis at ¶ 17

- 18. 

### {¶14} As noted by the Third District in State v. Crose , 3d Dist . Cra wfo rd No.
3
- 2 2
- 34, 2023
- Ohio

- 880, ¶ 12, the Genera l Assembly has s ince amended R.C. 2929.15

to def ine the term “ te chnical violation. ” Pursuant to R.C. 2929.15 (E) , a te chnical violation: [M] eans a violation of the conditions of a community control sanction
im posed for a felony of the fifth degree, or for a felony of the fourth degree that is not an offense of violence and is not a sexually oriented offense, an d to which neither of the following applies: (1) The violation consists of a new criminal offense t hat is a fel o n y or that is a misdemeanor other than a minor misdemeanor, and the violation is committed while under the community control sanction. (2) The v iolation consists of or includes the offender’s articulated or demonstrated refusal to participate in the commu n i ty 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

.OHIO FIRST DISTRICT C OURT OF APPE AL S

8 

### {¶15} Here, Elliott was found g uilty of viol ati ng his co m m unity control for f ailing to c omply with court

- ordered treatment (the Men ’ s Extended Treatment
P rogram), failing to pay restitution , and failing to report to his probation officer after being released from the Ju stice Cen ter

. 

### {¶16} Both the fai lur e to pay r e stitution and to compl y with court

- ordered

treatment w ere nontechnical violations. Each requirement wa s tailored to address Elliott ’ s misconduct. T he restitution was imposed to compensate the victims of Elliott ’ s burglary offen se for the ha rm he caused t o their property

. A n d the requirement that Ellio tt complete the Men ’ s Extended Treatment P rogram was imposed to address the trial cour t ’ s concerns about Elliott ’ s mental

- health and drug addiction

. 1 See State v. Castner , 163 Ohio St.3d 19, 20 20
- Ohio

- 49 50 , 167 N.E.3d 939, ¶ 16 (failure to complete a drug

- treatment program was a nontechnical violation); State v. Yauger , 8 t h Dist. Cuyahoga No. 111734, 2023

- Ohio

- 81 5, ¶ 31 (failure to pay restitution was a nontechnical violation because it was ta il ored to ad dr ess concerns for families who suffered from the defendant’s conduct and because the requiring of restitution is rehabilitative). 

### {¶17} Elliott ’ s failure to report to his probation officer, on the other hand, was a technical violation. He wa s re qu ired to do s o to “ facilitate [ ] community control supervision. ” See Nelson , 162 Ohio St.3d 338, 2020

- Ohio

- 3690, 165 N.E.3d 1110 , at ¶

1 Elliott alleges that he was conf used as to w

he the r h e was required to compl ete the Men ’ s Extended Treatment P rogram in lieu o f or in addition to serving 180 days in the Justice Center. He further alleges that his failure to complete the Men ’ s Extended Treatment P rogram was not his fault , as he was no t t ransferred to the p rogram d uring his stay in the Justice Center. Af ter reviewing the record, we are empath etic t o Elliott ’ s confusion, a s the instructions from the trial court were less than clear as to whether Elliott was required to com plete both 1 80 da ys in jail and the Men ’ s E xtended Treatment Program or if was only requir ed to compete the program if it occurred during his 180

- day jail stay. Never theless, because Elliott pleaded guilty to the failure to complete the Men ’ s Extended Tre a tment P rogr am d e spite his conf usion , the t rial court acted appro priately in sentencing him to this admitted violation.OHIO FIRST DISTRICT C OURT OF APPE AL S

9 26. And the failure to report to probation fits within the def inition of a technical violation in R.C. 2929.15 ( E )

. 

### {¶18} Beca use th e pris on ter m imposed on Elliott was for both te chnical and nontechnical violations, the trial court was not limited to imposing the 180

- day period for technical violations set forth in R.C. 2929.15(B)(1)(c)(ii). Th e second assignment of error is ac cor din gly ov er rule d. R.C. 2929.19(B)(4)


### {¶19} In his third assignment of error, Elliott argues that the trial court erred by im posing a prison sentence without strictly com ply ing with the st atutory notification requirements in R.C. 2929.19(B)(4). 

### {¶20} R.C. 2929.19(B) (4) co ntains n otif ications that the trial co urt must give to an offender when sentencing the offender to a period of community control. It provides that: If the sentencing court determines at the sentencing hearing that a community control sanction should be im posed an d th e court is not prohibited from imposing a community control sanction, the court shall impose a community control sanction. The court shal l notify the offender that, if the conditions of the sanction are violated, if the offender commits a viol ation of any law, or if the offender leaves this state without the permission of the court or the offender’s probation officer, the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the o ffen der and shall indicate the range from which the prison term may be imposed as a sanction for the violation, which shall be the rangeOHIO FIRST DISTRICT C OURT OF APPE AL S

10 of pr ison terms for the offense that is specified pursuant to section 2929.14 of the Revised Code and as descri bed in s ecti on 2929.15 of the Revised Code. R.C. 2929.19(B)(4)

. 

### {¶21} At Elliott ’ s initial sentencing hearing when the trial court first sentenced him to a period of commu nity control, t he trial court informed Elliott of the following: Like I said, this is a f

elony of the fourth degree. It carr ies anyw here between nine

— I ’ m sorry — six and 18 months at the Ohio Department of
C o rrections. So if you come back on any vi olation, especially one where
you ’ re not fully participating in the programming that ’ s been

recom mended f

or y ou, you ’ re just going to go do the time at the Ohio Department of Corrections. Do you understand? 

### {¶22} The trial court compli ed with the requirement in R.C. 2929.19(B)(4) that it inform Ellio tt of the range f rom which a prison term could be i mp osed for a

v iola tion of community control. Bu t it failed to inform Elliott that , if he were to violate his community cont rol , commit a violation of any law , or leave the state without permission from the court o r his probation officer, the court could i m pose a long er tim e under the same community

- control sanction , impo s e a more restrictive
communi ty

- control sanction, or impose a pri son term. 

### {¶23} Upon Elliott ’ s first community

- control violation, where upon t he trial court continued him on the same commu nity

- c ontrol sanct io ns t hat were initially imposed , the court did not cure the defe ct regarding these notifications. It again only informed Elliott that he would “ go to the O h io D epartment o f Corrections ” for a future violation.OHIO FIRST DISTRICT C OURT OF APPE AL S

11 

### {¶24} A s recognized by the Ohio Supr eme Co urt, “ [t ]he notification requirement in R.C. 2929.19(B)(5) is meant to put the offender on notice of the specific prison term he or she faces if a violation of the conditions occurs

. ” 2 State v. Fraley , 105 Ohio St.3d 13, 2004

- Ohio

- 7110, 821 N.E.2d 9 95, ¶ 17. T he not ification provided by the trial court complied with this recognized purpose. Nonetheless, the trial court indi s putably failed to comply with the remainin g notific ation re quirements in R.C. 2929.15(B)(5). 

### {¶25} In State v. Colburne , 9th Dist. S ummit No. 27 55 3, 2 015
- Ohio

- 4348 , the Ninth Appellate District considered a similar omi ssion by the trial court when notifying the defendant about community control. The trial court in Colburne told the defendant about the prisons terms it would impose for a com munity

- c ontr ol vi olation , but “it did not otherwis e inform Mr. Colburne of the statutorily required notifications under R.C. 2929.19(B)(4). The trial court did not notify Mr. Colburne that violating the conditions of community control, violating ano ther l aw, or l eavi ng the state without permission could r esult in additional sanctions, including the prison terms outlined by the trial court.” Id . at ¶ 29. The Ninth District held that the notifications provided were insufficient to comply with R.C. 29 29.19( B)(4)

. Id

. It recogn ized that all required not ifications had been included in the sentencing entry, but held that was

not sufficient to comply with the notification requirement because the notification had to take place at the senten cing hearing. Id

. B ecause C olbu rne had not yet violated community control , the court determined that a rem and for resentencing was an appropriate remedy

. Id

.

2 Former R.C. 2929.19(B)(5) has been renumbered and is the equivalent of current R.C. 2929.1 9(B)(4).OHIO FIRST DISTRICT C OURT OF APPE AL S

12 

### {¶26} The Sixth District considered the impact of the same omission by the trial court in State v. Jones , 6th Dist . Luca s No. L

- 03
- 1 321, 2005
- Ohio

- 5736. In Jones , the trial court notified the offender of the specific prison term that would be imposed if community control were violated, but it failed to notify him that the prison term could also be imposed if he commi tted a viola ti on o f any law or left the state without permission of his probation offic er. Id. at ¶ 14. The appellate court held that the trial court failed to comply with R.C. 2929.19(B)(5) , and it remanded for the trial court to provide the required no tifica tions. Id

. at ¶ 14

- 15. 

### {¶27} In State v. Robinson , 2d Dist. Champaign No. 2004 CA 21, 2005

- Ohio

3879, the court reached a different o utcome when considering a similar omission by the trial court. In Robinson , the trial court informed the defendant of t he pos sibili ty of the imposition of a prison term if he were to violate community control, and it provided the length of the prison term . But it “did not expressly inform Robinson of the provisions relating to more lengthy or restrictive community control sanc tions a t the sentencing hearing.” Id . at ¶ 8. The Second District held that although the trial court failed to co mply with R.C. 2929.19(B)(5 ) , Robinson had suffered no prejudice because: The trial court informed Robinson about the most significant

c onseq uence o f a c ommunity control violation: the possibility of imprisonment and its term. It is very unlikely that information about less serious consequences would have had an impact on Robinson’s behavior if the threat of prison did not persuade him to comp ly wi th t he terms of community control.OHIO FIRST DISTRICT C OURT OF APPE AL S

13 More importantly, when Robinson was found to have committed his first community control violation in September 2003, the court imposed a more restrictive term of community control

-- one of the options about wh ich h e had n ot be en informed at the sentencing hearing. If he was prejudiced at all, it was by the imposition of this sanction about which he had not been previously informed. However, Robinson did not object to or appeal from that judgment. Id. at ¶ 10

- 11. The cou rt he ld that Robinson waived any error related to the trial court ’ s failure to comply with R.C. 2929.19(B)(5), stating that: In our view, it would be illogical to permit Robinson to challenge, at this juncture, the trial court’s failure to inf orm h im in 2 00 2 t hat he might face more restricti ve or more lengthy community control sanctions for a violation. When he was sentenced to more restrictive sanctions in 2003, he did not object to the imposition of that sanction in the trial court or on app eal. That w ou ld have been the time to raise the alleged error. We will not vacate his sentence now, when the court has imposed a prison sentence, the possibility of which he had been fully informed. Thus, Robinson has waived the alleged error related to R.C.
2929.1 9( B)( 5)

. Id . at ¶ 12. 

### {¶28} T he case at ba r is more analogous to Robinson th an to Colburne or Jones . In the latter two cases, the appellants appealed from the initial imposition of community control, before any violation had occurred , w h ere a s Elli o tt and Robi ns on
app ealed from the sentenc e imposed following a communit y - control violation. L i keOHIO FIRST DISTRICT C OURT OF APPE AL S

14 the offender in Robinson , Elliott failed to appeal when the trial court continued him on community control after his violation . I f Ellio tt were to have suff e red any pre

ju di c e, it would have been at that point, when the trial c ourt im posed a continuation of community control, a sanction of which he had not been previously informed. 

### {¶29} T he trial court impo sed a sentence from the sentencing rang e it informed Elli o tt h e faced i f h e were to commit a community

- control violation. We hold that Elliott suffered no prejudice from the trial court ’ s failure to provide the additional not ifications in R.C. 2929.15(B)(4). 

### {¶30} Elliott ’ s t hird assignment of error is overruled, a nd the judgm en t o f the trial court is, acco rdingly , affirm ed. Judgment affirme d

.

B ERGERON , P.J., and W INKLER , J. , concur .

Please n ote: The court has recorded its own entry on the date of the release of this opinion

.