[Cite as State v. Sanchez Martinez , 2019-Ohio-3350.]

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: August 21, 2019

Joseph T. Deters , Hamilton County Prosecuting Attorney, and Judith Anton Lapp , Assistant Prosecuting Attorney, for Plaintiff-Appellee, John D. Hill, Jr. , for Defendant-Appellant. 

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

STATE OF OHIO, Plaintiff-Appellee,

vs. VICTOR SANCHEZ MARTINEZ, Defendant-Appellant. :

:

:

:

: APPEAL NO. C-180580 TRIAL NO. B-1704913

O P I N I O N.O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 M OCK , Presiding Judge. 

### {¶1} Defendant-appellant Victor Sanchez Martinez (“Sanchez”) appeals from the trial court's October 9, 2018 judg ment entry finding that he violated his community-control sanctions and imposing a sentence of 12 months in prison. For the reasons set forth below, we a ffirm the trial court's judgment. Multiple Community Control Violations Result in Prison Sentence 

### {¶2} On October 12, 2017, Sanchez entered a plea of guilty to one count of failing to provide notice of a change of his address, a felony of the fourth degree in
violation of R.C. 2950.05. The trial cour t accepted that plea, found him guilty, and placed him on community control. One month later, the probation department
notified the trial court that he had violated the terms of his community control. He had failed to report to the probation depa rtment on October 31. A letter was then sent to him, instructing him to report on November 15. On November 15, Sanchez again failed to report to the probation de partment. Additionally, Sanchez had failed to make any payments toward his court co sts. On December 27, the trial court conducted a hearing and found that Sanchez had violated the terms of his community control, but allowed him to continue on community control. 

### {¶3} On June 26, 2018, the probation department filed a notice with the trial court that Sanchez had again violated the terms of his community control. The report detailed that he had failed to appear in another case, resulting in a capias being issued, had been convicted of four new misdemeanor offenses, had failed to notify the probation department of a change of his residence, had again failed to report to the probation department as instructed on two additional occasions, and had failed to make any payments toward his court costs.O HIO F IRST D ISTRICT C OURT OF A PPEALS

3 

### {¶4} On October 9, the trial court cond ucted a hearing on the notice. During the course of the hearing, the tria l court learned that Sanchez’s new offenses stemmed mainly from his failure to cooperate with law enforcement when he encountered them. In January, Sanchez was at a friend’s house when the police arrived and Sanchez gave the officer a fake name before fleeing from the home. This resulted in a charge of obstructing official business. In February, a police officer attempted to pull him over. Sanchez pulled into a parking lot, but drove away when the officer approached his car. This resulted in a charge of failure to comply with an order or signal of a police officer. In March, Sanchez attacked two employees in a
restaurant while he was intoxicated. This resulted in two charges of misdemeanor
assault. 

### {¶5} During the course of the hearing, the trial court became increasingly frustrated with Sanchez’s answers, noting “You’re avoiding answering my direct questions, which tells me ther e’s a hell of a lot more there than what you are telling me.” The trial court then reviewed the violation report from the previous December. After considering the informatio n, the trial court concluded that “Mr. Sanchez, you’re just, basically, ignoring the whole process.” The trial court then revoked Sanchez’s community control and sentenced him to 12 months in prison. 

### {¶6} In his first assignment of error, Sanchez claims that the trial court should have imposed a sentence of 180 days instead of 12 months. In his second assignment of error, he claims that counse l was ineffective for failing to argue that the 12-month sentence was contrary to law. We will address the assignments together.O HIO F IRST D ISTRICT C OURT OF A PPEALS

4 A Pattern of Conduct Amounting to a Failure

to Comply with the Conditions as a Whole 

### {¶7} In 2017, the General Assembly substantially modified Ohio’s sentencing scheme for community-control violations where the underlying offense is a felony of the fourth or fifth degree. R.C. 2929.15 now significantly narrows the discretion trial courts may exercise when sentencing a defendant after finding a violation of community control. If the defendant either violates the conditions of community control, or violates the law, or leaves the state without permission, the trial court may impose a prison sentence. See R.C. 2929.15(B)(1)(c). But the trial court is limited to imposing only 180 days for a felony of the fourth degree “if the prison term is imposed for any technical vi olation of the conditions of a community control sanction * * * or for any violation of law * * * that consists of a new criminal offense and that is not a felony.” R.C. 2929.15(B)(1)(c)(ii). 

### {¶8} Sanchez argues that his violations constituted technical violations and misdemeanor offenses, and therefore he could only be sentenced to 180 days in prison. This court has recently addressed the application of the 2017 change to the community-control-violation sentencing statute and the definition of a “technical
violation.” See State v. Kernall , 1st Dist. Hamilton No. C-180613, 2019-Ohio-3070. We agree with the Fifth, Second, and Si xth Districts to the extent that a “technical violation” is a violation of any requirement which merely facilitates community-control supervision. See [ State v. Nelson , 2d Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763,] ¶ 32. However, we also agree with the Eighth District 's rationale that an offender's violations of community control can be considered under the totality of the circumstances. “[T]he Genera l Assembly did not intend for individuals who [never repo rt to probation or who fail to engage in anyO HIO F IRST D ISTRICT C OURT OF A PPEALS

5 of the conditions of community control] to be considered ‘technical’
violators.” State v. Stanko , 8th Dist. Cuyahoga No. 106886, 2019- Ohio-152, ¶ 10. Therefore, the inqu iry under R.C. 2929.15(B)(1)(c) is two-fold. An offender's signific ant failure to comply with any substantive rehabilitative requirem ent which was specifically-tailored to the offender's underlying conduc t is not a technical violation for purposes of R.C. 2929.15(B)(1)(c). In addition, if the offender engages in a pattern of conduct that demonstr ates a failure to comply with the community-control sanction as a whole, this is also not a technical
violation.
Id. at ¶ 18. Thus, a trial court may sentence a defendant to a term greater than that
set forth in either of the subsections of R.C. 2929.15(B)(1)(c) if the trial court concludes that the defendant either (1) violated a condition that was a substantive rehabilitative requirement specifically tail ored to the offender’s conduct, or (2) engaged in a pattern of conduct that demo nstrated a failure to comply with the community-control sanction as a whole. 

### {¶9} In this case, the individual acts th at constituted the several violations of Sanchez’s community control were either technical violations or new criminal
conduct that did not constitute felonies. And none of his conduct resulted in a
violation of a substantive re habilitative requirement which was specifically-tailored to his underlying conduct. As a result, we are left to consider whether his conduct amounted to “a pattern of conduct that de monstrates a failure to comply with the community-control sanction as a whole.” 

### {¶10} In State v. Kernall , this court addressed the same question, finding that Kernall had engaged in such a pattern of conduct.O HIO F IRST D ISTRICT C OURT OF A PPEALS

6 In addition to failing to report to substance-abuse treatment, Kernall also failed to report to the prob ation department on two separate occasions, failed to show proof of employment verification, and obtained five new misdemeanor capiases. While each of these violations alone would likely constitu te either a technical violation or a
violation of law that is not a felo ny, the cumulative effect of the violations amounts to a pattern of conduct that demonstrates a failure to comply with the community- control sanction as a whole. Kernall, 1st Dist. Hamilton No. C-180613, 2019-Ohio-3070, at ¶ 20. 

### {¶11} In this case, Sanchez failed to noti fy the probation department of his new address, he failed to report to th e probation department on two separate occasions, he picked up four new misdemeanor convictions, and he failed to appear
for court for one of those. And two of the four offenses involved the failure to cooperate with law enforcement—in one instance he gave a police officer a fake name and fled, and in a second he fled from another officer who attempted to pull him over. And during the hearing on his communi ty-control violations, he was evasive in
his answers to the tria l court. The overall pattern th at Sanchez established was that he was unwilling to cooperate with the requirements placed upon him by others in authority—not by police officers, not by pr obation officers, and not by courts. In summing up the matter, the trial court told him that “you’re just, basically, ignoring the whole process.” Even without the guidance of this court in Kernall , the trial court, in essence, concluded that “the cumulative effect of the violations amount[ed] to a pattern of conduct that demonstrate[d] a failure to comply with the communitycontrol sanction as a whole.” And the record amply supports this conclusion.O HIO F IRST D ISTRICT C OURT OF A PPEALS

7 Conclusion 

### {¶12} Sanchez was not entitled to the 180-day limitation under R.C. 2929.15(B)(1)(c)(ii). And since he was not entitled to the limita tion, counsel was not ineffective for failing to make that argument below. See State v. Black , 1st Dist. Hamilton No. C-100357, 2011-Ohio-1330, ¶ 23 (the failure to make a futile argument is not ineffective assistance of counsel). We overrule his two assignments of error and affirm the judgment of the trial court. Judgment affirmed.
B ERGERON and C ROUSE , JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.