[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.
OHIO FIRST DISTRICT COURT OF APPEALS

2 

MOCK, Presiding Judge. 

{¶1} Defendant-appellant Victor Sanchez Martinez (“Sanchez”) appeals 

from the trial court's October 9, 2018 judgment 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 affirm 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 court 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 department 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 department. Additionally, Sanchez had failed 

to make any payments toward his court costs. 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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶4} On October 9, the trial court conducted a hearing on the notice. 

During the course of the hearing, the trial 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 there’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 information, 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 counsel was ineffective for failing to argue that 

the 12-month sentence was contrary to law. We will address the assignments 

together. 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 violation 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 Sixth 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 General Assembly did not intend for 

individuals who [never report to probation or who fail to engage in any 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 inquiry under R.C. 2929.15(B)(1)(c) is 

two-fold. An offender's significant failure to comply with any 

substantive rehabilitative requirement which was specifically-tailored 

to the offender's underlying conduct 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 demonstrates 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 tailored to the offender’s conduct, or (2) 

engaged in a pattern of conduct that demonstrated a failure to comply with the 

community-control sanction as a whole. 

{¶9} In this case, the individual acts that 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 rehabilitative 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 demonstrates 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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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In addition to failing to report to substance-abuse treatment, Kernall 

also failed to report to the probation 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 constitute either a technical violation or a 

violation of law that is not a felony, 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 notify the probation department of his 

new address, he failed to report to the 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 community-control violations, he was evasive in 

his answers to the trial court. The overall pattern that 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 probation 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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 limitation, 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. 

BERGERON and CROUSE, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.