[Cite as State v. Showalter, 2018-Ohio-5299.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 Appellee, : CASE NO. CA2018-04-023 

 : O P I N I O N 

 - vs - 12/28/2018 

 : 

RICHARD G. SHOWALTER, : 

 Appellant. : 

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2013 CR 000123 

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South 

Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee 

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main 

Street, Batavia, Ohio 45103, for appellant 

 PIPER, J.

{¶ 1} Appellant, Richard Showalter, appeals the sentence imposed by the Clermont 

County Court of Common Pleas after the court revoked his community control. 

{¶ 2} Showalter pled guilty to breaking and entering and cocaine possession and was 

sentenced to community control. Showalter violated the terms of his community control 

twice, and the trial court continued Showalter's community control sanctions on both 
Clermont CA2018-04-023 

 - 2 - 

occasions. However, upon Showalter's third violation of community control, the trial court 

revoked community control and imposed a prison sentence upon him. 

{¶ 3} During sentencing, the trial court determined that Showalter was on community 

control for two fifth-degree felonies and had committed an additional felony offense during 

that time. The trial court therefore found that Showalter was not subject to R.C. 

2929.15(B)(1)(c)(i), which limits a prison sentence to 90 days for a technical violation of 

community control imposed for a fifth-degree felony. The court then sentenced Showalter to 

nine months on each count and ordered the sentences to be served consecutively for an 

aggregate sentence of 18 months. Showalter now appeals his sentence, raising the following 

assignment of error: 

{¶ 4} THE TRIAL COURT ERRED IN FINDING THAT R.C. 2929.15(B)(1)(c)(i) ONLY 

APPLIES TO DEFENDANTS WHO ARE ON COMMUNITY CONTROL FOR ONE FELONY 

OF THE FIFTH DEGREE. 

{¶ 5} Showalter argues in his assignment of error that the trial court erred in 

sentencing him to an 18-month sentence. 

{¶ 6} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences. 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to R.C. 2953.08(G)(2), 

when hearing an appeal of a trial court's felony sentencing decision, "[t]he appellate court 

may increase, reduce, or otherwise modify a sentence that is appealed under this section or 

may vacate the sentence and remand the matter to the sentencing court for resentencing." 

{¶ 7} "The appellate court's standard for review is not whether the sentencing court 

abused its discretion." Marcum at ¶ 9. Instead, R.C. 2953.08(G)(2) provides that an 

appellate court may only increase, reduce, or modify a sentence or may vacate the sentence 

and remand the matter for resentencing if the court finds by clear and convincing evidence 

that the record does not support the sentencing court's findings, or that the sentence is 
Clermont CA2018-04-023 

 - 3 - 

otherwise contrary to law. R.C. 2953.08(G)(2)(a)-(b). 

{¶ 8} A sentence is not "clearly and convincingly contrary to law where the trial court 

considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 

2929.12, properly imposes postrelease control, and sentences the defendant within the 

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8. 

{¶ 9} Essentially, Showalter contends his sentence is contrary to law because the 

trial court sentenced him outside the permissible statutory range since R.C. 

2929.15(B)(1)(c)(i) limits a sentence to 90 days if the defendant violates the conditions of a 

community control sanction imposed for a fifth-degree felony. However, the statute 

specifically 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 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. 

{¶ 10} The trial court made two findings regarding the inapplicability of R.C. 

2929.15(B)(1)(c)(i) to Showalter. First, the trial court found the statutory provision did not 

apply to Showalter because he was on community control for two separate offenses, as 

opposed to a single fifth-degree felony. Second, the statute did not apply to Showalter 

because his violations of community control included his continued use of cocaine, which 

constituted a new felony criminal offense. 

{¶ 11} Showalter argues the trial court erred with respect to the first finding. 

However, we need not determine whether the trial court erred in its interpretation of the 

phrase, "a felony of the fifth degree," as the 90-day exception does not apply to Showalter 

based on the plain language of the statute. State v. Walsson, 12th Dist. Clermont No. 
Clermont CA2018-04-023 

 - 4 - 

CA2018-02-004, 2018-Ohio-4485. 

{¶ 12} R.C. 2929.15(B)(1)(c)(i) provides that a prison term imposed after revocation of 

community control may not exceed 90 days if the violation was "for any technical violation" or 

any "violation of law * * * that consists of a new criminal offense and that is not a felony * * *." 

 (Emphasis added.) Thus, an offender on community control for a fifth-degree felony who 

engages in conduct constituting a new felony offense does not enjoy the benefit of the 90-

day prison term limitation. 

{¶ 13} The record clearly indicates that part of Showalter's violations of his community 

control included his continued use of cocaine. R.C. 2925.11(C)(4)(a) provides that cocaine 

possession constitutes a felony. Thus, Showalter committed a felony while subject to his 

imposed fifth-degree felony community control sanction. Therefore, the prison term limitation 

of R.C. 2929.15(B)(1)(c)(i) is explicitly inapplicable to Showalter and the trial court did not err 

in imposing two consecutive nine-month sentences. 

{¶ 14} Further, we note that the limitations in sentencing to a prison term as found in 

R.C. 2929.15(B)(1)(c)(i) is applicable only if the violation of community control is for "any 

technical violation" of the community control sanction. Here, there was nothing in the record 

to support an argument the trial court considered Showalter's violation to be a "technical 

violation." 

{¶ 15} Since Showalter's violation was not a technical violation and additionally 

because he committed a new felony offense, as determined by the trial court, Showalter's 

sentence is not clearly and convincingly contrary to law. Showalter's sole assignment of error 

is, therefore, overruled. 

{¶ 16} Judgment affirmed. 

 RINGLAND, P.J., and M. POWELL, J., concur.