[Cite as State v. Ray, 2023-Ohio-4157.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

GREENE COUNTY

STATE OF OHIO 

 Appellee

v. 

DOUGLAS RAY

 Appellant

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C.A. No. 2023-CA-4

Trial Court Case No. 2020-CR-0352

(Criminal Appeal from Common Pleas 

Court)

. . . . . . . . . . .

O P I N I O N

Rendered on November 17, 2023

. . . . . . . . . . . 

BLAKE P. SOMERS, Attorney for Appellant

 

MEGAN A. HAMMOND, Attorney for Appellee

 . . . . . . . . . . . . .

WELBAUM, P.J.

{¶ 1} Appellant, Douglas Ray, appeals from a judgment of the Greene County 

Court of Common Pleas, which revoked his community control sanctions and sentenced 

him to 30 months in prison for three counts of illegal use of a minor or impaired person in 

nudity-oriented material or performance. For the reasons outlined below, the judgment 

of the trial court will be affirmed as to the revocation of Ray’s community control sanctions.
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However, the 30-month prison sentence imposed by the trial court will be reversed, and 

the matter will be remanded to the trial court for resentencing.

Facts and Course of Proceedings

{¶ 2} On December 10, 2020, 37-year-old Ray pled guilty to three fifth-degreefelony counts of illegal use of a minor or impaired person in nudity-oriented material or 

performance in violation of R.C. 2907.323(A)(3). After Ray entered his guilty pleas, the 

trial court sentenced him to a five-year term of community control sanctions. As part of 

the community control sanctions, the trial court ordered Ray to abide by several 

conditions, including but not limited to the following:

Condition 1: That Ray “will not own control, purchase, or possess any 

* * * dangerous ordinance [sic] or weapons, including * * * 

edged weapons[.]” 

Condition 5: That Ray “will continue to reside at [his] present address 

only changing this address with the prior approval of [his] 

Probation Officer.” 

Condition 14: That Ray “will answer truthfully all inquiries by [his] 

supervising probation officer and follow all orders verbal or 

written given to [him] by [his] supervising probation officer 

or other authorized representatives of the Court or the 

Adult Probation Department.” 

Condition 27: That Ray “will not own, maintain, or operate computer 
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equipment, cell phones, personal data assistants, or any 

other electronic devices capable of connecting to or 

storing data, communications, or images from the internet 

without a declared purpose and the written authorization 

of [his] Probation Officer.” 

Condition 36: That Ray “will not purchase nor possess children’s 

clothing, toys, videos, or games without the knowledge 

and permission of [his] Probation Officer.” 

Judgment Entry (Community Control - Basic Supervision), p. 1-5.

{¶ 3} At Ray’s sentencing hearing and in the corresponding judgment entry, the 

trial court advised Ray that violating his community control sanctions could result in the 

court’s imposition of a longer period of supervision, a more restrictive community control 

sanction, or a 36-month prison term, i.e., 12 months in prison for each count run 

consecutively.

{¶ 4} On October 4, 2022, approximately a year and a half after Ray was 

sentenced, Ray’s probation officer filed a motion/affidavit with the trial court alleging that 

Ray had violated Conditions 1, 14, 27, and 36 of his community control sanctions. On 

October 5, 2022, Ray’s probation officer filed a second motion/affidavit alleging that Ray 

had also violated Condition 5. 

{¶ 5} With respect to Condition 1, the probation officer alleged that on September 

28, 2022, she had found three pocketknives in the driver’s-side door handle of Ray’s

vehicle. With respect to Condition 5, the probation officer alleged that on October 4, 
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2022, she had learned that Ray moved to a new residence without her approval. With 

respect to Condition 14, Ray’s probation officer alleged that on September 28, 2022, Ray 

had lied to her about: (1) his mother dropping him off at his probation appointment that 

day; (2) having a cell phone; and (3) the age of the female companion who rode with him 

to his September 28 probation appointment. With respect to Condition 27, the probation 

officer alleged that on September 28, 2022, she had found a cell phone, cell phone mount, 

and cell phone chargers inside Ray’s vehicle. With respect to Condition 36, Ray’s 

probation officer alleged that on the same day, she had also found two children’s videos 

and Minecraft1 UNO cards inside Ray’s vehicle.

{¶ 6} In response to the foregoing allegations, the trial court issued a capias for 

Ray’s arrest. Ray was thereafter arrested on October 6, 2022. Following his arrest, 

Ray waived his right to a probable cause hearing on the revocation proceedings and the 

matter proceeded to a final evidentiary hearing. At the final hearing, the State presented 

testimony from John Bogard, Gabrielle Deal, and Ray’s probation officer, Latonia Bright. 

The following is a summary of the testimony that was presented at the hearing.

John Bogard

{¶ 7} Bogard testified to owning multiple residential properties in Clark County, 

Ohio, including a residence located on Erter Drive in the city of Springfield. Bogard 

1 Minecraft is a popular video game in which players place and break apart three 

dimensional blocks that represent different materials (wood, dirt, water, and stone). The 

purpose of the game is to build, explore, and survive (if the survival mode is chosen). 

See Schlinsog, Endermen, Creepers, & Copyright: The Bogeymen of User-Generated 

Content in Minecraft, 16 Tul. J. Tech. & Intell. Prop. 185, 187-188 (2013).
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testified that he had leased the Erter Drive residence to Ray and Gabrielle Deal in July 

2022. Although Bogard did not recognize Ray at the evidentiary hearing, he testified that 

he had spoken to Ray during an open house at the Erter Drive residence. Bogard 

testified that Ray and Deal had filled out an application to lease the Erter Drive residence, 

and that he thereafter performed a background check on Ray by calling Ray’s employer. 

After conducting a background check on Ray, Bogard entered into a written lease 

agreement with Ray and Deal for the Erter Drive residence. 

{¶ 8} At the evidentiary hearing, Bogard identified the written lease agreement at

issue. On cross-examination, Bogard acknowledged that Deal and Ray’s signatures on 

the lease agreement appeared to have been written in similar handwriting. Bogard also 

testified that he had not witnessed Ray and Deal sign the lease agreement. In addition, 

Bogard testified that Deal had always paid the monthly rent and that he had never 

received a payment from Ray. Bogard also testified that, after July 2022, there had been

no sign of a male tenant living at the Erter Drive residence.

Gabrielle Deal

{¶ 9} Deal, who was 18 years old at the time of the evidentiary hearing, testified 

that she had met Ray in March 2022 at Clark Lake in Springfield, Ohio. Deal testified 

that she had continued to visit Ray after their initial meeting, but denied ever being in a 

romantic relationship with him. According to Deal, her relationship with Ray was merely 

a friendship.

{¶ 10} Concerning the Erter Drive lease agreement, Deal testified that she had 
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signed Ray’s name on the lease agreement without Ray’s permission. Deal testified that 

she did this because she needed a co-signer and because she did not know anyone else 

in Springfield. Deal also testified that Ray had never spent the night at the Erter Drive 

residence with her and that Ray lived at a residence on Eastham Street in Springfield. 

Deal further testified that she was aware that Ray had been designated a sex offender. 

{¶ 11} Continuing, Deal testified that on September 28, 2022, she had ridden with 

Ray in Ray’s vehicle to an appointment with his probation officer in Xenia, Ohio. In doing 

so, Deal testified that Ray had picked her up at her residence on Erter Drive and then 

driven her to his appointment. Deal claimed that her purpose in accompanying Ray was 

to be able to provide Ray with access to her cell phone in case of an emergency. Deal 

testified that she had stayed in the passenger seat of Ray’s vehicle during the 

appointment until Ray’s probation officer and a police officer approached her and knocked 

on the window.

{¶ 12} Deal testified that the officers searched Ray’s vehicle and confiscated two 

cell phones found therein. According to Deal, the officers took a cell phone that she was 

holding in her hand and a cell phone that had fallen in between the vehicle’s middle 

console and driver’s seat. Deal testified that both of the cell phones belonged to her and 

that she had refused to give the officers the password to either phone.

{¶ 13} Deal also testified that the officers searched her purse and found a knife, 

which she claimed she used for protection. In addition, Deal testified that the officers 

found some multi-tools in Ray’s vehicle that belonged to her as well. Deal testified that 

she used the multi-tools for protection and for “moving storage stuff into [her] house.” 
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Hearing Tr. (Nov. 30, 2022), p. 34.

Latonia Bright

{¶ 14} Bright testified that she was the probation officer assigned to supervise Ray 

and that she had been supervising Ray for nine months. Bright testified that as part of 

Ray’s community control sanctions, Ray was required to maintain his Springfield 

residence on Eastham Street where he lived with his mother. Bright testified that she 

had never been to the residence on Erter Drive to which Ray had allegedly moved. 

{¶ 15} Concerning the events of September 28, 2022, Bright testified that she had 

asked Ray how he had gotten to his probation appointment that day; Ray responded by 

telling her that his mother had dropped him off. Bright also testified that she asked Ray 

whether he had a cell phone, and Ray told her that he did not have one. Bright testified 

that she was suspicious of Ray and therefore asked him if she could search his vehicle. 

Bright testified that Ray responded to her request by walking her to his vehicle, which she 

thereafter searched. Bright testified that her search yielded various items, including 

multiple cell phones. Specifically, Bright testified to finding all the following items in Ray’s 

vehicle:

Three pocket knives, condoms, multiple cell phones, a cell phone 

mount attached to the vent on the driver’s side, Puss in Boots DVD, 

Superman DVD, Minecraft cards, a maroon notebook with names and 

phone numbers and email addresses[ ] along with passwords, a library card, 

fishing equipment, air mattress, a book bag full of male clothes, and Bath 
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and Body Works lotion. 

Hearing Tr. p. 42.

{¶ 16} On cross-examination, Bright clarified that she had found two separate cell 

phones in Ray’s vehicle—one that was in Deal’s possession and one that was underneath 

the driver’s seat of the vehicle. Bright testified that both of the cell phones were 

smartphones with large screens. In addition to finding the cell phones, Bright testified to 

finding a cell phone charger that was plugged into the vehicle’s armrest, and a cell phone 

mount that was located on the driver’s-side vent. 

{¶ 17} Bright testified that, during the search of Ray’s vehicle, Deal had never 

indicated that the cell phone found underneath the driver’s seat belonged to her (Deal). 

Bright also testified that Ray had denied knowing the password to the cell phone found 

underneath the driver’s seat and that Deal had refused to provide a password. Bright 

further testified that when she had asked Ray how old Deal was, Ray told her that Deal 

was 19 years old.

{¶ 18} While discussing the Minecraft cards found in Ray’s vehicle, Ray’s trial 

counsel asked Bright if she knew what Minecraft was. In response, Bright testified that 

she knew Minecraft was a game, but did not know any details about the game or whether 

it was for children. Bright did, however, testify that both DVDs found in the vehicle, i.e. 

Puss in Boots and Superman, were children’s videos. Bright specifically testified that the 

Superman DVD was a cartoon, but she also recognized that Superman items are often 

collected by adults. In addition, Bright testified that the three pocketknives found in Ray’s 

vehicle were not discovered in Deal’s purse, but were located in the driver’s-side door 
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and armrest of the vehicle. Bright also testified that she had not checked the vehicle’s 

registration to determine if Ray owned the vehicle in which the aforementioned items were 

found.

Revocation Decision

{¶ 19} After considering the foregoing testimony, the trial court found that there 

was substantial evidence establishing that Ray had violated the conditions of his 

community control. Specifically, the trial court found that Ray had violated Condition 14 

by lying to his probation officer about: (1) how he had arrived at his September 28th

probation appointment; (2) having a cell phone; and (3) Deal’s age. The trial court also 

found that Ray had violated Condition 27 due to the cell phone found underneath the 

driver’s seat of his vehicle. In addition, the trial court found that Ray had violated 

Condition 36 due to the Puss in Boots DVD and the Minecraft UNO cards found in his 

vehicle. The trial court specifically noted that the violation of Condition 36 was not based 

on the Superman DVD, which the trial court found to be a collectible item. As a result of 

these violations, the trial court revoked Ray’s community control sanctions and 

resentenced Ray for his three fifth-degree-felony counts of illegal use of a minor or 

impaired person in nudity-oriented material or performance. 

Resentencing

{¶ 20} During Ray’s resentencing, the trial court reviewed R.C. 2929.15(B)(1)(c)(i), 

which provides that a prison term for any technical violation of a community control 
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sanction imposed for a fifth-degree felony “shall not exceed 90 days.” Following its 

review of that statutory provision, the trial court determined that the 90-day limitation did 

not apply to Ray because his community control violations were not technical in nature. 

The trial court also found that it had discretion to impose a prison term since “Ray 

previously ha[d] been convicted of or pled guilty to a felony sex offense under Chapter 

2907 of the Revised Code[.]” Sentencing Hearing (Dec. 15, 2022), p. 10. 

{¶ 21} After making those findings, the trial court sentenced Ray to an aggregate 

term of 30 months in prison for his three counts of illegal use of a minor or impaired person 

in nudity-oriented material or performance. In doing so, the trial court imposed a 12-

month prison term for the first count, a 12-month prison term for the second count, a 6-

month prison term for the third count, and ordered all the terms to be served 

consecutively. 

{¶ 22} Ray now appeals from the trial court’s judgment revoking his community 

control sanctions and the resulting 30-month prison sentence. In support of his appeal, 

Ray has raised three assignments of error for this court to review.

First Assignment of Error

{¶ 23} Under his first assignment of error, Ray contends that the trial court erred 

by revoking his community control sanctions. Specifically, Ray claims that the testimony 

presented at the final evidentiary hearing failed to establish that he had violated the 

conditions of his community control. We disagree.

{¶ 24} “The right to continue on community control depends upon compliance with 
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the conditions of community control and is a matter within the sound discretion of the trial 

court.” (Citation omitted.) State v. Eastman, 2d Dist. Clark No. 2020-CA-5, 2021-Ohio392, ¶ 13. “Accordingly, we review the trial court’s revocation of community control for 

an abuse of discretion.” (Citation omitted.) Id. “A trial court abuses its discretion when 

it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation 

omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. 

“An abuse of discretion most often involves an unreasonable decision that is not 

supported by a sound reasoning process.” State v. Pate, 2021-Ohio-1838, 173 N.E.3d 

567, ¶ 36 (2d Dist.), citing AAAA Ents., Inc. v. River Place Community Urban 

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 25} “Because a community control violation hearing is not a criminal trial, the 

State need not prove a violation beyond a reasonable doubt.” State v. Reed, 2d Dist. 

Montgomery No. 29523, 2023-Ohio-1161, ¶ 11, citing State v. Cofer, 2d Dist. Montgomery 

No. 22798, 2009-Ohio-890, ¶ 12. (Other citation omitted.) “ ‘The State need only 

present substantial evidence of a violation of the terms of a defendant’s community 

control.’ ” Id., quoting Cofer at ¶ 12. “Substantial evidence is considered to consist of 

more than a mere scintilla of evidence, but somewhat less than a preponderance.” 

(Citations omitted.) State v. Ohly, 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 

675, ¶ 18 (6th Dist.). Accord State v. Fountain, 2023-Ohio-3111, __ N.E.3d __, ¶ 15 (3d 

Dist.); State v. Backus, 5th Dist. Fairfield No. 2022 CA 0041, 2023-Ohio-3222, ¶ 33.

{¶ 26} When making its substantial-evidence determination the trial court must 

consider the credibility of the witnesses. State v. Shamblin, 3d Dist. Logan No. 8-21-03, 
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2021-Ohio-3784, ¶ 10, citing State v. Miller, 10th Dist. Franklin No. 03AP-1004, 2004-

Ohio-1007, ¶ 10. “Similar to a bench trial, when reaching its decision following an 

evidentiary hearing, the trial court, as the finder of fact, [is] free to believe all, part, or none 

of the testimony of each witness and to draw reasonable inferences from the evidence 

presented.” State v. McGail, 2021-Ohio-231, 167 N.E.3d 70, ¶ 92 (2d Dist.), citing State 

v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28.

{¶ 27} In this case, the testimony presented at the evidentiary hearing established 

that Ray drove to his September 28, 2022 probation appointment in a vehicle that 

contained multiple items that Ray was prohibited from possessing. Deal, who admittedly 

rode with Ray to the probation appointment, testified that the vehicle they were riding in 

was Ray’s. See Hearing Tr. p. 35. In addition, Bright testified that Ray led her to the 

vehicle in question when she asked if she could search his vehicle. Id. at 40. Based on 

this testimony, it was reasonable for the trial court to conclude that the vehicle containing 

the prohibited items belonged to Ray. 

{¶ 28} We also find that it was reasonable for the trial court to conclude that the 

prohibited items inside the vehicle, i.e. the cell phone underneath the driver’s seat, the 

Puss in Boots DVD, and the Minecraft cards, all belonged to Ray, because the testimony 

established that Ray and Deal were the only individuals in Ray’s vehicle when the vehicle 

was searched. Moreover, Deal never testified to owning the Puss in Boots DVD or the 

Minecraft cards.

{¶ 29} To the extent that Ray argues the Minecraft cards are not a child’s game, 

we note that Bright reported in the October 4, 2022 motion/affidavit that the cards in 
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question were Minecraft UNO cards. The fact that Bright testified that she did not know 

whether Minecraft is considered a child’s game is immaterial since the item at issue was

not the actual Minecraft game, but Minecraft UNO cards. Because UNO is a simple card 

game often played by children, it was reasonable for the trial court to conclude that the 

Minecraft UNO cards constituted a child’s game. Regardless, the evidence also 

established that Ray was in possession of a Puss in Boots DVD, which is an animated 

film for children. Accordingly, we conclude that there was substantial evidence 

establishing that Ray had violated Condition 36 of his community control sanctions, which 

prohibited him from possessing children’s toys and videos.

{¶ 30} Although Deal testified to owning the cell phone that was found underneath 

the driver’s seat of Ray’s vehicle, Bright’s testimony indicated that on the day of the 

search, Deal never claimed ownership of that cell phone. Also, the fact that the cell 

phone was located in an area of the vehicle where Ray, the driver, had been sitting, 

suggested that the phone belonged to Ray. It was also significant that Bright reported in 

the October 4, 2022 motion/affidavit that Ray’s wallet was found underneath the driver’s 

seat along with the cell phone. Bright also testified to finding a cell phone mount on the 

driver’s-side vent of Ray’s vehicle, which suggests that Ray had used the cell phone while 

driving. In addition, both Deal and Bright’s testimony established that Deal was holding 

a different cell phone when the officers searched Ray’s vehicle. Based on this 

information, it was reasonable for the trial court to find that the cell phone underneath the 

driver’s seat belonged to Ray and not Deal. In other words, there was substantial 

evidence establishing that Ray had violated Condition 27 of his community control 
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sanctions, which prohibited him from possessing a cell phone.

{¶ 31} In addition to possessing the aforementioned prohibited items, the 

testimony presented at the hearing established that Ray had lied to Bright about how he 

arrived at his probation appointment on September 28, 2022, and about his possession 

of a cell phone. Although the trial court also found that Ray had lied to Bright about 

Deal’s age, we find that there is nothing in the record indicating that Ray knew Deal was 

18 years old as opposed to 19 years old on the day in question. Therefore, it was only 

reasonable for the trial court to conclude that Ray had lied to Bright about how he arrived

at his probation appointment and about his possession of a cell phone. In light of these 

findings, we conclude that there was substantial evidence establishing that Ray had 

violated Condition 14 of his community control sanctions, which required him to truthfully 

answer all inquiries by his probation officer.

{¶ 32} Because there was substantial evidence demonstrating that Ray had 

violated Conditions 14, 27, and 36 of his community control sanctions, we find no abuse 

of discretion in the trial court’s judgment revoking Ray’s community control on those 

grounds. Accordingly, Ray’s first assignment of error is overruled.

Second Assignment of Error

{¶ 33} Under his second assignment of error, Ray challenges the 30-month prison 

sentence imposed by the trial court following its revocation of his community control 

sanctions. Specifically, Ray claims that his prison sentence is contrary to law because 

his community control violation was a technical violation that was limited to a 90-day 
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prison sentence per the terms of R.C. 2929.15(B)(1)(c)(i). Ray also claims that his 

sentence is contrary to law because the trial court relied on inaccurate information 

regarding his criminal history, i.e., that he had a prior conviction for a felony sex offense. 

Ray further claims that the trial court’s findings related to its imposition of consecutive 

sentences were clearly and convincingly unsupported by the record. 

Standard of Review

{¶ 34} Appellate review of felony sentences is governed by R.C. 2953.08(G)(2).

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7. “Under 

that statute, an appellate court may increase, reduce, or modify a sentence, or it may 

vacate the sentence and remand for resentencing, only if it clearly and convincingly finds 

either: (1) the record does not support the sentencing court’s findings under certain 

statutes (including R.C. 2929.14(C)(4), which concerns the imposition of consecutive 

sentences); or (2) the sentence is otherwise contrary to law.” State v. Evans, 2d Dist. 

Champaign No. 2023-CA-10, 2023-Ohio-3656, ¶ 8, citing Marcum at ¶ 9, citing R.C. 

2953.08(G)(2).

{¶ 35} The Supreme Court of Ohio has recognized that “otherwise contrary to law” 

means “ ‘ “in violation of statute or legal regulations at a given time.” ’ ” State v. Bryant, 

168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22, quoting State v. Jones, 163 

Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34, quoting Black’s Law Dictionary

328 (6th Ed.1990). For example, “ ‘[a] sentence is contrary to law when it does not fall 

within the statutory range for the offense or if the trial court fails to consider the purposes 
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and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors 

set forth in R.C. 2929.12.’ ” State v. Dorsey, 2d Dist. Montgomery No. 28747, 2021-

Ohio-76, ¶ 18, quoting State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.). 

A sentence is also contrary to law “when a trial court imposes a sentence based on factors 

or considerations that are extraneous to those that are permitted by R.C. 2929.11 and 

2929.12.” Bryant at ¶ 22.

90-Day Sentence Limitation for Technical Violations of Community Control

{¶ 36} As previously discussed, Ray argues that his 30-month prison sentence is 

contrary to law because the trial court failed to apply the 90-day sentence limitation set 

forth in R.C. 2929.15(B)(1)(c)(i) for technical violations of community control. Ray claims

that the trial court erroneously concluded that his community control violations were 

nontechnical violations that did not warrant applying the 90-day sentence limitation. We 

disagree.

{¶ 37} R.C. 2929.15(B)(1) sets forth the sanctions that may be imposed on an 

offender who violates the terms of his community control sanctions. As relevant to this 

case, R.C. 2929.15(B)(1)(c)(i) provides the following: 

(B)(1) * * * [I]f the conditions of a community control sanction imposed 

for a felony are violated or if the offender violates a law or leaves the state 

without the permission of the court or the offender’s probation officer, the 

sentencing court may impose on the violator one or more of the following 

penalties:
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* * *

(c) A prison term on the offender pursuant to [R.C. 2929.14] and 

[R.C. 2929.15(B)(3)], provided that a prison term imposed under this 

division is subject to the following limitations and rules, as applicable:

(i) 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, the prison term shall not exceed ninety days * * *.

(Emphasis added.) R.C. 2929.15(B)(1)(c)(i).

{¶ 38} In State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, 

the Supreme Court of Ohio explained how to determine whether a community control 

violation is technical or nontechnical in nature, and stated the following:

[T]he 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. * * * [A] violation is “nontechnical” if, considering the totality of 

the circumstances, the violation concerns a condition of community control 

that was “specifically tailored to address” matters related to the defendant’s 

misconduct or if it can be deemed a “substantive rehabilitative requirement 

which addressed a significant factor contributing to” the defendant’s 

misconduct. [State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-

Ohio-2672, ¶ 17, 18]; see also [Black’s Law Dictionary 1463 (6th Ed.1990)] 

(defining “technical” as “[i]mmaterial, not affecting substantial rights, without 

substance”). On the other hand, a violation is “technical” when the 
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condition violated is akin to “an administrative requirement facilitating 

community control supervision.” Davis at ¶ 18; see also [Ballentine’s Legal 

Dictionary and Thesaurus 661 (1995)] (defining “technical” as “[i]nvolved in 

detail or in form rather than in a principle or in substance”). There is no 

single factor that determines whether a violation is technical or 

nontechnical. As indicated above, the 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 well as any other relevant circumstances in the case.

Id. at ¶ 26. 

{¶ 39} When the Supreme Court applied the foregoing principles in Nelson, it held

that a defendant’s “violation of [a] no-contact order was not a ‘technical violation’ of the 

terms of his community control[.]” Id. at ¶ 33. The court reached this conclusion 

because “the no-contact order was ‘specifically tailored to address’ [the defendant’s] 

substance-abuse issues[,]” and “was not a mere ‘administrative requirement facilitating 

community control supervision[,]’ but rather was ‘a substantive rehabilitative requirement 

which addressed a significant factor contributing to’ [the defendant’s] misconduct.” Id.,

quoting Davis at ¶ 17 and ¶ 18. This court similarly held that a defendant’s “failure to 

report and failure to complete his drug and alcohol assessment amounted to nontechnical 

violations, because those conditions were ‘specifically tailored to address matters related 

to the defendant’s misconduct.’ ” Eastman, 2d Dist. Clark No. 2020-CA-5, 2021-Ohio392 at ¶ 22, quoting Nelson at ¶ 26.
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{¶ 40} In this case, when sentencing Ray after his community control violations, 

the trial court stated that “[i]n placing Mr. Ray on Community Control, this Court ordered 

sanctions aimed at addressing his sexual disorder which led to criminal charges.” 

Sentencing Tr. p. 10-11. As previously discussed, Ray was convicted for three counts 

of illegal use of a minor or impaired person in nudity-oriented material or performance in 

violation of R.C. 2907.323(A)(3). The convictions stemmed from law enforcement 

discovering nude images of minors on Ray’s electronic devices.

{¶ 41} Upon review, we find that the conditions of community control that Ray 

violated, particularly his possessing a cell phone and children’s toys and videos, were 

specifically tailored to address matters related to Ray’s misconduct. The conditions Ray 

violated were not mere administrative requirements facilitating Ray’s community control 

supervision, but were substantive rehabilitative requirements that related to aspects of 

Ray’s sexual disorder. Accordingly, the trial court correctly determined that Ray’s 

community control violations were nontechnical. Because Ray’s community control 

violations were nontechnical, the 90-day sentence limitation set forth in R.C. 

2929.15(B)(1)(c)(i) did not apply to Ray. Therefore, Ray’s sentence is not clearly and 

convincingly contrary to law in that respect.

Erroneous Finding Regarding Prior Conviction for Felony Sex Offense

{¶ 42} Ray also contends that his 30-month prison sentence is contrary to law 

because the trial court relied on inaccurate information about his criminal history at 

sentencing. Specifically, Ray claims that the trial court erroneously found that he had a 
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prior conviction for a felony sex offense. 

{¶ 43} The record of the sentencing hearing and the corresponding judgment entry 

establish that the trial court did indeed find that Ray had a prior conviction for a felony sex 

offense under R.C. Chapter 2907. See Sentencing Tr. p. 10; Judgment (Dec. 15, 2022), 

p. 2. The State concedes, and Ray’s presentence investigation report (“PSI”) confirms,

that Ray did not have a prior conviction for a felony sex offense at the time he was 

sentenced. In fact, the PSI indicated that Ray had no prior convictions of any kind other 

than for minor traffic violations. Therefore, the trial court’s finding was clearly erroneous. 

{¶ 44} It is well established that a trial court is required to consider various

sentencing factors set forth in R.C. 2929.12 when imposing a felony sentence, but is not 

required to state any findings regarding those factors on the record. State v. Benedict, 

2d Dist. Greene No. 2020-CA-25, 2021-Ohio-966, ¶ 8. When making a determination 

regarding recidivism, R.C. 2929.12(D)(2) specifically requires the trial court to consider 

whether “the offender has a history of criminal convictions.” Because the trial court found 

that Ray had a prior conviction for a felony sex offense during the sentencing proceedings,

the trial court presumably would have relied on that inaccurate information when 

considering the criminal history factor under R.C. 2929.12(D)(2). 

{¶ 45} Although the Supreme Court of Ohio has made it clear that an “appellate 

court cannot modify or vacate a sentence based on its view that the sentence is not 

supported by the record under R.C. 2929.11 and 2929.12, * * * appellate courts are 

permitted to reverse or modify sentencing decisions that are otherwise contrary to law.” 

State v. Brunson, 171 Ohio St.3d 384, 2022-Ohio-4299, 218 N.E.3d 765, ¶ 69. As 
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previously discussed, “when a trial court imposes a sentence based on factors or 

considerations that are extraneous to those that are permitted by R.C. 2929.11 and 

2929.12, that sentence is contrary to law.” Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 

198 N.E.3d 68, at ¶ 22. 

{¶ 46} In addition, “there is an established federal due process protection against 

a trial court’s reliance on materially false information at sentencing.” State v. Smith, 2d 

Dist. Montgomery Nos. 21463, 22334, 2008-Ohio-6330, ¶ 66, citing Stewart v. Erwin, 503 

F.3d 488 (6th Cir.2007). Accord State v. Joseph, 10th Dist. Franklin Nos. 13AP-752,

13AP-753, 2014-Ohio-2733, ¶ 15. “[R]eviewing courts may vacate sentences as 

violative of due process when the sentencing judge’s comments reveal that the court 

imposed or enhanced the offender’s sentence because of improper considerations such 

as * * * false or unreliable information[.]” State v. Arnett, 88 Ohio St.3d 208, 218, 724 

N.E.2d 793 (2000), citing United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir.1987); 

Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (due process 

violated where “prisoner was sentenced on the basis of assumptions concerning his 

criminal record which were materially untrue”). Accord State v. Hundley, 162 Ohio St.3d 

509, 2020-Ohio-3775, 166 N.E.3d 1066, ¶ 112. 

{¶ 47} In this case, the inaccurate information, i.e., Ray’s having a prior conviction 

for a felony sex offense, was significant given that Ray was being sentenced for three 

counts of illegal use of a minor or impaired person in nudity-oriented material or 

performance (a felony sex offense). The inaccurate information was also significant 

because Ray actually had no prior convictions except for minor traffic violations. 
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Accordingly, the trial court undoubtedly placed significant weight on the inaccurate 

information when it sentenced Ray. Because of this, we find that the trial court relied on 

materially false information at sentencing, which violated Ray’s constitutional right to due 

process and amounted to an impermissible consideration under R.C. 2929.12(D)(2). For 

these reasons, Ray’s sentence is contrary to law.

{¶ 48} Because Ray’s sentence is contrary to law, it must be reversed, and the 

matter must be remanded to the trial court for resentencing using Ray’s accurate criminal 

history. In light of this holding, we need not address whether the trial court’s imposition 

of consecutive sentences under R.C. 2929.14(C)(4) was unsupported by the record, as 

that issue is premature. At Ray’s resentencing, the trial court shall consider Ray’s 

accurate criminal history and other relevant information in the PSI when deciding whether 

to impose consecutive sentences. 

{¶ 49} For the foregoing reasons, Ray’s second assignment of error is sustained 

only as to his argument that his 30-month prison sentence is contrary to law due to the 

trial court’s reliance on inaccurate information about his criminal history at sentencing. 

The other two arguments raised under Ray’s second assignment of error are overruled

or premature in light of our other findings.

Third Assignment of Error

{¶ 50} Under his third assignment of error, Ray contends that he was denied his 

Sixth Amendment right to effective assistance of counsel due to his trial counsel’s failure

to object to the trial court’s inaccurate finding regarding his criminal history at the 
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sentencing hearing and due to counsel’s failure to present evidence showing his lack of 

a criminal history. Ray claims that he was prejudiced by these failures because the trial 

court relied heavily on the inaccurate information when sentencing him. Upon review, 

we find that Ray’s ineffective assistance claim is moot given that we have already 

determined that his sentence is contrary to law and that the matter will be remanded for 

resentencing. 

{¶ 51} Ray’s third assignment of error is overruled as moot.

Conclusion

{¶ 52} The judgment of the trial court is affirmed insofar as it revoked Ray’s 

community control sanctions. The judgment of the trial court is reversed insofar as it 

sentenced Ray to 30 months in prison, and the matter is remanded to the trial court for 

resentencing.

. . . . . . . . . . . . .

EPLEY, J. and HUFFMAN, J., concur.