[Cite as State v. Miller,
2021-Ohio-286.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2020 CA 00024
TRISHA MILLER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County
Court of Common Pleas, Case No. 2015-
CR-360
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 2, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK A. BALAZIK THOMAS R. ELWING
Assistant Prosecuting Attorney 60 West Columbus Street
Fairfield County Prosecutor’s Office Pickerington, OH 43147
239 West Main Street, Ste. 101
Lancaster, OH 43130
[Cite as State v. Miller, 2021-Ohio-286.]
Gwin, P.J.
{¶1} Appellant Trisha Miller appeals the April 23, 2020 judgment entry of the
Fairfield County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On September 25, 2015, appellant was charged with two counts of grand
theft under R.C. 2913.02, felonies of the fourth degree, and one count of tampering with
records under R.C. 2913.42, a felony of the third degree. Pursuant to a negotiated plea
agreement, appellant agreed to plead guilty to the two counts of grand theft with appellee
dismissing the tampering with records count. Appellee and appellant agreed to a jointly
recommended sentence of community control with 16-month concurrent prison terms
reserved if appellant violated community control.
{¶3} On May 12, 2016, the trial court issued a judgment entry of sentence. The
trial court adopted the jointly recommended sentence, sentenced appellant to community
control for a period of five years, and included an order to make $250 monthly restitution
payments. In the judgment entry, the trial court imposed these specific conditions of
community control: report to the community control department monthly; not consume
any alcohol or illegal drugs; submit to random drug testing; not ingest or be injected with
any drug of abuse; maintain employment; abide by all laws; and make reasonable
payments of $250 per month to Fairfield County Job and Family Services toward a
restitution amount of $98,685.20 for unlawfully received food assistance and Medicaid
benefits.
{¶4} On September 27, 2016, a probation violation warrant was issued for
appellant’s arrest for failing to report to her probation officer since July of 2016 and leaving
Fairfield County, Case No. 2020 CA 00024 3
the state. Appellant was arrested on October 11, 2016. As a sanction for the probation
violations, appellant served thirty days in the Fairfield County Jail.
{¶5} Appellant’s probation officer filed a motion to revoke community control on
March 22, 2017. The probation officer stated appellant violated the following terms and
conditions of her community control: left the State of Ohio without permission; inquired
about numerous cash advance loans through different lenders over the internet while
using her ex-husband’s and daughters’ information to obtain those cash advances without
their permission; having direct contact with a convicted felon; failed to report to her
probation officer; failed to make monthly restitution payments; failed to maintain sobriety;
and operated a motor vehicle without permission.
{¶6} The trial court held a hearing on the motion to revoke on April 12, 2017.
Appellant admitted to violating her community control by leaving the state without
permission, failing to maintain good behavior, failing to report to probation, operating a
vehicle without permission, and failing to pay restitution. The trial court imposed the
previously reserved 16-month concurrent prison terms in a judgment entry on April 12,
2017. On June 8, 2017, appellant was granted judicial release and was returned to
community control.
{¶7} On September 23, 2019, a probation violation warrant was issued for
appellant’s arrest. Appellant was arrested on March 3, 2020. Appellant’s probation officer
stated appellant violated the following terms of her community control: failed to obey the
law; failed to report to the community control department; failed to maintain sobriety; and
failed to pay restitution.
Fairfield County, Case No. 2020 CA 00024 4
{¶8} The trial court held a hearing on the motion to revoke on April 22, 2020.
Appellant stipulated that she violated the following terms of her community control: failed
to maintain good behavior and/or obey the law by being found guilty of misuse of credit
cards, a misdemeanor of the first degree, on July 19, 2019, and being found guilty of
falsification and driving under suspension on March 2, 2020; failed to report to the
community control department as ordered by failing to report in February of 2019 and
again in September of 2019; failed to maintain total sobriety by posting pictures of herself
on Facebook on May 1, 2019, May 4, 2019, and May 9, 2019; and failed to pay the $250
monthly restitution since February 27, 2018.
{¶9} At the hearing, counsel for appellant argued the violations were either
technical in nature or misdemeanor violations subject to the 180-day sentence limitation.
{¶10} During the sentencing hearing, the trial court made the following findings:
So, the Court finds, first of all, that this is a non-technical violation.
Why is that? Well, the Defendant was AWOL, from, let’s see, February
22nd to when she was arrested September 19th. She had a health issue,
served one day in jail, and then she went AWOL again. In over a year’s
time, 13-month period, the Defendant was arrested once, was released
because of a health issue, and then failed to report. So she had over a year
in non-reporting in a 13-month period.
Also, the Court finds the Defendant has a new criminal conviction.
The criminal conviction is a theft-related charge, misuse of credit cards.
Fairfield County, Case No. 2020 CA 00024 5
And because of these two reasons, the Court is finding there is no
non-technical violation – I’m sorry – there is no technical violation. It’s a
non-technical violation.
{¶11} Further, the trial court later stated at the hearing, “The Court can’t do
anything if the Defendant doesn’t report to probation. And she did not report for a
significant time, which makes her violation non-technical, not to mention the new criminal
conviction.”
{¶12} The trial court entered a judgment entry revoking community control on April
23, 2020, finding appellant violated the terms and conditions of her community control.
The trial court ordered appellant to serve the concurrent 16-month prison term, with jail
time credit of 135 days.
{¶13} Appellant appeals the April 23, 2020 judgment entry of the Fairfield County
Court of Common Pleas and assigns the following as error:
{¶14} “I. THE TRIAL COURT’S PRISON SENTENCE IMPOSED FOR
TECHNICAL AND MISDEMEANOR VIOLATIONS OF COMMUNITY CONTROL IS
CONTRARY TO LAW BECAUSE IT EXCEEDS THE 180-DAY LIMITATION UNDER R.C.
2929.15(B)(1)(c)(ii) FOR A FELONY OF THE FOURTH DEGREE.”
I.
{¶15} In her assignment of error, appellant argues the trial court committed error
in imposing a 16-month sentence, as it exceeds the 180-day limitation pursuant to R.C.
2929.15(B)(1)(c)(ii). Appellant specifically contends that, under the totality of the
circumstances, the violations of failing to report, consuming alcohol, and failing to pay
financial sanctions are technical in nature. Further, that these conditions were not
Fairfield County, Case No. 2020 CA 00024 6
specifically tailored to address matters related to her misconduct, nor were they
substantive rehabilitative requirements designed to address a significant factor
contributing to her misconduct.
{¶16} R.C. 2929.15(B)(1)(c)(ii) provides as follows:
If the conditions of a community control sanction 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
upon the violator one or more of the following penalties:
(c) A prison term on the offender pursuant to section 2929.14 of the Revised
Code and division (B)(3) of this section, provided that a prison term imposed
under this division is subject to the following limitations, as applicable:
(ii) 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 offense 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 one hundred eighty days.
{¶17} The Ohio Supreme Court recently addressed the distinction between
technical and non-technical violations of community control in State v. Nelson, ---- N.E.3d
----, 2020-Ohio-3690. The Court held a violation is non-technical if, after 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
Fairfield County, Case No. 2020 CA 00024 7
factor contributing to the defendant’s misconduct.’” Id, quoting State v. Davies, 12th Dist.
Warren No. CA2017-11-156,
2018-Ohio-2672. On the other hand, a violation of
community control is considered technical in nature “when the condition violated is akin
to ‘an administrative requirement facilitating community control supervision.’”
Id.
{¶18} In making the determination of whether the violation was technical or non-
technical, the Court held the trial court was to consider the totality of the circumstances
because there was no one single factor that determined whether a violation was technical
or non-technical. Id. Further, the determination of whether a violation was a technical
violation under R.C. 2929.15(B)(1)(c) does not depend upon whether the conduct at issue
is criminal. Id.; State v. Mannah, 5th Dist. Fairfield No. 17-CA-54,
2019-Ohio-4219. The
statute allows the trial court to use its discretion and “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 matter in which it was violated, as well as other relevant circumstances in
the case.”
Id.
{¶19} We now consider whether appellant’s conduct while on community control
constituted a technical violation under R.C. 2929.15(B)(1)(c). Appellant was convicted
and sentenced for two counts of grand theft, both fourth-degree felonies. The trial court
placed appellant on community control and ordered her to: maintain good behavior; obey
the law; report to the community control department; maintain sobriety; and pay monthly
restitution.
{¶20} Appellant admitted to multiple violations of community control, including the
failure to report, failure to maintain sobriety, failure to obey the law, and failure to pay
monthly restitution. Appellee contends the orders were substantive rehabilitation
Fairfield County, Case No. 2020 CA 00024 8
requirements, which address significant factors contributing to appellant’s past
misconduct.
{¶21} Considering the totality of the circumstances, including the nature of the
community control conditions at issue and the manner in which they were violated, we
agree with the trial court’s determination that appellant’s violations were not technical
violations of the terms of her community control. State v. Meade, 5th Dist. Delaware No.
19 CAA 12 0067, 2020-Ohio-4857 (finding a non-technical violation when the appellant
failed to report and left the state several times); State v. Williams, 12th Dist. Butler No.
CA2020-01-009,
2020-Ohio-5228 (failure to report to probation officer for three years was
a non-technical violation); State v. Neville, 8th Dist. Cuyahoga No. 106885, 2019-Ohio-
151 (appellant’s violation was not a technical violation when he failed to report at all for
three months).
{¶22} In this case, during a thirteen-month period of time, appellant failed to
report to her probation officer for a period of over twelve months. She failed to report on
February 22, 2019, until she was arrested on September 19, 2019, a period of 209 days.
After she served one day in jail, she had a health issue and was released to her doctor’s
care. Appellant was supposed to report to the probation officer after being released from
her doctor’s care, but did not, and failed to report from September 20, 2019, until she was
arrested on March 3, 2020 (165 days). The purpose of reporting to probation was to
supervise appellant to monitor her sobriety, ensure she would repay her victim, and guard
against future financial crimes. No substantive rehabilitative requirements can be met
when the probationer fails to report for an extended period of time.
Fairfield County, Case No. 2020 CA 00024 9
{¶23} Appellant’s violations of the conditions were not technical violations.
Therefore, the 180-day cap on a prison sentence for a technical violation of R.C.
2929.15(B)(1)(c)(ii) does not apply. We find the trial court did not commit error in
sentencing appellant to sixteen months in prison for violations of community control which
were non-technical in nature.
{¶24} Appellant’s assignment of error is overruled.
{¶25} The April 23, 2020 judgment entry of the Fairfield County Court of Common
Pleas is affirmed.
By Gwin, P.J.,
Delaney, J., and
Wise, Earle, J., concur
