[Cite as State v. King,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 19CA10 : vs. : : DECISION AND STEPHEN KING, JR., : JUDGMENT ENTRY : Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. _____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from a judgment finding Appellant, Stephen King, Jr.,

guilty of violating the terms of his community control, which he was placed on

after being granted judicial release from prison on March 16, 2017. On appeal,

King contends that the record does not support the sentence the trial court imposed

for a violation of the conditions of judicial release and he argues the sentence is

therefore contrary to law. Because we find the trial court properly reserved the

right to impose the balance of King’s prison term consistent with R.C. 2929.20(K)

at the time King was granted judicial release, we conclude the sentence imposed by Lawrence App. No. 19CA10 2

the trial court is supported by the record and is not contrary to law. Accordingly,

we find no merit to King’s sole assignment of error and the judgment of the trial

court is affirmed.

FACTS

{¶2} King pled guilty to one fourth-degree felony count of trafficking in

drugs and one fourth-degree felony count of improper handling of a firearm in a

motor vehicle on June 1, 2016.1 He was sentenced to a seventeen-month prison

term for trafficking in drugs, a seventeen-month prison term for improper handling

of a firearm, and a twelve-month prison term for the firearm specification

associated with the drug trafficking charge. The sentences were ordered to be

served consecutively for a total of forty-six months. On February 24, 2017, King

filed a motion for judicial release, which was granted by the trial court on March 9,

2017.

{¶3} Although we do not have the hearing transcript from the judicial

release hearing that was held on March 7, 2017, the trial court’s judgment entry

granting judicial release ordered King to be released from prison effective March

16, 2017, and ordered him to serve a four-year period of community control under

intensive supervision. Further, the order provided that the trial court retained

1 The trafficking in drugs count of the indictment contained two specifications, one of which was a firearm specification. King pled guilty to both specifications as well. Lawrence App. No. 19CA10 3

jurisdiction to sentence King to the balance of the original prison term, which was

two years and ten months, should he violate the terms and conditions of his

community control. King’s terms and conditions of community control required

that he report, in person, to the Bureau of Community Corrections once a week.

{¶4} A written order for King’s arrest was thereafter filed on October 18,

2017, which stated that King may have violated the terms of his

“Probation/Community Control.” When King’s name appeared on the Lawrence

County jail list on January 25, 2019, the Bureau of Community Corrections placed

a hold on him and a capias was issued on January 29, 2019. On February 11, 2019,

the State filed a motion seeking an order revoking King’s “Community Control

Sanctions/Intensive Supervised Probation” due to the fact that King had violated

the terms and conditions as established by the court. A Bureau of Community

Corrections report that was attached to the motion stated that King had last

reported to the bureau on June 1, 2017.

{¶5} A revocation hearing was held on February 27, 2019. The trial court

found King guilty of violating the terms and conditions of his community

control/intensive supervised probation by judgment entry dated March 4, 2019, and

it sentenced him to two years and ten months in prison. It is from this judgment

that King now brings his timely appeal, setting forth a single assignment of error

for our review. Lawrence App. No. 19CA10 4

ASSIGNMENT OF ERROR

I. “THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S SENTENCE OF APPELLANT FOR A VIOLATION OF THE CONDITIONS OF JUDICIAL RELEASE, AND THE SENTENCE IS CONTRARY TO LAW.”

{¶6} In his sole assignment of error, Appellant contends the sentence

imposed by the trial court is contrary to law because it is not supported by the

record. More specifically, Appellant contends that the term “violation” contained

in R.C. 2929.20(K) refers only to a new offense that is a violation of law, and that

because his violation of community control – failure to report – was not a new

offense it can only be punished under R.C. 2929.15 as a “technical violation” of

community control. Thus, King contends the trial court erred in imposing a thirty-

four-month prison sentence. The State properly notes that “[t]his case involves the

reimposition of the balance of a conditionally suspended prison sentence following

a hearing and finding of the trial court that [King] violated the terms of his judicial

release.” Because this matter involves judicial release, the State contends it is

governed by R.C. 2929.20, rather than R.C. 2929.15. Therefore, the State argues

the trial court properly imposed the balance of the conditionally suspended prison

term in accordance with R.C. 2929.20(K) and committed no error in doing so. For

the following reasons, we agree with the State.

Standard of Review Lawrence App. No. 19CA10 5

{¶7} R.C. 2953.08(G)(2) defines appellate review of felony sentences and

provides, in relevant part, as follows:

The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The 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. The

appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action

authorized by this division if it clearly and convincingly finds either of

the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or

(C)(4) of section 2929.14, or division (I) of section 2929.20 of the

Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶8} “[A]n appellate court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that the record does

not support the trial court's findings under relevant statutes or that the sentence is Lawrence App. No. 19CA10 6

otherwise contrary to law.” State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-

Ohio-4458 ¶ 7, quoting State v. Marcum,

,

,

, ¶ 23. This is a deferential standard. Id. at 23. Furthermore,

“appellate courts may not apply the abuse-of-discretion standard in sentencing-

term challenges.” Id. at ¶ 23. Additionally, although R.C. 2953.08(G) does not

mention R.C. 2929.11 or 2929.12, the Supreme Court of Ohio has determined that

the same standard of review applies to findings made under those statutes. Id. at

¶ 23 (stating that “it is fully consistent for appellate courts to review those

sentences that are imposed solely after consideration of the factors in R.C. 2929.11

and 2929.12 under a standard that is equally deferential to the sentencing court,”

meaning that “an appellate court may vacate or modify any sentence that is not

clearly and convincingly contrary to law only if the appellate court finds by clear

and convincing evidence that the record does not support the sentence”).

“Clear and convincing evidence is that measure or degree of proof

which is more than a mere ‘preponderance of the evidence,’ but not to

the extent of such certainty as is required ‘beyond a reasonable doubt’

in criminal cases, and which will produce in the mind of the trier of

facts a firm belief or conviction as to the facts sought to be established.”

State v. Marcum at ¶ 22, quoting Cross v. Ledford,

,

, paragraph three of the syllabus (1954). Lawrence App. No. 19CA10 7

{¶9} Further, as we observed in State v. Pierce, supra, the Eighth District

Court of Appeals has noted as follows:

“It is important to understand that the ‘clear and convincing’ standard

applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.

2953.08(G)(2) makes it clear that ‘[t]he appellate court's standard for

review is not whether the sentencing court abused its discretion.’ As a

practical consideration, this means that appellate courts are prohibited

from substituting their judgment for that of the trial judge.

It is also important to understand that the clear and convincing standard

used by R.C. 2953.08(G)(2) is written in the negative. It does not say

that the trial judge must have clear and convincing evidence to support

its findings. Instead, it is the court of appeals that must clearly and

convincingly find that the record does not support the court's findings.

In other words, the restriction is on the appellate court, not the trial

judge. This is an extremely deferential standard of review.”

Pierce, supra, at ¶ 8, quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-

Ohio-1891,

, ¶ 20-21.

Legal Analysis Lawrence App. No. 19CA10 8

{¶10} As set forth above, King was granted judicial release pursuant to R.C.

2929.20 less than a year after he was sentenced to a forty-six month prison term.

The record indicates that upon release he was placed on community control in

accordance with R.C. 2929.20(K), which provides as follows:

If the court grants a motion for judicial release under this section, the

court shall order the release of the eligible offender, shall place the

eligible offender under an appropriate community control sanction,

under appropriate conditions, and under the supervision of the

department of probation serving the court and shall reserve the right to

reimpose the sentence that it reduced if the offender violates the

sanction. If the court reimposes the reduced sentence, it may do so

either concurrently with, or consecutive to, any new sentence imposed

upon the eligible offender as a result of the violation that is a new

offense.

It appears from the record that after King was released from prison on March 16,

2017, he only reported as required until June 1, 2017, despite the fact that the

conditions of his community control required him to report weekly. This violation

served as the basis for the revocation of his community control. He testified during

his revocation hearing that he didn’t report out of embarrassment because he had

become addicted to heroin. Lawrence App. No. 19CA10 9

{¶11} On appeal, King contends that the trial court erred by imposing a

thirty-four-month prison sentence for what he characterizes as simply a “technical

violation” of his community control. In support, he argues that the term

“violation” contained in R.C. 2929.20(K) is undefined and ambiguous. He further

argues that the term violation in section (K) refers only to a new offense that is a

violation of law, based upon the last sentence in that section which refers to a “new

offense.” Thus, he argues that violations that are not new offenses, such as failure

to report, can only be punished as technical violations under R.C. 2929.15, which

governs community control, and which provides, in pertinent part, as follows:

(B)(1) 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:

(a) A longer time under the same sanction if the total time under the

sanctions does not exceed the five-year limit specified in division (A)

of this section;

(b) A more restrictive sanction under section 2929.16, 2929.17, or

2929.18 of the Revised Code, including but not limited to, a new term

in a community-based correctional facility, halfway house, or jail

pursuant to division (A)(6) of section 2929.16 of the Revised Code; Lawrence App. No. 19CA10 10

(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:

(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 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.

(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. (Emphasis added).

Thus, if King’s community control violation was considered a technical violation

under R.C. 2929.15(B)(1)(c)(2), the most he could be sentenced to is one hundred

eighty days in prison. Lawrence App. No. 19CA10 11

{¶12} However, as indicated above, because King was placed on community

control after being granted judicial release from prison, R.C. 2929.20 governs the

terms of his release rather than R.C. 2929.15. As this Court explained in State v.

Perry, when an appellant is not originally sentenced to a term of community

control, but instead is sentenced to a prison term and then granted judicial release

and placed on community control, R.C. 2929.20 governs the revocation of judicial

release, rather than R.C. 2929.15. State v. Perry, 4th Dist. Athens No. 13CA12,

. Further, R.C. 2929.20 provides in section (K) that upon

granting judicial release, the court “shall reserve the right to reimpose the sentence

that it reduced if the offender violates the sanction.” Here, although we were not

provided with the transcript from the judicial release hearing, the judgment entry

granting judicial release indicates the trial court properly reserved jurisdiction to

sentence King to the balance of the original prison term, which was two years and

ten months.

{¶13} As further explained in Perry, “the rules dealing with a violation of an

original sentence of community control should not be confused with those dealing

with a violation of community control while on judicial release.

. As explained in more detail by the Third District Court of Appeals:

“[T]he rules dealing with a violation of an original sentence of

community control (R.C. 2929.15) should not be confused with the Lawrence App. No. 19CA10 12

sections of the Revised Code regarding early judicial release (R.C.

2929.20) even though the language of R.C. 2929.20(I) [now (K)]

contains the term ‘community control’ in reference to the status of an

offender when granted early judicial release. * * * Under R.C. 2929.15,

a defendant's original sentence is community control and he will not

receive a term of incarceration unless he violates the terms of his

community control[;] whereas, when a defendant is granted judicial

release under R.C. 2929.20, he has already served a period of

incarceration, and the remainder of that prison sentence is suspended

pending either the successful completion of a period of community

control or the defendant's violation of a community control sanction.”

State v. Jones, 3d Dist. Mercer Nos. 10-07-26 & 10-07-27,

(citations omitted); see also State v. Jenkins, 4th Dist. Scioto No. 10CA3389,

; State v.

; State v.

; see also State v. Justice, 4th Dist. Lawrence No. 12CA11,

(noting that “[c]ourts have consistently found that R.C. 2929.15 and R.C.

2929.20 are independent statutes and serve different purposes[]”).

{¶14} Further, we reject King’s argument that the term “violation”

contained in R.C. 2929.20(K) is either ambiguous, or that it only refers to a new

offense that is a violation of law. R.C. 2929.20(K) provides that upon revoking Lawrence App. No. 19CA10 13

judicial release “[i]f the court reimposes the reduced sentence, it may do so either

concurrently with, or consecutive to, any new sentence imposed upon the eligible

offender as a result of the violation that is a new offense.” Thus, the trial court is

not limited to reimposing the balance of the reduced sentence only in the event of a

violation that constitutes a new offense. Simply because R.C. 2929.15 was revised

to draw a distinction between technical and non-technical violations does not

render the term “violation” in R.C. 2929.20 ambiguous. With respect to the

provision in R.C. 2929.20(K) regarding violations that are new offenses, the Third

District Court of Appeals has observed that “ ‘[i]t is error for a trial court, after

revoking judicial release, to impose a greater or lesser sentence than the original

sentence.’ ” State v. Rutschilling, 3d Dist. Nos. 10-17-06 and 10-17-07, 2017-

Ohio-9252, ¶ 8, quoting State v. Thompson, 3d Dist. Crawford Nos. 3-16-01, 3-16-

12,

. Notably, the Rutschilling decision was released after

R.C. 2929.15 was revised to distinguish between technical and non-technical

violations. Rutschilling, nevertheless, applied R.C. 2929.20 to the revocation of

judicial release. See also State v. Sinkfield, 8th Dist. Cuyahoga No. 106491, 2018-

Ohio-2939, ¶ 1, 5 (affirming the revocation of judicial release for failure to report

as required by the rules and regulations of the probation department, after R.C.

2929.15 was revised); State v. Arnold, 8th Dist. Cuyahoga No. 107466, 2019-Ohio-

254, ¶ 16, 19 (applying R.C. 2929.20(K) upon revocation of judicial release for a Lawrence App. No. 19CA10 14

violation of community control that consisted of being unsuccessfully discharged

from a treatment program). Furthermore, in State v. Arnold, the Eighth District

Court of Appeals noted that “although the trial court is required to impose ‘an

appropriate community control sanction,’ the fact remains that the offender is

serving judicial release, not community control.” Arnold at ¶ 20.

{¶15} Furthermore, as explained in State v. Hardy, 8th Dist. Cuyahoga No.

83572,

, ¶ 6-7:

The plain, unambiguous language set forth in R.C. 2929.20(I) [now

R.C. 2929.20(K)] permits a trial court to merely reinstate the reduced,

original prison term upon a violation of the conditions of early judicial

release. Indeed, the offender can only experience an increase in prison

time if the court decides to order a consecutive sentence upon

conviction for a new offense stemming from the violation. See R.C.

2929.20(I) [now R.C. 2929.20(K)]; State v. Dalton,

,

,

; State v. Wiley,

,

,

; State v. McConnell,

,

,

.

Because Hardy was not before the trial court on a new conviction

stemming from his violation of judicial release, the trial court was Lawrence App. No. 19CA10 15

limited to reimposing the reduced, original concurrent prison terms of

18 and 12 months, with credit to Hardy for time already served.

Thus, the Hardy court applied the statute to simply provide the trial court with the

option of reimposing a reduced sentence consecutively to a sentence imposed for a

new offense, rather than limiting the court to reimposing a reduced sentence only if

the violation constituted a new offense.

{¶16} Based upon the foregoing, we cannot conclude that the trial court

erred in imposing the balance of King’s prison sentence of two years and ten

months, or that the sentence imposed was contrary to law. Thus, we find no merit

to King’s sole assignment of error. Accordingly, the decision of the trial court is

affirmed.

JUDGMENT AFFIRMED. Lawrence App. No. 19CA10 16

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. & Hess, J.: Concur in Judgment and Opinion. For the Court, __________________________________ Jason P. Smith Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.