Violation of a community control order tailored to address behavior that contributes to criminal conduct can lead to prison sentences greater than six months, the Ohio Supreme Court ruled today.

In a 5-2 decision, the Supreme Court ruled that John E. Nelson’s disregard of an order not to have contact with a particular person imposed by his probation officer was more than a technical violation of his community control. A Champaign County court could sentence him to 34 months in prison for his behavior even if the violation was not a criminal offense, the Court concluded.

The decision affirmed a Second District Court of Appeals decision rejecting Nelson’s claim that the maximum prison time he could receive was 180 days.

Writing for the Court majority, Chief Justice Maureen O’Connor explained that while state law does not define a “technical violation” of community control, the Court agreed with appellate court decisions that found “technical” has a different meaning than “noncriminal.” The Court determined that the General Assembly intended to give judges some discretion when faced with more serious violations of community control that do not rise to the level of a crime.

Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the chief justice’s opinion.

In a dissenting opinion, Justice Michael P. Donnelly wrote that in the specific context of community control, parole, and probation, a “technical violation” has a specialized meaning – namely, any violation of a supervision term that is not itself a criminal offense.

Justice Donnelly stated that the majority’s opinion has led to an “absurd result” because Nelson could be ordered to serve less prison time if he committed misdemeanor arson while on community control than talking “to a woman who his supervising officer thinks is bad news.”

Justice Melody J. Stewart joined Justice Donnelly’s opinion.

Repeat Offender Receives Specific Supervision Conditions
Nelson had several prior terms of imprisonment and was on postrelease control for a felony conviction when he was indicted in July 2016 on eight drug and forgery charges. Nelson agreed to plead guilty to four fourth-degree felony counts and was sentenced to four years of community control. The trial court applied several conditions to his community control, including that he obey all federal, state, and local laws; conduct himself as a responsible, law-abiding citizen; and follow all orders from his supervising probation officer or other authorized court or correctional representatives.

In June 2017, Nelson’s supervising officer, Herbert Nicholson, ordered Nelson not to have any contact with a particular person. Nicholson testified that he learned Nelson had been drinking at this person’s house when Nelson got into a dispute with her neighbor.

Nelson had acknowledged he had problem with alcohol, and it was a “gateway to his misconduct.” He also told Nicholson that socializing with this person contributed to his drinking and was contributing to his community control violations. Nicholson said he imposed the no-contact order because he believed the person was a bad influence on Nelson, which put Nelson at risk of violating his community control.

Intoxicated Offender Damages Aunt’s Door
In December 2017, Nelson was staying with his aunt in Urbana, but had left for a few days because she did not allow drinking in the house. On Dec. 23, 2017, Nelson was drinking with the person Nicholson identified in his “no contact” order. He subsequently went back to his aunt’s house. Because he was intoxicated, she told him to leave and come back the next day. Nelson left but soon returned to get clothes because he was cold. He was screaming to be let in, but his aunt refused him entry. He kicked her door, which cracked open about 5 inches. Nelson shut the door and walked away.

His aunt called the police, who arrested Nelson while he was walking down the street by her house. He was convicted in Champaign County Municipal Court of criminal damaging.

The Champaign County Common Pleas Court conducted a community control revocation hearing and found Nelson’s actions violated three of the conditions of his community control: he did not obey all state laws when he caused damage to his aunt’s property; he did not conduct himself as a law-abiding citizen; and he violated the no-contact order by drinking with the person identified by Nicholson.

The court noted that Nelson had been informed that the terms of his plea agreement stated that he would be subjected to 34 months in prison if he violated his community control. It then imposed that sentence.

Nelson appealed to the Second District, arguing that each of his violations constituted either a “technical violation” or a misdemeanor under R.C. 2929.15(B)(c)(ii), and that the maximum prison sentenced he could receive was capped at 180 days. The Second District focused on whether a violation of the no-contact order was a technical violation. It found that the no-contact order was specifically tailored to Nelson after he admitted that drinking was his “main problem” and that being around the person identified by Nicholson while she was drinking contributed to his drinking, which led to his community control violations.

The appeals court found while the violation was not a crime, it was more than a technical violation, and the 180-day cap for technical violations did not apply. Nelson appealed to the Supreme Court, which agreed to hear the case.

Court Interprets Undefined Term
While “technical violation” is not defined in R.C. 2929.15, Chief Justice O’Connor explained that Ohio appellate courts have reasoned the legislature did not intend for the statute to apply to all misconduct that is non-criminal in nature. Had the General Assembly meant to cap the punishment at 180 days for anything that is non-criminal, it would have written the law that way, she wrote.

The Second District relied on two recent appellate decisions, the Twelfth District’s 2018 decision in State v. Davis and the Fifth District’s 2018 decision in State v. Mannah. These decisionsheld that a nontechnical violation includes a condition that is a “substantive rehabilitative requirement which addressed a significant factor contributing to [the defendant’s] criminal conduct,” such as one that is “specifically tailored to address and treat [the defendant’s] substance abuse issues.” Those courts explained a “technical violation” was along the lines of failing to meet an administrative requirement, such as missing a meeting with a parole officer.

“The approach taken in Davis and Mannah . . . enables a practical application of the statute by a trial court. Trial courts are presented with many types of noncriminal community control violations, the severity of which varies greatly,” the majority opinion stated.

The Court explained there is no single factor that determines whether a violation is technical or nontechnical. The law allows “the trial court to engage in a practical assessment of the case before it” and to consider the condition imposed and the manner in which it was violated.

When the trial court revoked Nelson’s community control, it noted Nelson’s disregard for the no-contact order and the risk factor of drinking. The trial court found the violation of the no-contact order led to the actions that resulted in a misdemeanor conviction for kicking his aunt’s door. Because the order was a “substantive rehabilitative requirement,” it was not a technical violation, and the prison sentence was not limited to 180 days, the Court concluded.

Dissent Disputed Violation Distinctions
In his dissent, Justice Donnelly wrote that Nelson’s contact with a friend was not a crime, and the judge did not list her in the no-contact section of Nelson’s community control conditions.  Nelson “violated only the standard condition to follow the orders of a supervising officer” when he disobeyed the officer’s verbal order regarding the friend.  Nelson should not be sentenced to nearly three years in prison for being around his friend just because the officer later claimed “that the verbal order was an important order,” the dissent stated.

Justice Donnelly noted that in the context of parole and probation starting in the 1950s, and then later when states began using community control, the term “technical violation” had a specific definition. He wrote that a technical violation is one that is not a commission of a crime.

He wrote that the statute uses the term “technical violation” to divide community-control violations into two categories: (1) felonies, and (2) misdemeanors or noncriminal violations.  He wrote the majority has created different categories: (1) felonies and “nontechnical” noncriminal violations, and (2) misdemeanors and technical noncriminal violations.  He wrote that the majority allows a judge to send a person to prison for up to six months for “any trivial” community control violation, and for “years upon years” if an offender violates a term that a supervising officer later deems “to be important.”

The dissent stated the interpretation can lead to absurd results, and eviscerates the purpose behind the 180-day sentencing cap, which was meant to lower incarceration costs to Ohio taxpayers by reducing the number of low-level offenders in state prison.

2019-0049. State v. Nelson, Slip Opinion No. 2020-Ohio-3690.

View oral argument video of this case.

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