IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

v.

JOHN EDWARD NELSON,

Defendant-Appellant.

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Sup. Ct. No. 2019-0049

Ct. App. No. 2018-CA-5

On Appeal from the Champaign

County Court of Appeals

Second Appellate District

BRIEF OF AMICUS CURIAE OHIO PROSECUTING ATTORNEYS

ASSOCIATION IN SUPPORT OF APPELLEE STATE OF OHIO

Kevin Talebi (0069198)

Champaign County Prosecutor

Jane Napier (0061426)

Counsel of Record

Assistant Prosecuting Attorney

Champaign County Prosecutor’s Office

200 North Main Street

Urbana, Ohio 43078

Tel: (937) 484-1900

Fax: (937) 481-1901

Counsel for Plaintiff-Appellee

State of Ohio

Paul A. Dobson (0064126)

Wood County Prosecutor

David T. Harold (0072338)

Counsel of Record

Assistant Prosecuting Attorney

Wood County Prosecutor’s Office

One Courthouse Square, Annex

Bowling Green, Ohio 43402

Tel: (419) 354-9250

Fax: (419) 353-2904

Email: dharold@co.wood.oh.us

Counsel for Amicus Curie

Ohio Prosecuting Attorney Association

Peter Galyardt (0085439)

Counsel of Record

Assistant Public Defender

Office of the Ohio Public Defender

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

Tel: (614) 466-5394

Fax: (614) 752-5167

Email: peter.galyardt@opd.ohio.gov

Counsel for Defendant-Appellant

John Edward Nelson

Supreme Court of Ohio Clerk of Court - Filed July 03, 2019 - Case No. 2019-0049

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES………………………….………………… ii

INTRODUCTION………………………………………………………. 1

STATEMENT OF AMICUS INTEREST………………………………. 5

STATEMENT OF THE CASE AND FACTS..…………………………… 6

ARGUMENT…………………………………………………………….. 10

Amicus Curiae’s Proposition of Law: A “non-technical” violation

of a community control condition under R.C. 2929.15(B)(1)(c)(i)

or (ii) does not need to be a new felony in order for the trial court

to impose the balance of a previously reserved prison sentence……11

CONCLUSION………………………………………………………….. 20

CERTIFICATION……………………………………………………….. 21

ii

TABLE OF AUTHORITIES

Cases Page

Cheffins v. Stewart, 825 F.3d 588 (9th Cir. 2016)………………………. 12

Coverdale v. Arkansas-Louisiana Pipe Line Co., 303 U.S. 604,

58 S.Ct. 736, 82 L.Ed. 1043 (1938)…………………………….. 12

Hostar Marine Transport Systems, Inc. v. United States, 592 F.3d 202

(1st Cir. 2010)……………………………………………………. 12

Inmates’ Councilmatic Voice v. Rogers, 541 F.3d 633 (6th Cir. 1976)…. 1, 11

MIB, Inc. v. Tracy, 83 Ohio St.3d 154, 699 N.E.2d 44 (1998)…………. 11

Smith v. Sheldon, Slip.Op.No. 2018-1195, 2019-Ohio-1677…………… 13

State ex rel. Taylor v. Ohio Adult Parole Authority, 66 Ohio St.3d 121,

609 N.E.2d 546 (1993)………………………………………….. 1, 11, 20

State v. Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062,

2018-Ohio-4506………………………………………………… 1, 3, 11, 14

State v. Adams, 2nd Dist. Champaign No. 2018-CA-7, 2018-Ohio-4877. 17

State v. Baker, 8th Dist. Cuyahoga No. 106716, 2018-4027……………. 17

State v. Baker, 12th Dist. Clermont No. CA2018-06-042, 2019-Ohio-2280 15

State v. Barron, 8th District Cuyahoga No. 107775, 2019-Ohio-1447…. 16

State v. Bishop, 12th Dist. Clermont Nos. CA2018-05-031,

CA2018-05-036, 2019-Ohio-592……………………………….. 17

State v. Blake, 4th Dist. Hocking No. 18CA6, 2018-Ohio-5413……….. 1, 3, 11, 15

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837 18

State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228……. 2-4, 11, 14, 16

State v. Catron-Wagner, 8th Dist. Cuyahoga No. 106887, 2019-Ohio-153 2, 4, 11, 16

State v. Cearfoss, 5th Dist. Stark No. 2004CA00085, 2004-Ohio-7310 7

State v. Cozzone, 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-2249 2, 3, 11, 14

State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, __ N.E.3d __....... 18

iii

State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672 2, 3, 11, 15

State v. Eckert, 12th Dist. Clermont No. CA2018-06-038, 2019-Ohio-1289 14

State v. Fisher, 4th Dist. Athens No. 18CA27, 2019-Ohio-2420……….. 1, 11, 15

State v. Ford, 12th Dist. Clermont No. CA2018-07-052, 2019-Ohio-1196 3, 14

State v. Graham, 6th Dist. Wood No. WD-18-021, 2019-Ohio-1485…… 16

State v. Ingledue, 2nd Dist. Clark No. 2018-CA-47, 2019-Ohio-397……. 17

State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.2d 1237 4, 18

State v. Jenkins, 2nd Dist. Champaign No. 2005-CA-22, 2006-Ohio-2639 7

State v. Johnson, 5th Dist. Licking No. 18-CA-37, 2019-Ohio-376……… 2, 11, 14

State v. Jordan, 124 Ohio St.3d 397, 2010-Ohio-281, 922 N.E.2d 951…. 16

State v. Lewis, 4th Dist. Ross No. 18CA3660, 2019-Ohio-2009………… 17

State v. Magee, 6th Dist. Sandusky No. S-18-029, 2019-Ohio-1921…….. 17

State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219…… 2, 3, 11, 15

State v. Martin, 154 Ohio St. 3d 513, 2018-Ohio-3226, 116 N.E.3d 127 11

State v. Masters, 12th Dist. Warren No. CA2018-10-127, 2019-Ohio-1702 17

State v. Morehouse, 5th Dist. Licking No. 18 CA 0036, 2019-Ohio-884… 17

State v. Neal, 12th Dist. Clermont No. CA2018-09-068, 2019-Ohio-2277 15

State v. Nelson, 2nd Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763… 1, 5, 6-8, 15,

19

State v. Neville, 8th Dist. Cuyahoga No. 106885, 2019-Ohio-151……….. 3, 16

State v. Nutter, 4th Dist. Hocking No. 18CA1, 2018-Ohio-5368………… 17

State v. Orzechowski, 6th Dist. Wood No. WD-18-025………………….. 15

State v. Palmer, 2nd Dist. Clark No. 2018-CA-74, 2019-Ohio-1144…….. 3, 14

State v. Pino, 11th Dist. Lake No. 2017-L-171, 2018-Ohio-2825………… 2, 4, 11, 16

iv

State v. Puhl, 6th Dist. Wood No. WD-96-059, 1997 WL 224972,

(May 2, 1997)…………………………………………………….. 4

State v. Randolph, 5th Dist. Fairfield No. 17 CA 53, 2018-Ohio-4651….. 17

State v. Randolph, 5th Dist. Fairfield No. 17 CA 52, 2018-Ohio-4652…… 17

State v. Reyes, 8th Dist. Cuyahoga No. 107323, 2019-Ohio-1127………… 17

State v. Salett, 3rd Dist. Logan No. 8-18-62, 2019-Ohio-2637……………. 15

State v. Schuttera, 5th Dist. Ashland No. 18-COA-007, 2018-Ohio-3305.. 17

State v. Shaffer, 12th Dist. Clermont No. CA2017-12-064,

2018-Ohio-5297…………………………………………………... 3, 14

State v. Showalter, 12th Dist. Clermont No. CA2018-04-023,

2018-Ohio-5299…………………………………………………. 14

State v. Smith, 5th Dist. Ashland No. 18-COA-002, 2018-Ohio-4188…… 17

State v. Stanko, 8th Dist. Cuyahoga No. 106886, 2019-Ohio-152……….. 2, 4, 11, 16

State v. Starr, 12th Dist. Clermont No. CA2018-09-065, 2019-Ohio-2081 15

State v. Stevens, 4th Dist. Vinton No. 18CA712, 2019-Ohio-1838……… 1, 11, 15

State v. Tackett, 6th Dist. Erie No. E-18-040, 2019-Ohio-2253…………. 14

State v. Urban, 5th Dist. Delaware Nos. 18 CAA 09 0066, 18 CA 09 0067,

18 CAA 09 0068, 2019-Ohio-2244………………………………. 16

State v. Vasquez, 5th Dist. Delaware No. 18 CAA 08 0058, 2019-Ohio-136 17

State v. Walsson, 12th Dist. Clermont No. CA2018-02-004,

2018-Ohio-4485…………………………………………………. 3, 14

State v. Whited, 12th Dist. Butler No. CA2018-04-079, 2019-Ohio-18…. 17

State v. Wolfe, 5th District Licking No. 18-CA-60, 2019-Ohio-2294……. 2, 11, 14

Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417,

106 N.E.3d 1239…………………………………………………. 12

v

Statutes

R.C. 2921.34(A)(2)(b)…………………………………………………… 16

R.C. 2925.11(C)…………………………………………………………. 14

R.C. 2929.14…………………………………………………………….. 10, 17

R.C. 2929.15(B)(1)(c)……………………………………………………. passim.

R.C. 2929.19(B)(4)………………………………………………………. 10

R.C. 2967.15(C)(1)……………………………………………………… 16

Miscellaneous

Ballentine’s Legal Dictionary and Thesaurus (1995)………………….. 2, 12

Black’s Law Dictionary (6th Ed. 1990)………………………………… 2, 12

The American Heritage Dictionary of the English Language

(4th Ed. 2000)………………………………………………….. 2, 13

The Chambers Dictionary (13th Ed. 2014)…………………………….. 2, 13

The Oxford English Dictionary, www.oed.com....................................... 2, 12

The Random House Dictionary of the English Language

(2nd Ed. Unabridged 1987)……………………………………… 2, 13

Webster’s Third New International Dictionary (1986)………..………… 2, 12

1

INTRODUCTION

R.C. 2929.15(B)(1)(c)(i) & (ii) does not require that all non-felony community control

violations be classified as “technical”. And while that is what Nelson desires, appellate courts in

Ohio have held quite differently when faced with community control violations that are eligible

to be viewed through the prism of R.C. 2929.15(B)(1)(c). In those cases, courts review the

community control violation based upon the facts surrounding the original rationale for creating

the community control term at the time of the sentencing on the underlying charge and how it

relates to the particular violation or violations at that time. By doing such, appellate courts

interpret the word “technical” to match both this Court’s precedent as well as a number of

dictionary definitions. And that prevailing interpretation should continue.

Over twenty-five years ago, this Court adopted the definition for “technical violation”

from the Sixth Circuit Court of Appeals decision of Inmates’ Councilmatic Voice v. Rogers, 541

F.3d 633, 635 (6th Cir. 1976), fn. 2: “Technical violations are those violations of the terms and

conditions of the parole agreement which are not criminal in nature such as failure to report to

the parole officer, association with known criminals, leaving employment, leaving the State,

etc.” State ex rel. Taylor v. Ohio Adult Parole Authority, 66 Ohio St.3d 121, 124, 609 N.E.2d

546 (1993). The Second District Court of Appeals, here, applied that same definition by

implication. State v. Nelson, 2nd Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763, ¶ 23-32.

That result was logical. In fact, the vast majority of cases—and appellate districts—that

are applying the term “technical violation”, as it relates to R.C. 2929.15(B)(1)(c), utilize the

definition that was already adopted by this Court. See e.g., State v. Fisher, 4th Dist. Athens No.

18CA27, 2019-Ohio-2420, ¶ 26; State v. Stevens, 4th Dist. Vinton No. 18CA712, 2019-Ohio-

1838, ¶ 18; State v. Blake, 4th Dist. Hocking No. 18CA6, 2018-Ohio-5413, ¶ 8; State v. Abner, 4th

2

Dist. Adams Nos. 18CA1061, 18CA1062, 2018-Ohio-4506, ¶ 12; State v. Wolfe, 5th District

Licking No. 18-CA-60, 2019-Ohio-2294, ¶ 11; State v. Johnson, 5th Dist. Licking No. 18-CA-37,

2019-Ohio-376, ¶ 11-12; State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶

9; State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶ 28; State v. Catron-

Wagner, 8th Dist. Cuyahoga No. 106887, 2019-Ohio-153, ¶ 28, 30; State v. Stanko, 8th Dist.

Cuyahoga No. 106886, 2019-Ohio-152, ¶ 9; State v. Pino, 11th Dist. Lake No. 2017-L-171,

2018-Ohio-2825, ¶ 6; State v. Cozzone, 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-2249, ¶

38; State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 16. There is no

need to depart from that much-followed definition now.

It is also noteworthy that this Court’s—and the majority of appellate courts’—adoptive

definition of “technical” comports with numerous dictionary definitions. “Technical” has been

defined in the following ways: “Immaterial, not affecting substantial rights, without substance.”

Black’s Law Dictionary 1463 (6th Ed. 1990); “Involved in detail or in form rather than in a

principle or substance.” Ballentine’s Legal Dictionary and Thesaurus 661 (1995); “Of an

offense: so regarded according to a strict legal interpretation (though minor, accidental, etc.)”

http://www.oed.com; “according to a strict legal interpretation” Webster’s Third New

International Dictionary 2348 (1986); “so considered from a point of view in accordance with a

stringent interpretation of the rules” The Random House Dictionary of the English Language

1950 (2nd Ed. Unabridged 1987); “According to principle; formal rather than practical.” The

American Heritage Dictionary of the English Language 1776 (4th Ed. 2000); “being so by virtue

of a strict application or interpretation of the rules” The Chambers Dictionary 1600 (13th Ed.

2014). So, in other words, “technical”, as it relates to R.C. 2929.15(B)(1)(c), means minor, de

minimis, trivial, inconsequential, trifling, slight, and the like. It is “technically” a violation.

3

That being said, the key question remaining is how the term “technical” is applied to a

violation based upon the specific community control condition at issue in a particular case, and

how that condition came to be such for that particular defendant. In that light, appellate districts

have repeatedly found that a “non-technical” violation existed where a defendant made the

argument that only a “technical” violation had occurred.

Appellate courts have been uniform in finding that testing positive for drugs, the

possession of which are felonies, is not a “technical” violation. State v. Palmer, 2nd Dist. Clark

No. 2018-CA-74, 2019-Ohio-1144, ¶ 4, 11 (methamphetamine & amphetamine); State v. Shaffer,

12th Dist. Clermont No. CA2017-12-064, 2018-Ohio-5297, ¶ 11, 15-16 (methamphetamine &

oxycodone); State v. Ford, 12th Dist. Clermont No. CA2018-07-052, 2019-Ohio-1196, ¶ 3-5, 12-

14 (cocaine); State v. Walsson, 12th Dist. Clermont No. CA2018-02-004, 2018-Ohio-4485, ¶ 13

(heroin & cocaine); State v. Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062, 2018-Ohio-

4506, ¶ 14-16 (heroin); State v. Cozzone, 114 N.E.3d 601, 2018-Ohio-2249 (11th Dist.), ¶ 39

(heroin). And it is immaterial whether that felony is officially charged for the violation to be a

“non-technical” violation. Id. Appellate courts have been uniform in finding that being non-

compliant, leaving prematurely, or unsuccessfully completing a specific program that was

selected and ordered by the court to address either the offender or the offense is not a “technical”

violation. State v. Blake, 4th Dist. Hocking No. 18CA6, 2018-Ohio-5413, ¶ 11; State v. Mannah,

5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 15; State v. Davis, 12th Dist. Warren No.

CA2017-11-156, 2018-Ohio-2672, ¶ 34-, 14, 18. The same holds true for missing a number of

probation appointments. State v. Neville, 8th Dist. Cuyahoga No. 106885, 2019-Ohio-151, ¶ 44,

48-49. Finally, absconding is not a “technical” violation. State v. Calhoun, 6th Dist. Wood No.

WD-17-067, 2019-Ohio-228, ¶ 32-33.

4

In fact, “technical” violations have only been found by appellate courts in situations

where the community control violations were administrative or isolated—traditionally a one-time

failure of a condition involving alcohol. State v. Pino, 11th Dist. Lake No. 2017-L-171, 2018-

Ohio-2825, ¶ 3-4, 14 (tested positive for alcohol in his system); State v. Catron-Wagner, 8th Dist.

Cuyahoga No. 106887, 2019-Ohio-153, ¶ 39 (tested positive for alcohol & improperly completed

AA sheets); State v. Stanko, 8th Dist. Cuyahoga No. 106886, 2019-Ohio-152, ¶ 11 (tested

positive for alcohol and missed one AA meeting). That is not the situation here.

In addition, the uniform approach statewide finds that “non-felony conduct [is] not

dispositive of the intended definition of ‘technical violation’ of R.C. 2929.15(B)(1)(c).” State v.

Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶ 30; See also, Id., at ¶ 12-13, 27-29.

Rather, the court’s broad discretion to impose a sentence for a community control violation is

viewed “under the totality of the circumstances”. Id., at ¶ 30. In that regard, “a willful violation

of the conditions of a probation sanction [is] not a technical violation.” Id., at ¶ 32, citing State v.

Puhl, 6th Dist. Wood No. WD-96-059, 1997 WL 224972, *1-2 (May 2, 1997). And imposing a

reserved sentence is an appropriate punishment for a community control violation so long as the

sentence was within the statutory range. State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-

Ohio-228, ¶ 17-21. See also, State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.2d

1237, ¶ 13. That standard need not change; more than that, it should not change.

Appellate courts, statewide, have been uniform in imposing the R.C. 2929.15(B)(1)(c)

“technical” violation prison term caps on those violations that are based upon technicalities

arising out of the more standard and formulaic conditions of community control, which have a

tendency of being violated. This Court should cement those holdings, here, and reject Nelson’s

argument that a “technical” violation is anything other than a newly prosecuted felony offense.

5

STATEMENT OF AMICUS INTEREST

The Ohio Prosecuting Attorney Association (OPAA) is a private non-profit membership

organization that was founded for the benefit of the 88 county prosecutors. The founding

attorneys developed the original mission statement, which is still adhered to. It reads: “to

increase the efficiency of its members in the pursuit of their profession; to broaden their interest

in government; to provide cooperation and concerted action on policies which affect the office of

Prosecuting Attorney, and to aid in the furtherance of justice. Further, the association promotes

the study of law, the diffusion of knowledge, and the continuing education of its members.”

And it is in the furtherance of justice to guarantee that the laws of the State of Ohio are

faithfully executed. In that light, if Nelson’s chosen definition of “technical”—as it relates to

community control violations under R.C. 2929.15(B)(1)(c)(i) & (ii)—is adopted by this Court, it

would contravene the vast precedent established by appellate courts statewide. It would also

create an unnecessary diminution of the trial court’s discretion in imposing reserved prison time

for defendants who are violating key aspects of their community control—most often relating to

drug dependency issues that spawned the majority of the crimes that caused for their relationship

with the criminal justice system in the first place. Trial courts need to retain that discretion.

So the Second District Court of Appeals got it right when it found that Nelson’s violation

of his no-contact order with the person who acted as the accelerant for his alcohol issues (which

then additionally led him to consuming alcohol in violation of another condition of his probation)

was “non-technical”. The reason being that “[t]he no-contact sanction was specifically tailored

to Nelson.” State v. Nelson, 2nd Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763, ¶ 32. And

this Court needs to support the various trial courts throughout Ohio in that manner, so they can

make those needed, independent, fact-specific judgments related to the individual defendant.

6

STATEMENT OF THE CASE & FACTS

John Edward Nelson was indicted on May 5, 2016 in an eight count indictment that

included two counts of corrupting another with drugs as well as two counts forgery and one

count each of aggravated trafficking in drugs, trafficking in cocaine, possession of cocaine, and

possession of drug paraphernalia. As a result of a plea deal, Nelson pleaded guilty to the two

counts of corrupting another with drugs (felonies of the fourth degree), an amended count of

attempted aggravated trafficking in drugs (a felony of the fourth degree), and trafficking in

cocaine (a fifth degree felony). He was then sentenced to 17 months for each charge, two of

which were run consecutively, for a total time of imprisonment of 34 months. Those prison

terms were reserved; however, and Nelson was placed on community control. State v. Nelson, 2nd

Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763, ¶ 2-5.

Nelson violated a number of the terms of his community control, and he admitted to those

violations on January 9, 2018. Ten days later, a hearing was held to explore Nelson’s violations

in more depth and craft an appropriate sanction for those violations. In that regard, Nelson’s

parole officer, Herb Nicholson, testified that he advised Nelson that he could not have contact

with a J. Elliott. Id., at ¶ 7-10. Nicholson also “identified a written statement that Nelson

provided to him at the Tri-County Regional Jail on January 2, 2018, in which Nelson admitted

having contact with Elliott, drinking, arguing with his aunt about his drinking, and kicking in the

door at the East Ward Street address” in Urbana, Ohio where Nelson lived with his aunt. Id., at ¶

11. Nelson then re-admitted to all of those things at the hearing, including knowledge of not

being able to have contact with J. Elliott. Id., at ¶ 12.

At the end of the January 19, 2018 hearing, the court explained the appropriate

sentencing factors to Nelson. In doing such, the court noted that Nelson had “five prior terms of

7

imprisonment. He was on post-release control for a felony offense of violence when he

committed the underlying felony offenses in the case at bar. His relationship with juveniles

facilitated the commission of the corrupting another with drug offenses. And that in the

underlying offense he used counterfeit money to buy drugs from a drug dealer, which elevated

the risk of retaliation for the deceptive conduct thereby threatening public safety.” Id., at ¶ 13.

The court also noted that Nelson continued “to disregard the no contact orders of the APA, to

minimize the consumption of alcohol, and creation of risk factors that jeopardized his pro-social

behavior. The continued contact in violation of the no contact order resulted in commission of

misdemeanor acts of property destruction and reckless behavior.” Id. The court then imposed the

reserved prison sentences and reaffirmed why they were appropriate originally. Id., at ¶ 13. That

was then memorialized in the court’s judgment entry. Id., at ¶ 14-15.

Nelson appealed that conviction and raised a single assignment of error, which argued

that his sentence was contrary to law. Id., at ¶ 16. The Second District Court of Appeals found

Nelson’s assignment of error to be not well-taken and affirmed his sentence. Id., ¶ 32. In fact,

the appellate court specifically noted the following, as the rationale for its holding:

We disagree with Nelson’s assertion that all of his community

control violations are “either technical violations * * * or a

misdemeanor,” such that R.C. 2929.15(B)(1)(c)(ii) applies to limit

his sentence. We find the distinction in Davis to be instructive

between “an administrative requirement facilitating community

control supervision,” as in Cearfoss and Jenkins, and “a

substantive rehabilitative requirement which addressed a

significant factor contributing to appellant’s criminal conduct.”

(Emphasis added.) Nelson was ordered to have no contact with

Elliott in order to address an issue that significantly contributed to

his criminal conduct, namely consuming alcohol. The no-contact

sanction was specifically tailored to Nelson. He acknowledged that

drinking alcohol was his “main problem,” and that Elliott’s use of

alcohol around him contributed to his drinking and his violations

of community control. The prosecutor identified with particularity

Nelson's contact with Elliott as the basis for his failure to succeed

8

on community control, and the trial court similarly concluded that

Nelson’s contact with Elliott “resulted in commission of

misdemeanor acts of property destruction and reckless behavior.”

For the foregoing reasons, we conclude that Nelson's contact with

Elliott, although non-criminal in nature, was not a technical

violation, and that R.C. 2929.15(B)(1)(c)(ii) did not apply to limit

Nelson's sentence. In other words, Nelson's sentence does not

violate R.C. 2929.15(B)(1)(c)(ii) and is not contrary to law.

Id. (Emphasis in the original.)

Further review of that decision at the intermediate appellate level was not attempted by Nelson.

Instead, Nelson sought the jurisdiction of this Court on January 14, 2019. This Court,

then, granted jurisdiction on April 3, 2019 on Nelson’s proposition of law. The accepted

proposition of law reads as follows: “The caps on community-control-violation prison sentences

for underlying, qualified fourth- and fifth-degree felonies apply to all community-control

violations that are based upon conduct that does not constitute a felony-level crime. R.C.

2929.15(B)(1)(c)(i) and (ii).”

9

ARGUMENT

Amicus Curiae’s Proposition of Law: A “non-technical” violation of a community control

condition under R.C. 2929.15(B)(1)(c)(i) or (ii) does not need to be a new felony in order for the

trial court to impose the balance of a previously reserved prison sentence.

Nelson advocates that this Court interpret R.C. 2929.15(B)(1)(c) in the broadest possible

manner. That is not needed. Presently, R.C. 2929.15(B) states the following:

(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;

(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.

10

Before September 29, 2017, the statute read thus:

(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;

(c) A prison term on the offender pursuant to section 2929.14 of

the Revised Code.

And, it is interesting to note that R.C. 2929.19(B)(4), which concerns sentencing

hearings, did not mention the changes found in R.C. 2929.15(B)(1)(c) under its current version,

which became effective March 22, 2019. Still, it reflects the broad sentencing discretion of the

trial court for community control violations:

If the sentencing court determines at the sentencing hearing that a

community control sanction should be imposed and the court is not

prohibited from imposing a community control sanction, the court

shall impose a community control sanction. The court shall notify

the offender that, if the conditions of the sanction are violated, if

the offender commits a violation of any law, or if the offender

leaves this state without the permission of the court or the

offender's probation officer, the court may impose a longer time

under the same sanction, may impose a more restrictive sanction,

or may impose a prison term on the offender and shall indicate the

specific prison term that may be imposed as a sanction for the

violation, as selected by the court from the range of prison terms

for the offense pursuant to section 2929.14 of the Revised Code

and as described in section 2929.15 of the Revised Code.

R.C. 2929.19(B)(4).

The question then turns to: first, how is a “technical” violation defined; second, what constitutes

a “technical” violation; and third, when is the court forced to impose a prison cap for a violation.

11

This Court has held the following, as it concerns the definition of “technical violation”:

“In Inmates' Councilmatic Voice, supra, 541 F.2d at 635, fn. 2, the Sixth Circuit Court of

Appeals defined ‘technical violations’ as ‘those violations of the terms and conditions of the

parole agreement which are not criminal in nature[,] such as failure to report to the parole officer,

association with known criminals, leaving employment, leaving the State, etc.’” Taylor v. Ohio

Adult Parole Authority, 66 Ohio St.3d 121, 124, 609 N.E.2d 546 (1993). And Ohio appellate

courts have been uniform in utilizing that definition for the term “technical violation” under R.C.

2929.15(B)(1)(c). State v. Fisher, 4th Dist. Athens No. 18CA27, 2019-Ohio-2420, ¶ 26; State v.

Stevens, 4th Dist. Vinton No. 18CA712, 2019-Ohio-1838, ¶ 18; State v. Blake, 4th Dist. Hocking

No. 18CA6, 2018-Ohio-5413, ¶ 8; State v. Abner, 4th Dist. Adams Nos. 18CA1061, 18CA1062,

2018-Ohio-4506, ¶ 12; State v. Wolfe, 5th District Licking No. 18-CA-60, 2019-Ohio-2294, ¶ 11;

State v. Johnson, 5th Dist. Licking No. 18-CA-37, 2019-Ohio-376, ¶ 11-12; State v. Mannah, 5th

Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 9; State v. Calhoun, 6th Dist. Wood No. WD-

17-067, 2019-Ohio-228, ¶ 28; State v. Catron-Wagner, 8th Dist. Cuyahoga No. 106887, 2019-

Ohio-153, ¶ 28, 30; State v. Stanko, 8th Dist. Cuyahoga No. 106886, 2019-Ohio-152, ¶ 9; State v.

Pino, 11th Dist. Lake No. 2017-L-171, 2018-Ohio-2825, ¶ 6; State v. Cozzone, 11th Dist. Geauga

No. 2017-G-0141, 2018-Ohio-2249, ¶ 38; State v. Davis, 12th Dist. Warren No. CA2017-11-156,

2018-Ohio-2672, ¶ 16. Nelson does not dispute that definition. Yet he does read the definition

of “technical” to be far broader than how it is traditionally defined. And that causes problems.

For as this Court is well aware, if a term is not defined by a statute, the principles of

statutory construction suggest utilizing a dictionary definition for that word. MIB, Inc. v. Tracy,

83 Ohio St.3d 154, 158, 699 N.E.2d 44 (1998). That principle has been cited to recently. State v.

Martin, 154 Ohio St. 3d 513, 2018-Ohio-3226, 116 N.E.3d 127, ¶ 54 (O’Donnell, J., dissenting);

12

Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 52

(Kennedy, J., concurring in judgment only). And the Supreme Court of the United States has

followed that canon of statutory construction for almost a century. Coverdale v. Arkansas-

Louisiana Pipe Line Co., 303 U.S. 604, 607, fn. 1, 58 S.Ct. 736, 82 L.Ed. 1043 (1938). That

principle holds true for the federal appellate courts as well—literally from coast-to-coast. See

e.g., Hostar Marine Transport Systems, Inc. v. United States, 592 F.3d 202, 211 (1st Cir. 2010);

Cheffins v. Stewart, 825 F.3d 588, 593, fn. 4 (9th Cir. 2016). So that begs the question of how

“technical” is defined by leading dictionaries.

As it relates to legal dictionaries, the definition of “technical” is uniform. Black’s Law

Dictionary defines “technical” as “[i]mmaterial, not affecting substantial rights, without

substance.” Black’s Law Dictionary 1463 (6th Ed. 1990). Ballentine’s Legal Dictionary and

Thesaurus defines “technical” as “[i]nvolved in detail or in form rather than in a principle or

substance.” Ballentine’s Legal Dictionary and Thesaurus 661 (1995). Both of those definitions

look at the word “technical” as valuing form over substance. And that definition is in-line with

how this Court and others have defined “technical”, as it relates to either a violation of

community control or a violation of post-release control.

The same holds true for the definition of “technical” by standard, well-respected

dictionaries. The Oxford English Dictionary defines “technical” as “[o]f an offense: so regarded

according to a strict legal interpretation (though minor, accidental, etc.)” http://www.oed.com.

Webster’s Third New International Dictionary defines “technical” as “according to a strict legal

interpretation” Webster’s Third New International Dictionary 2348 (1986). Again, both of those

definitions look to the law and both highlight a strict formalism relating to what “technical”

means. Other well-respected dictionaries take the same tone. The American Heritage

13

Dictionary of the English Language defines “technical” in light of something done “[a]ccording

to principle; formal rather than practical.” The American Heritage Dictionary of the English

Language 1776 (4th Ed. 2000). Again, form rules over substance. In a similar light, The

Random House Dictionary of the English Language defines “technical” to reflect something “so

considered from a point of view in accordance with a stringent interpretation of the rules” The

Random House Dictionary of the English Language 1950 (2nd Ed. Unabridged 1987). So too,

The Chambers Dictionary defines “technical” as “being so by virtue of a strict application or

interpretation of the rules” The Chambers Dictionary 1600 (13th Ed. 2014). Strict application of

rules, much like the strict application of the law, denotes a banal formalism. Ohio courts also

embrace that idea when defining the word “technical” as it relates to a “technical violation”

under R.C. 2929.15(B)(1)(c). And they find that it denotes a violation based upon a technicality,

something minor or de minimis: form over substance. For when those courts find a violation to

be based upon substance, they deem that violation to be “non-technical”. This Court should too.

Through a number of well-reasoned decisions, courts of appeals throughout Ohio have

established a sound approach for determining whether a community control violation is

“technical” or whether it is “non-technical”, as this Court indicated that they (more particularly

trial courts) should do. See Smith v. Sheldon, Slip.Op.No. 2018-1195, 2019-Ohio-1677, ¶ 8. And

those decisions are loyal to the definitions of “technical” that are noted above. That then leads to

reviewing what the various courts of appeals consider both “technical” and “non-technical”

violations to involve.

To start, appellate courts recognize that a violation that ultimately results in a defendant’s

reserved sentence being imposed must not be viewed in isolation. Rather, the court must employ

a totality of the circumstances approach to determine whether the conduct that gave rise to the

14

violation was “technical”. State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶

30. Courts then apply what can be best described as a balancing test.

Appellate courts are uniform in finding that testing positive for a drug, the possession of

which is a felony, is not a “technical” violation as envisioned by R.C. 2929.15(B)(1)(c).

Specifically, Appellate courts have held that a positive drug screen involving cocaine is a “non-

technical” violation. State v. Tackett, 6th Dist. Erie No. E-18-040, 2019-Ohio-2253, ¶ 5, 20-21;

State v. Ford, 12th Dist. Clermont No. CA2018-07-052, 2019-Ohio-1196, ¶ 3-5, 12-14; State v.

Showalter, 12th Dist. Clermont No. CA2018-04-023, 2018-Ohio-5299, ¶ 13-15; State v. Walsson,

12th Dist. Clermont No. CA2018-02-004, 2018-Ohio-4485, ¶ 13. Accord R.C. 2925.11(C)(4).

The same holds true for a positive drug screen involving heroin. State v. Abner, 4th Dist. Adams

Nos. 18CA1061, 18CA1062, 2018-Ohio-4506, ¶ 14-16; State v. Cozzone, 114 N.E.3d 601, 2018-

Ohio-2249 (11th Dist.), ¶ 39; State v. Walsson, 12th Dist. Clermont No. CA2018-02-004, 2018-

Ohio-4485, ¶ 13. Accord R.C. 2925.11(C)(6). The same hold true for positive drug screens for

scheduled drugs, specifically methamphetamine, oxycodone, and amphetamines. State v. Palmer,

2nd Dist. Clark No. 2018-CA-74, 2019-Ohio-1144, ¶ 4, 11; State v. Wolfe, 5th Dist. Licking No.

18-CA-60, 2019-Ohio-2294, ¶ 4, 12, 14; State v. Johnson, 5th Dist. Licking No. 18-CA-37, 2019-

Ohio-376, ¶ 11-15; State v. Eckert, 12th Dist. Clermont No. CA2018-06-038, 2019-Ohio-1289, ¶

2, 12; State v. Shaffer, 12th Dist. Clermont No. CA2017-12-064, 2018-Ohio-5297, ¶ 11, 15-16.

Accord R.C. 2925.11(C)(1). See also, R.C. 2925.11(C)(2). Presumably, the same would hold

true for positive drug screens for L.S.D., controlled substance analogs, and fentanyl-related

compounds. Accord R.C. 2925.11(C)(5); R.C. 2925.11(C)(8); R.C. 2925.11(C)(9); R.C.

2925.11(C)(10); R.C. 2925.11(C)(11). Whether the person was charged for that potential felony

is immaterial for the determination that the violation is “non-technical”. In addition, it could be

15

argued that all of the above violations would still have been “non-technical”—even under

Nelson’s expansive definition of “technical”—because they “constitute a felony-level crime.”

Appellate courts have also been uniform in finding that being non-compliant, leaving

prematurely, being dismissed from, or unsuccessfully completing a specifically tailored program

that was selected and ordered by the court for that particular offender’s need is a “non-technical”

violation. State v. Salett, 3rd Dist. Logan No. 8-18-62, 2019-Ohio-2637, ¶ 17-20; State v. Fisher,

4th Dist. Athens No. 18CA2420, ¶ 36; State v. Stevens, 4th Dist. Vinton No. 18CA712, 2019-

Ohio-1838, ¶ 19, 25, 27; State v. Blake, 4th Dist. Hocking No. 18CA6, 2018-Ohio-5413, ¶ 11;

State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 15; State v. Orzechowski,

6th Dist. Wood No. WD-18-025; State v. Baker, 12th Dist. Clermont No. CA2018-06-042, 2019-

Ohio-2280, ¶ 11, 21, 25-26; State v. Neal, 12th Dist. Clermont No. CA2018-09-068, 2019-Ohio-

2277, ¶ 4-5, 14; State v. Starr, 12th Dist. Clermont No. CA2018-09-065, 2019-Ohio-2081, ¶ 22-

25; State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 34-, 14, 18. The

logic for finding such above contact to be “non-technical” violations is the idea that those

programs were consciously selected and constituted “a substantive rehabilitation requirement”

directly related to the particular situation. See State v. Fisher, 4th Dist. Athens No. 18CA2420, ¶

36. Specialty of a condition, therefore, makes its violation “non-technical” under R.C.

2929.15(B)(1)(c), because it is—by its very nature—substantive rather than trivial.

In the same regard, Nelson’s violation for ignoring the no-contact order condition of his

community control was “non-technical” because “[t]he no-contact sanction was specifically

tailored to Nelson.” State v. Nelson, 2nd Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763, ¶ 32.

It was a no-contact order with the specific person who acted as the catalyst and accelerant for

Nelson’s sustained and pronounced alcohol issues. Id., at ¶ 9-13. Again, the community control

16

condition at issue here was substantive rather than inconsequential. Its violation, therefore, does

not fit the definition of “technical” pursuant to R.C. 2929.15(B)(1)(c).

In addition, appellate courts have been uniform in holding that repeated failure to attend

probation meetings—which can rise to the level of absconding—is a “non-technical” violation.

State v. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-Ohio-228, ¶ 30; State v. Orzechowski,

6th Dist. Wood No. WD-18-025; State v. Graham, 6th Dist. Wood No. WD-18-021, 2019-Ohio-

1485, ¶ 3, 17; State v. Neville, 8th Dist. Cuyahoga No. 106885, 2019-Ohio-151, ¶ 44, 48-49.

Accord State v. Urban, 5th Dist. Delaware Nos. 18 CAA 09 0066, 18 CA 09 0067, 18 CAA 09

0068, 2019-Ohio-2244, ¶ 18-20. In fact, repeated non-attendance of parole meetings

(absconding) under post-release control law is a crime, so it is—by its nature—not a technical

violation. See State v. Jordan, 124 Ohio St.3d 397, 2010-Ohio-281, 922 N.E.2d 951, ¶ 9-10; R.C.

2967.15(C)(1); R.C. 2921.34(A)(2)(b). This is yet another example of a substantive rather than a

minor condition of community control. Thus, its violation is not “technical” by definition.

That being said, appellate courts have been uniform in recognizing what a true

“technical” violation is too under R.C. 2929.15(B)(1)(c). It is a “technical” violation to test

positive for alcohol. State v. Pino, 11th Dist. Lake No. 2017-L-171, 2018-Ohio-2825, ¶ 3-4, 14.

It is a “technical” violation to test positive for alcohol and miss an AA meeting. State v. Stanko,

8th Dist. Cuyahoga No. 106886, 2019-Ohio-152, ¶ 11. It is a “technical” violation to test positive

for alcohol and improperly complete some AA sheets. State v. Catron-Wagner, 8th Dist.

Cuyahoga No. 106887, 2019-Ohio-153, ¶ 39. It is a “technical” violation to test positive for

marijuana once. State v. Barron, 8th District Cuyahoga No. 107775, 2019-Ohio-1447, ¶ 7, 14.

The above violations are “technical” because they are commonplace as well as minor. And they

are isolated. That is not the situation here. Nelson’s violations where neither minor nor isolated.

17

It is also noteworthy that appellate courts are similarly uniform on non-dipositive issues

related to R.C. 2929.15(B)(1)(c). For example, appellate courts agree that once a defendant has

completed his sentence, any argument concerning whether his or her violation was “technical” is

rendered moot. State v. Ingledue, 2nd Dist. Clark No. 2018-CA-47, 2019-Ohio-397, ¶ 9-10; State

v. Adams, 2nd Dist. Champaign No. 2018-CA-7, 2018-Ohio-4877, ¶ 6-8; State v. Lewis, 4th Dist.

Ross No. 18CA3660, 2019-Ohio-2009, ¶ 5; State v. Morehouse, 5th Dist. Licking No. 18 CA

0036, 2019-Ohio-884, ¶ 12. Likewise, appellate courts agree that prison terms for “technical”

violations may be served consecutively under R.C. 2929.14(C)(4). State v. Randolph, 5th Dist.

Fairfield No. 17 CA 53, 2018-Ohio-4651, ¶ 15; State v. Randolph, 5th Dist. Fairfield No. 17 CA

52, 2018-Ohio-4652, ¶ 15; State v. Baker, 8th Dist. Cuyahoga No. 106716, 2018-4027, ¶ 14.

Accord State v. Magee, 6th Dist. Sandusky No. S-18-029, 2019-Ohio-1921, ¶ 5-6; State v.

Bishop, 12th Dist. Clermont Nos. CA2018-05-031, CA2018-05-036, 2019-Ohio-592, ¶ 12-15. In

addition, R.C. 2929.15(B)(1)(c) is only to be applied proactively, not retroactively. State v.

Vasquez, 5th Dist. Delaware No. 18 CAA 08 0058, 2019-Ohio-136, ¶ 21-23.

And, for the sake of completeness, there are three decisions where R.C. 2929.15(B)(1)(c)

was mentioned, but not fully addressed, in cases involving jail-time credit. State v. Nutter, 4th

Dist. Hocking No. 18CA1, 2018-Ohio-5368, ¶ 16; State v. Smith, 5th Dist. Ashland No. 18-COA-

002, 2018-Ohio-4188, ¶ 22-23; State v. Whited, 12th Dist. Butler No. CA2018-04-079, 2019-

Ohio-18, ¶ 17. Finally, there are three decisions that outline the new statutory language, but the

assignments of error did not concern the sentences’ length. State v. Schuttera, 5th Dist. Ashland

No. 18-COA-007, 2018-Ohio-3305, ¶ 10-11, 17; State v. Reyes, 8th Dist. Cuyahoga No. 107323,

2019-Ohio-1127, ¶ 21-22; State v. Masters, 12th Dist. Warren No. CA2018-10-127, 2019-Ohio-

1702, ¶ 9. The hallmark in all these cases, however, still remains uniformity.

18

The appellate courts, frankly, are getting it right when they are confronted with

determining whether a violation of community control is “technical” under R.C.

2929.15(B)(1)(c). They are utilizing the definition of “technical” adopted by this Court and

viewing the case holistically to determine whether the violation is linked to a substantive

probation condition or a de minimis one. And they sentence accordingly. That’s what trial

courts are supposed to do when they are faced with this type of situation. And that approach is

consistent with how this Court has repeatedly held that a trial court should treat such violations.

“The matter is not complicated. For decades, prior to what is now referred to as

community control, trial courts regularly sentenced defendants to probation and, as a sanction for

violating probation, imposed a period of incarceration.” State v. Cupp, 156 Ohio St.3d 207,

2018-Ohio-5211, __ N.E.3d __, ¶ 19. In order to do that, “[p]ursuant to R.C. 2929.19(B)(5) and

2929.15(B), a trial court sentencing an offender to a community control sanction must, at the

time of the sentencing, notify the offender of the specific prison term that may be imposed for a

violation of the conditions of the sanction, as a prerequisite to imposing a prison term on the

offender for a subsequent violation.” State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814

N.E.2d 837, at paragraph two of the syllabus. In that regard, “the only restriction is that the

judge may not impose a prison sentence longer than that which the trial court stated it could

impose at the original sentencing hearing. But there is no predetermined sentence.” State v.

Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 13. So “from the trial court’s

perspective, the notice does little more than set a ceiling on the potential prison term, leaving the

court with the discretion to impose a lesser term than the offender was notified of when a lesser

term is appropriate.” State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶

23. That law does not appreciably change with R.C. 2929.15(B)(1)(c), as it is written currently.

19

Now, for minor violations of community control—basically for technicalities—the trial

court can no longer impose the entire reserved prison sentence. Instead, the trial court can either

impose a 90 day or a 180 sentence for that “technical” violation, depending on the level of the

original felony conviction. And appellate courts throughout Ohio have been consistent in doing

such. Other than that, this Court’s established precedent remains remarkably unchanged.

Appellate courts, statewide, are cognizant of that as well and have been uniform in their

application of R.C. 2929.15(B)(1)(c). There is no great split of authority, as claimed by Nelson.

This Court, therefore, should not substantially change and artificially expand the

definition of “technical violation” to now encompass every conceivable violation of a

community control condition that is not a new, prosecuted felony offense. The Second District

Court of Appeals soundly realized that and held that “[t]he no-contact sanction was specifically

tailored to Nelson.” State v. Nelson, 2nd Dist. Champaign No. 2018-CA-5, 2018-Ohio-4763, ¶ 32.

Again, the community control condition at issue here was not some stock no-contact provision, it

was specifically ordered to keep Nelson away from the person who acted as the catalyst and

accelerant for his alcohol issues, which the trial court fully understood led Nelson to consuming

alcohol and that was the root of most of his criminal justice issues. Nelson admitted as much to

the trial court: “He acknowledged that drinking alcohol was his ‘main problem,’ and that

Elliott’s use of alcohol around him contributed to his drinking and his violations of community

control.” Id. Unfortunately, that meant that Nelson needed to go to prison in order to avoid J.

Elliott and receive the specific alcohol treatment that he required. Making the trial court

artificially wait for Nelson to commit another felony before that could happen does not benefit

Nelson—or society. This Court should recognize that as well.

20

CONCLUSION

This Court should take the opportunity to reaffirm and resolve that the definition of

“technical violation” adopted by this Court in Taylor v. Ohio Adult Parole Authority, 66 Ohio

St.3d 121, 124, 609 N.E.2d 546 (1993), applies to both community control violations and post-

release control violations. Similarly, this Court should further define “technical” by utilizing the

definition of “technical” found in any number of dictionaries: both legal and non-legal alike. In

that way, this Court should cement the principle that “technical” means minor, de minimis,

commonplace, trivial, inconsequential, trifling, slight, and the like.

R.C. 2929.15(B)(1)(c)(i) & (ii) should not be interpreted in a way so that all violations of

community control are technical in nature, unless they constitute a new felony-level offense. In

fact, no appellate court in Ohio has ever read R.C. 2929.15(B)(1)(c)(i) or (ii) to require that. As

a result, this Court should reaffirm Nelson’s prison sentence that arose out of his non-technical

community control violation, refuse to adopt Nelson’s proposition of law, and adopt the Amicus

Curiae’s proposition of law.

Respectfully submitted,

/s/ David T. Harold (0072338)

David T. Harold (0072338)

Assistant Prosecuting Attorney

21

CERTIFICATION

The undersigned counsel certifies that a true and accurate copy of this amicus curiae brief

was served via regular U.S. Mail to the counsel of record for Defendant-Appellant John Edward

Nelson, Peter Galyardt, Assistant Public Defender, Office of the Ohio Public Defender 250 East

Broad Street, Suite 1400, Columbus, Ohio 43215 and the counsel of record for Plaintiff-Appellee

State of Ohio, Jane Napier, Assistant Prosecuting Attorney, Champaign County Prosecutor’s

Office, 200 North Main Street, Urbana, Ohio 43078, on this 3rd day of July, 2019.

/s/ David T. Harold (0072338)

David T. Harold (0072338)

Assistant Prosecuting Attorney