Supreme Court of Ohio Addresses Meaning of “Technical Violation” of Community Control

The Supreme Court of Ohio recently issued a decision clarifying what constitutes a “technical violation” of the terms of community control. In State v. Nelson, the Court held that this term does not include all noncriminal violations.

In 2017, in an effort to reduce the number of low-level offenders in prison, the Ohio General Assembly amended R.C. 2929.15  by imposing caps on the prison terms for violations of community control where the violation was a technical violation or a violation of the law that was not a felony. The amended statute limited sentences to 90 days for defendants on community control for a fifth-degree felony, and 180 days for a fourth-degree felony, but did not apply for higher level offenses. The statute did not define “technical violation.”

From the outset, trial and appellate courts struggled to interpret the statute. While courts generally rejected the argument that all noncriminal conduct constituted technical violations, they differed on where exactly to draw the line. Courts found that technical violations included using alcohol,[i] failing to report to probation,[ii] and failure to maintain alcoholics anonymous attendance sheets in the way mandated by the probation officer.[iii] Courts generally agreed that failure to complete a community based correctional program was not a technical violation, because it was  “special” rather than a “standard” term of community control, in that it was a substantive rehabilitative requirement which addressed a significant factor contributing to the defendant’s criminal conduct.[iv]

In Nelson, the defendant pleaded guilty to four drug charges. His community control sentence included the conditions that he follow all laws, follow all orders given to him by his probation officer, and that he “conduct himself as a responsible, law-abiding citizen.” The court warned him that if he violated of the terms of community control, he would serve thirty-four months in prison.  

As part of the second of these conditions, Nelson’s probation officer ordered him not to have any contact with his former girlfriend Jamie Elliot, believing that “socializing with Elliot had been a contributing factor to his drinking,” which in turn contributed to his criminal conduct. When Nelson violated this order, the court revoked his community control, found that the violation was not technical in nature, and sentenced Nelson to the full thirty-four month prison term.

The Supreme Court affirmed that violation of this no contact order was not a technical violation. First, the Court rejected the argument that all noncriminal violations are technical. The Court relied substantially on the definition of “technical” found in Black’s Law Dictionary: “immaterial, not affecting substantial rights, without substance.” The Court further found that the text of the statute, by referring to both technical violations and violations of law that are not felonies, supported this conclusion. The Court held that:

“interpreting technical violation to encompass all noncriminal conduct would effectively result in the caps applying to all violation conduct that is not a felony. But if the General Assembly had intended such a result, it would not have needed to mention technical violations at all, It could have stated in one simple provision that the caps apply whenever the violation conduct is not a felony.”

Because the General Assembly did not draft the statute in that way, the Court concluded that its “choice of the term technical implies it has meaning distinct from non-criminal violations.” The Court also held that the use of the undefined term “technical violation” showed that the statute was “intended to allow the judge to retain some discretion when faced with more serious violations that do not rise to the level of a crime.”

The Court then held that Nelson committed a nontechnical violation of the terms of probation by violating the no-contact order with Elliot. The Court found that “Nelson’s own testimony makes clear that he believed Elliot was a bad influence who would cause him to be at risk for violating his community control.” Therefore, the Court held, the no-contact order was a special condition, specifically tailored for Nelson, and not subject to the sentence caps for technical violations.

Justice Donnelly, in a dissenting opinion joined by Justice Stewart, wrote that the majority overly relied on a generic dictionary definition of the word “technical,” without considering the specialized meaning of the term “technical violation” in the field of criminal law. The dissent cited extensive authority from jurisdictions around the country, as well as academic sources and treatises using “technical violation” to refer to a violation that is not criminal in nature. Donnelly criticized the majority for overlooking this specialized meaning in favor of an acontextual dictionary definition.

The dissent also described the result of the majority’s decision as absurd: “Nelson . . . could get a 34-month prison term for violating his community control if he commits murder or if he talks to a woman who his supervising officer thinks is bad news, but he could get no more than a 180-day prison term if he commits arson under R.C. 2909.03(D)(2)(a) (a first degree misdemeanor.)”

The dissent argued that the majority’s rule provided no real guidance on how to define technical violations, and that its attempt at making a distinction based on the specifically-tailored condition amounted to allowing the probation officer to determine which violations were important enough to warrant a longer prison sentence, stating that Nelson was sentenced to almost three years in prison, essentially because his probation officer “indicated during Nelson’s revocation hearing that the verbal order was an important order.”

To me, the dissent is more persuasive. It troubles me that a statute that was specifically enacted to limit judicial discretion in sentencing community control offenders now places almost no limit on that discretion. Black’s Law Dictionary and the fact that the Assembly could have drafted a more verbally efficient statute do not seem like good enough reasons to justify this result. After Nelson, it appears that 2929.15 will have drastically reduced power to keep low-level offenders out of prison, as the General Assembly intended it to.

[i] State v. Pino, 11th Dist. Lake No. 2017-L-171, 2018-Ohio-2825.

[ii] State v. Stanko, 8th Dist. Cuyahoga No. 106886, 2019-Ohio-152.

[iii] State v. Catron-Wagner, 2019-Ohio-153, 131 N.E.3d 313 (8th Dist.)

[iv] State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-2672.


6th Circuit Permits Second Attempt at Execution of Death Row Inmate

The Sixth Circuit Court of Appeals recently ruled that the State of Ohio may attempt to execute death-row inmate Romell Broom a second time. During the first execution attempt in 2009, prison staff spent over two hours unsuccessfully trying to establish a working IV line on Broom, sticking him with needles many times. The court included a thorough account in its opinion:

Broom was transported to the Southern Ohio Correctional Facility (“Lucasville”) on September 14, 2009, in anticipation of his execution scheduled for the next day. Upon his arrival at Lucasville, a nurse and a phlebotomist conducted a vein assessment and found that Broom’s right-arm vein appeared accessible, but his left-arm vein seemed less so. Prison officials communicated this information to Edwin C. Voorhies Jr., the regional director for the Office of Prisons of the Ohio Department of Rehabilitation and Correction (“ODRC”), and the medical team assured him that this would not present a problem. At 1:59 p.m. on September 15, the warden finished reading the death warrant to Broom. One minute later, Team Members 9 (a female) and 21 (a male) entered the holding cell to prepare the catheter sites. Team Member 9 made three attempts to insert a catheter into Broom’s left arm but was unable to access a vein. At the same time, Team Member 21 made three unsuccessful stabs into Broom’s right arm. After a short break, Member 9 made two more insertions, the second of which caused Broom to scream aloud from the pain. Member 21 managed to insert the IV catheter into a vein, but then he lost the vein and blood began running down Broom’s arm. When that occurred, Member 9 rushed out of the room, saying “no” when a security officer asked if she was okay. Director Voorhies testified that he could tell there was a problem in the first 10 to 15 minutes. Warden Phillip Kerns saw the team make six or seven attempts on Broom’s veins during the same 10–to–15–minute period. According to Kerns, the team members did hit veins, but as soon as they started the saline drip, the vein would bulge, making it unusable. About 15 minutes into the process, Kerns and Voorhies saw Member 9 leave the holding cell. Voorhies described her as sweating “profusely” and heard her say No. 19-3356 Broom v. Shoop Page 4 that she and Member 21 had both accessed veins, but the veins “blew.” Member 17 then entered the holding cell and made “several attempts” to access a vein in Broom’s left arm. Simultaneously, Member 21 continued his attempts on Broom’s right arm. Terry Collins, who was then the director of the ODRC, called a break about 45 minutes into the process to consult with the medical team. The break lasted 20 to 25 minutes. The medical team reported that they were gaining IV access but could not sustain it when they tried to run saline through the line. They expressed “clear concern” about whether they would get usable veins. But because they said that there was a reasonable chance of establishing venous access, the decision was made to continue. By this time, Broom was in a great deal of pain from the puncture wounds, which made it difficult for him to move or stretch his arms. The second session commenced with three medical team members—9, 17, and 21—examining Broom’s arms and hands for possible injection sites. For the first time, they also began examining areas around and above his elbow as well as his legs. They also reused previous insertion sites, and as they continued inserting catheter needles into already swollen and bruised sites, Broom covered his eyes and began to cry from the pain. Director Voorhies remarked that he had never before seen an inmate cry during the process of venous access. After another ten minutes or so, Warden Kerns asked a nurse to contact the Lucasville physician to see if she would assess Broom’s veins and offer advice about finding a suitable vein. Broom later stated that he saw “an Asian woman,” whom he erroneously identified as “the head nurse,” enter the chamber. Someone handed her a needle, and when she inserted it, she struck bone, and Broom screamed from the pain. At the same time, another team member was attempting to access a vein in Broom’s right ankle. The Lucasville physician confirmed that she came to Broom’s cell, examined his foot, and made one unsuccessful attempt to insert a needle but quickly concluded that the effort would not work. By doing so, she disobeyed the warden’s express instructions to observe only and not get involved. The physician examined Broom’s foot but could see no other vein. After the physician departed, the medical team continued trying to establish an IV line for another five to ten minutes. In all, the second session lasted approximately 35 to 40 minutes. During the second break, the medical team advised that even if they successfully accessed a vein, they were not confident that the site would remain viable throughout the execution process. The governor’s office had signaled its willingness to grant a reprieve, and so the decision was made to halt the execution for the day.

After the failed execution, Broom filed a “placeholder” Habeas Corpus suit in the Federal District Court for the Northern District of Ohio, claiming that any second attempt to execute him would violate the Eighth Amendment prohibition on cruel and unusual punishment, and the Fifth Amendment prohibition on double jeopardy. He then began litigating his claims in Ohio courts, as federal law required. The Ohio trial court rejected Broom’s arguments, and the court of appeals affirmed.

The Ohio Supreme Court affirmed the lower courts’ decisions. As to Broom’s Eighth Amendment claim, the court relied on the U.S. Supreme Court case Louisiana ex rel Francis v. Resweber. The Resweber court held that after the State of Louisiana unsuccessfully attempted to execute defendant Francis by electrocution, the Eighth Amendment did not bar a subsequent execution, because “neither the psychological strain endured by Francis nor the fact that Francis had already been subjected to a current of electricity rendered his subsequent execution any more cruel in the constitutional sense than any other execution.”

 As to the Fifth Amendment claim, the Ohio Supreme Court concluded that “because the state’s first execution attempt did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached,” and therefore a second attempt would not put Broom in double jeopardy. 

Having exhausted his claims in state court, Broom resumed his federal Habeas petition in the federal district court. Under the Anti-Terrorism and Effective Death Penalty act of 1996, The district court could only grant Broom’s Habeas Corpus petition if the state court decision was contrary to, or made an unreasonable application of, clearly established law. Following this standard, the district court denied the petition. Broom appealed

In affirming the district court, the Court of Appeals for the Sixth Circuit found that Resweber was the only clearly established law on the subject of a second attempt at execution, and that the Ohio Court’s decision was in line with Resweber, and therefore could not be contrary to clearly established law.

As to Broom’s Fifth Amendment claim, the court noted that the Defendant in Resweber also claimed a second execution attempt would violate double jeopardy. The Supreme Court rejected that argument because, at the time, the double jeopardy clause was not thought to apply to the states. Therefore, there was no clearly established law that applied to Broom’s 5th Amendment claim. Even if it were addressing the issue on the merits, the Sixth Circuit suggested that a second execution would not violate double jeopardy because “the state is neither (1) attempting to subject [the] defendant to a second trial following an acquittal, nor (2) attempting to impose a ‘second’ punishment beyond that permitted by the legislature.”

Judge Karen Nelson Moore, writing for a unanimous panel, showed clear discomfort with permitting a second execution attempt. The opinion states, “we in no way condone Ohio’s treatment of Broom,” and also that “Broom makes a compelling case on the merits, one that some members of the panel might be tempted to accept were this case before us on direct review.” Nevertheless, under the narrow constraints of AEDPA, the court could not escape the conclusion that no clearly established law forbid a second execution.