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.