OHIO | Supreme Court: Even non-criminal probation violations can mean prison time

By Susan Tebben

Ohio Capital Journal

The Ohio Supreme Court ruled Wednesday that probation violations can lead to more prison time, even if the violation wasn’t a criminal offense.

The state’s highest court ruled in a 5-2 decision that a Champaign County man’s defiance of a probation officer’s rule that he not be in contact with a certain person could warrant a 34 month prison sentence.

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In John E. Nelson’s appeal to the Second District Court of Appeals, he argued his violations were only “technical”  or misdemeanor in nature, and therefore only warranted a maximum of 180 days in prison. The majority of Supreme Court justices, including Chief Justice Maureen O’Connor, said the law allows judges discretion in “more serious violations of community control that do not rise to the level of a crime,” according to the court.

Nelson was serving four years of community control, a type of probation, at the time of the violation, after pleading guilty to four felony counts. One year after pleading guilty, Nelson’s probation officer told him not to have contact with a person with whom the officer knew Nelson had been drinking.

In testimony during his case, Nelson said he “had a problem with alcohol and that alcohol was ‘a gateway’ to his misconduct,” according to court documents. He had previously told his probation officer that socializing with one particular person “was contributing to (his) violation of community control.”

In having contact with the person, the probation officer said he was in violation of plea agreement conditions, including one that required him to “conduct himself as a responsible, law abiding citizen,” and another that directed him to “follow all orders given to him by his supervising officer or other authorized representatives of the Court of the Department of Rehabilitation and Correction,” according to the court opinion.

Nelson was also convicted of criminal damaging after kicking in a family member’s door while intoxicated.

On appeal of the violations, the court of appeals denied Nelson’s argument that the offenses were technical.

The Supreme Court addressed the fact that state law doesn’t define a “technical” violation, and referred to legal dictionaries and previous cases for a definition. The court concluded that there is a difference between “technical” violations and “non-criminal,” therefore the maximum of 180 days for technical violations wouldn’t apply. The plain language of the law does not support Nelson’s argument, the court said.

“Had the General Assembly wanted to enact a different rule governing caps on prison sentences for community-control violations, it could have done so,” O’Connor wrote for the majority.

The court found that the no-contact order from Nelson’s probation officer wasn’t technical because it was “a substantive rehabilitative requirement which addressed a significant factor contributing to Nelson’s misconduct.”

The two dissenting justices said the court did not give enough clarity to the definition of technical violations, and said Nelson didn’t commit any violations or crimes by contacting the person, despite the order from the probation officer.

Justice Michael Donnelly wrote the dissenting opinion, in which he said a 34-month prison term is “absurd,” and over and above the deserved punishment.

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“He 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,” Donnelly wrote. “But he could get no more than a 180-day prison term if he commits arson…or if he does not have a job…”

He said interpreting what the General Assembly intended of the law doesn’t allow the court to “upend the meaning of a statute just because the General Assembly has used cumbersome, inefficient language.”

“We would be in the position to upend a good deal of the entire Revised Code if there were such a canon,” wrote Donnelly.

Justices Sharon Kennedy, Judith French, Patrick Fischer and Patrick DeWine joined Chief Justice O’Connor in the majority opinion. Justice Melody Stewart joined Donnelly in dissenting.

Susan Tebben is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio. Read more Ohio Capital Journal stories here.

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