State v. Conte
2018 Ohio 4688
Ohio Ct. App.2018Background
- Ronald D. Conte was convicted of multiple felonies for stealing $558,100.02 from his accounting clients and sentenced to 59 months; he served 21 months and was granted judicial release on community control.
- A condition of community control required monthly restitution; originally $2,500, later reduced by the court to $1,500 after Conte’s motion.
- Conte made partial monthly restitution payments but often failed to pay the full required amount; probation officers recommended continued community control.
- The State introduced Conte’s personal accounting/credit records to suggest he diverted funds to personal purchases instead of paying restitution.
- The trial court found Conte had the ability to pay, concluded he manipulated accounting to avoid payment, revoked community control, and reimposed the suspended prison sentence.
- The appellate court reversed and remanded because the trial court did not make the explicit Bearden-type finding that Conte willfully refused to pay or failed to make bona fide efforts to obtain funds before imprisoning him.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Conte) | Held |
|---|---|---|---|
| Whether the trial court properly revoked community control for failure to pay restitution | State: Conte had ability to pay and engaged in deceptive accounting; imprisonment permissible | Conte: He made partial payments and there was no proof of willful refusal to pay | Reversed and remanded: trial court failed to make the explicit willfulness/bona fide-effort findings required by Bearden |
| Standard required before revoking probation for nonpayment (Bearden inquiry) | State: Court may consider ability to pay and marital/shared assets when determining nonpayment culpability | Conte: Court must inquire into reasons for nonpayment and find willfulness or lack of bona fide efforts before incarcerating | Appellate court: Bearden requires an inquiry and explicit finding whether failure was willful or, if not, whether alternatives are inadequate; remand for a new hearing |
Key Cases Cited
- Bearden v. Georgia, 461 U.S. 660 (U.S. 1983) (court must inquire into reasons for failure to pay and may only revoke probation if payment was willful or alternatives are inadequate)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard defined)
- Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (Ohio 1993) (appellate court cannot substitute its judgment for trial court under abuse-of-discretion review)
- State v. Earlenbaugh, 18 Ohio St.3d 19 (Ohio 1985) (definition of "willfully" for Ohio law purposes)