State v. LatimoreState v. Latimore
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-581091-A
RELEASED AND JOURNALIZED: February 12, 2015
Kelly A. Gallagher
P.O. Box 45551
Westlake, OH 44145
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Justine Dionisopoulos
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, John Latimore, III, was convicted of criminal nonsupport. The trial court ordered him to pay the full amount of his child support arrearage as a condition of his community control. On appeal, Latimore claims the trial court actually imposed the payment of support as restitution, and, as such, the amount could not exceed his arrearage during the indictment period. Finding no merit to his claim, we affirm the trial court’s decision.
I.
{¶2} Latimore pleaded guilty to criminal nonsupport, an offense in violation of
{¶3} The sentencing transcript reflects that the trial court sentenced Latimore to five years of community control and ordered him to pay the entire arrearage of $8,240.97. However, the trial court inadvertently referred to the financial sanction of $8,240.97 as “restitution” at one point at the sentencing hearing. In its judgment entry, the trial court again referred to the payment of $8,240.97 as restitution. The court, however, subsequently issued a nunc pro tunc entry, adding the clarification that the payment of $8,240.97 is a condition of community control.
II.
{¶4} On appeal, Latimore raises one assignment of error: “The trial court committed prejudicial error when it ordered restitution in the amount of $8,240.97, the alleged full amount of the child support arrearage, instead of the amount of non-support during the period of his conviction.”
{¶6} It is well settled that pursuant to
{¶7} Several of our sister districts have also concluded that, although the trial court could not order the defendant to pay, as restitution, the entire support arrearage, the trial court has the discretion to order the payment of the entire arrearage as a condition of the community control. State v. Stewart, 10th Dist. Franklin No. 04AP-761, 2005-Ohio-987, ¶10; Schul, supra, at ¶ 8; State v. Scates, 2d Dist. Montgomery No. 25825, 2014-Ohio-1284, ¶5; State v. Christenson, 5th Dist. Delaware No. 99CA-A-02-006, 1999 Ohio App. LEXIS 6544 (Oct. 25, 1999). We find the authority of our sister districts to be persuasive. As the Tenth District reasoned in Stewart, in determining whether community control conditions are reasonably related to the goals of community control, the courts consider whether a condition “(1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future
{¶8} Pursuant to the case law authority, therefore, whether a defendant could be ordered to pay the entire arrearage — as opposed to the arrearage accrued during the time period of the indictment — depends on whether the trial court ordered the payment as restitution or a condition of community control.
III.
{¶9} The second issue presented in this appeal is: what exactly did the trial court impose in this case — did it order Latimore to pay the entire support arrearage as restitution, or as a condition of his community control?
{¶10} Our review of the transcript of the plea hearing reflects that the trial court advised Latimore that if he pleaded guilty to the offense he would have to pay “restitution” “somewhere in the neighborhood of $8,051.33.” Latimore indicated that he understood the consequence of his guilty plea. At sentencing, Latimore’s counsel asked the trial court to order restitution equal to the amount owed during the period of the indictment, $6,178. The state, however, requested that the court impose the entire amount of arrearage, $8,240.97, as a condition of his community control sanction.
{¶11} At the sentencing hearing, the trial court ordered Latimore to pay $8,240.97 as part of his community control sanctions and advised him that once he pays off the entire amount, he
{¶12} The trial court has the discretion to order the payment of the total support arrearage as a condition of community control. Our review of the sentencing transcript indicates that the trial court in this case exercised that discretion and imposed the full arrearage as part of Latimore’s community control sanction. Although it inadvertently referred to the financial sanction as “restitution” in the sentencing entry, its subsequent nunc pro tunc entry correctly reflected what was actually imposed at sentencing.
{¶13} The assignment of error is without merit.
{¶14} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
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TIM McCORMACK, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
MELODY J. STEWART, J., CONCUR