State v. McCantsState v. McCants
Repper, Pagan, Cook, Ltd., John H. Forg III, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶1} Defendant-appellant, Abrian Emil McCants, appeals the restitution portion of his sentence imposed by the Butler County Common Pleas Court. We reverse and remand the trial court‘s decision as to the restitution order.
{¶2} Appellant was indicted on three separate fifth-degree felony violations of
{¶3} “THE TRIAL COURT ERRED IN AWARDING RESTITUTION IN THE AMOUNT OF THE FULL ARREARAGE OWED TO THE BUTLER COUNTY CSEA, $12,585.70, AND NOT JUST THAT PORTION OF THE ARREARAGE THAT ACCRUED BETWEEN AUGUST 1, 2004 AND JULY 31, 2008.”
{¶4} In his sole assignment of error, appellant maintains the trial court erred in awarding restitution beyond the amount owed on each count for which he was convicted.
{¶5}
{¶7} The state urges this court to affirm the trial court‘s restitution order, arguing that the trial court may order a defendant to pay the full amount of child support arrearage owed as a condition of community control. In support of this argument, the state cites State v. Stewart, Franklin App. No. 04AP-761, 2005-Ohio-987 and State v. Hubbell, Darke App. No. 1617, 2004-Ohio-398, and contends the trial court may properly award, as restitution, the entire amount of child support arrearage as a condition of probation or community control. Stewart at ¶8-10; Hubbell at ¶10.
{¶8} In Stewart, the Tenth Appellate District affirmed a trial court‘s decision imposing payment of a father‘s entire child support arrearage amount as a condition of his community control, finding the condition satisfied the three criteria set forth by the Ohio Supreme Court in State v. Jones (1990), 49 Ohio St.3d 51, 53. Stewart at ¶8-10. However, within that opinion the Stewart court specifically noted the following:
{¶9} “The trial court did not order the $11,223.72 support arrearage to be paid as ‘restitution.’ To the contrary, the trial court expressly stated it was not ordering defendant‘s payment of the $11,223.72 support arrearage as restitution, but instead was ordering the payment ‘as a condition of his probation.‘” (Emphasis sic.) Id. at ¶5.
{¶10} In Hubbell, the Second Appellate District reversed the trial court‘s decision ordering restitution in an amount greater than that which accrued within the time period covered by the charge for which the defendant was indicted and ultimately convicted. Hubbell at ¶1, 27, 29. The Second District found that a trial court was limited to ordering restitution in an amount equal to the actual loss caused by an offender‘s criminal conduct. Id. at ¶11. However, the Hubbell court also recognized that a trial court could,
{¶11} Most recently however, this court addressed a similar issue in which a trial court ordered a father, who pled guilty to a felony nonsupport of his son, to pay his entire support arrearage as restitution, even though the offense to which he pled guilty was a failure to pay support for a 24-month period. Peterman, 2010-Ohio-211 at ¶2, 7, 9. In Peterman, this court found, “the trial court was limited in only ordering restitution for the arrearage which accrued during the time period appellant committed the offense.” Id. See, also, Hubbell at ¶11, 27; Friend, 68 Ohio App.3d at 243; Warner, 55 Ohio St.3d at 69-70; Hicks, 2003-Ohio-7210 at ¶44.
{¶12} This case does not present a situation like Stewart in which the trial court ordered payment of the entire arrearage amount as a condition of community control. Stewart at ¶3, 5. Instead, the trial court ordered appellant to pay $12, 585.70 in “restitution,” an amount which, as appellant claims and the state concedes, represents the entire arrearage and not that which accumulated during the 48-month period covered by appellant‘s guilty plea and conviction. Inasmuch as the trial court used the term “restitution,” rather than making payment of the arrearage a term of community
{¶13} Accordingly, where a trial court orders restitution as part of the sentence in a criminal nonsupport case, the amount of restitution is limited to the support arrearage that accrued during the time frame encompassed by the specific charge or charges for which the defendant is convicted. In the alternative, if the defendant is sentenced to a term of community control, the trial court may, as a condition of community control, order the defendant to pay the entire outstanding child support arrearage.
{¶14} As previously stated in Peterman, we want to emphasize that our decision in no way relieves appellant of his child support obligation for the amounts that accrued outside the 48-month period; it merely limits the trial court‘s order of “restitution” to the amount which accrued during the commission of the offense for which he was convicted. Peterman at ¶9. See, also, Hubbell at ¶12.
{¶15} The assignment of error is sustained, and this case is remanded to the trial court with instructions to modify its sentence accordingly.
{¶16} Judgment reversed and remanded.
YOUNG, P.J., and POWELL, J., concur.