State v. PetermanState v. Peterman
Scott N. Blauvelt, 246 High Street, Hamilton, OH 45011, for defendant-appellant
POWELL, J.
{¶1} Defendant-appellant, Richard Peterman, appeals the Butler County Court of Common Pleas’ award of restitution after appellant pled guilty to nonsupport of dependents.
{¶2} Appellant was indicted on two counts of nonsupport of dependents for failing to support his son, a violation of
{¶3} Assignment of Error No. 1:
{¶4} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN IMPOSING AS PART OF HIS SENTENCE $34,971.79 IN CHILD SUPPORT ARREARAGES AS RESTITUTION.”
{¶5} In his first assignment of error, appellant challenges the trial court‘s order that he pay $34,971.79 in restitution, because the amount the trial court ordered is greater than the amount owed pursuant to the crime for which his was convicted; and because the trial court failed to find that he had the present and future ability to pay the restitution order. We agree.
{¶6} ”
{¶7} Appellant argues that there is nothing in the record to support the trial court‘s decision to impose a $34,971.79 order for restitution. Appellant maintains that he was indicted for and pled guilty to a violation of
{¶8} In Hubbell, the Second Appellate District explained, “[i]f a trial court requires a defendant to pay restitution as a part of his sentence for felony nonsupport of dependents, the court is limited to the amount of arrearage that accrued within the time period included in the indictment.” (Emphasis added.) Id. at ¶11. The Second District opined that Hubbell had failed to pay child support over several years which resulted in a considerable arrearage; however, the economic loss suffered by the victim in that case was only the unpaid child support payments for the two-year period in which the offense was committed. Id. at ¶27. The Hubbell court found that
{¶9} It appears from the record that the trial court ordered appellant to pay an amount of restitution greater than the amount which accrued during the two-year period from July 1, 2006 to June 30, 2008. We find the trial court was limited to only ordering restitution for the arrearage which accrued during the time period appellant committed the offense. Accord Hubbell at ¶11, 27. See, also, Friend, 68 Ohio App.3d at 243; Warner, 55 Ohio St.3d at 69-70; Hicks, 2003-Ohio-7210 at ¶44. Therefore, on remand, the trial court must modify the amount of restitution to reflect the amount of unpaid support accrued from July 1, 2006 to June 30, 2008.
{¶10} In reaching this judgment, we want to emphasize that our decision in no way relieves appellant of the child support obligation he has accrued with respect to his son.1 See Hubbell at ¶12. Instead, our resolution of this matter merely restricts the trial court from ordering restitution in amount greater than that which accrued during the commission of the offense for which appellant was convicted.
{¶11} Appellant also argues the trial court failed to determine appellant had the present and future ability to pay the amount of restitution the court ordered. In particular, appellant maintains he has been unemployed for approximately five years and has physical disabilities which prohibit him from seeking employment.
{¶12} “[B]efore a trial court may impose a financial sanction [pursuant to
{¶13} In Simms, this court found “the information before the trial court, in the form of statements made by [Simms] and the trial court, and the court‘s reference to the PSI in the sentencing hearing and journal entry, indicates that the court complied with
{¶14} As in Simms, the trial court in the instant case made no reference at the sentencing hearing to appellant‘s present or future ability to pay the financial sanction the court imposed. Instead, like Simms, the trial court stated in its final judgment entry that it “considered the record, the charges, the defendant‘s Guilty Plea, and findings as set forth on the record and herein, oral statements, any victim impact statement and pre-sentence report * * * and the defendant‘s present and future ability to pay the amount of any sanction * * *.” Although, appellant‘s PSI contained information regarding his age, education level, and family/marital status, it also indicated that appellant suffered from physical ailments, had been unemployed for several years, and had no financial assets. Prior to sentencing, the trial court also learned that appellant had not worked since 2004, made several filings for Social Security benefits, had back problems and chronic obstructive pulmonary disease, had been living with his parents, and had no income. Thus, unlike the situation in Simms, there is evidence in the record to suggest that upon appellant‘s release from confinement he may be unable to seek employment. Based on the record before this court, we are unable to determine if the trial court complied with the requirements of
{¶15} Assignment of Error No. 2:
{¶16} “APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL TO HIS PREJUDICE AND IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
{¶17} In his second assignment of error, appellant maintains his trial counsel was ineffective for failing to object to the court‘s restitution order. Based upon our resolution of appellant‘s first assignment of error, his second assignment of error is rendered moot. See
{¶18} Therefore, we vacate the trial court‘s order of restitution and reverse and remand this matter to trial court for further proceedings in accordance with this opinion.
{¶19} Judgment reversed and remanded.
BRESSLER, P.J., and HENDRICKSON, J., concur.