State v. Shufford , 2012 Ohio 3503 ( 2012 )

[Cite as State v. Shufford, 2012-Ohio-3503.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case Nos. 24846
Plaintiff-Appellee : Appellate Case Nos. 24847
:
v. : Trial Court Case Nos. 11-CR-413
: Trial Court Case Nos. 11-CR-412
BERNARD V. SHUFFORD :
: (Criminal Appeal from
Defendant-Appellant : (Common Pleas Court)
:
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OPINION
Rendered on the 3rd day of August, 2012.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
VICTOR A. HODGE, Atty. Reg. #0007298, Public Defender’s Office, 117 South Main Street,
Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} In these two appeals, defendant-appellant Bernard Shufford appeals
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from two judgments convicting him of Non-Support of Dependents, in violation of R.C.
2919.21(B), felonies of the fifth degree. He pled guilty in each case to one count. Each case
involved a different dependent child.
{¶ 2} Shufford was sentenced to community control sanctions in each case.
In each case, the sanctions included requirements that he “compl[y] with the Montgomery
County Support Enforcement Agency in SETS# [the number corresponding to each of the
respective child dependents].” Or, in other words, that he pay his court-ordered child support.
{¶ 3} Shufford contends that: (1) the above-mentioned requirements are not
permitted community control sanctions; (2) the trial court erred by delegating its judicial
authority to Ohio Child Support Payment Central, an administrative agency; and (3) the trial
court erred by creating a criminal penalty for acts (failure to pay child support) that are
statutorily enforceable by contempt proceedings.
{¶ 4} We conclude that: (1) the requirements that Shufford pay his
court-ordered child support are proper community control sanctions; (2) the trial court did not
delegate its authority to determine whether those requirements were violated; and (3) the trial
court did not create a criminal penalty for Shufford’s future failure to pay child support,
because the penalty that would be imposed if his community control sanctions were vacated
would be a consequence of his criminal convictions in these cases. Accordingly, the
judgments of the trial court are Affirmed.
I. Shufford Pleads Guilty, in Two Cases, to Non-Support,
and Community Control Sanctions Are Imposed
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{¶ 5} Shufford was charged, in each of two cases, with two counts of
Non-Support of a Dependent, in violation of R.C. 2919.21(B). Each case involved a different
dependent child, and each count involved a different two-year time period.
{¶ 6} In each case, Shufford pled guilty to one count, and the other count was
dismissed. In each case, Shufford was sentenced to community control sanctions for a period
not to exceed five years. In each case, the seventh- and eighth-numbered sanctions were as
follows:
7. A requirement that the offender complies with the Montgomery County
Support Enforcement Agency in SETS# 7045967747;
8. A requirement that the offender complies with the Montgomery County
Support Enforcement Agency in SETS# 7041158200[.]
{¶ 7} After all nine enumerated sanctions, each judgment entry continued as
follows: “to be monitored by the Montgomery County Division of Criminal Justice Services.
If you violate any condition of this sanction, or if you violate any law, the court can impose a
longer time under the same sanction, impose a more restrictive sanction, or a prison term of 11
months CRC; concurrent with case no. [the other case number].” (Underlining and bold in
original.)
{¶ 8} The second page of each judgment entry contained a line for restitution.
In one case, that line was left blank. In the other case, restitution was ordered in the amount
of $10,376.13, to Ohio Child Support Payment Central.
{¶ 9} Shufford has appealed, in two separately numbered appeals, from the
judgments against him. These appeals have been consolidated.
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II. The Trial Court Did Not Err by Requiring Shufford to Pay Court-Ordered
Child Support as a Condition of his Community Control Sanctions
{¶ 10} Shufford’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN ORDERING APPELLANT TO MAKE
PAYMENTS, OTHER THAN RESTITUTION, ON ACCOUNTS MAINTAINED BY
THE MONTGOMERY CHILD SUPPORT ENFORCEMENT AGENCY.
{¶ 11} Shufford contends that the requirements, as part of his community control
sanctions, that he pay court-ordered child support, constitute financial sanctions that are not
authorized, because they go beyond the scope of financial sanctions authorized by R.C.
2929.18. That statute authorizes as a financial sanction: “Restitution by the offender to the
victim of the offender’s crime or any survivor of the victim, in an amount based on the
victim’s economic loss.” R.C. 2929.18(A)(1). Therefore, Shufford argues, although he
could be required to pay the child support that he was convicted of not having paid, he cannot
be required to pay child support, the non-payment of which was not the basis of his
conviction, including, of course, future child support.
{¶ 12} We have recognized a distinction between restitution, ordered unconditionally
as part of a criminal sanction, and conditions of community control sanctions requiring the
payment of court-ordered support. In State v. Craft, 2d Dist. Greene No. 2001-CA-128,
2002-Ohio-5127, a case cited by Shufford, we said at p. 2, “ * * * we see no meaningful
distinction between conditions of probation and conditions in community control sanctions.”
In each instance, an offender is spared incarceration, subject to a condition, the violation of
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which will result in the imposition of a prison sentence for the criminal act of which the
offender was convicted.
{¶ 13} In State v. Hubbell, 2d Dist. Darke No. 1617, 2004-Ohio-398, ¶ 11-13, we
made a distinction between the payment of court-ordered child support as restitution and the
payment of court-ordered child support as a condition of community control:
We turn, therefore, to whether the trial court properly required Hubbell to pay
restitution in the amount of $49,264.33. At this juncture, we find it significant
whether the trial court imposed restitution as a condition of Hubbell's community
control sanctions or, on the other hand, as a part of his sentence for the two years of
nonsupport. In general, “[r]estitution is limited to the actual loss caused by the
offender's criminal conduct for which he was convicted. ‘Thus, restitution can be
ordered only for those acts that constitute the crime for which the defendant was
convicted and sentenced.’ ” State v. Hicks, Butler App. No. CA2002-08-198,
2003-Ohio-7210 (quoting State v. Hafer (2001), 144 Ohio App.3d 345, 348, 760
N.E.2d 56, 2001-Ohio-2412 ). In Sutherland, we held that a trial court does not have
the authority to force a defendant to pay restitution on damages which did not result
from the criminal acts to which he had pled guilty. Sutherland, supra (reversing a
trial court ordering the defendant to pay restitution for an arson at a church when he
was neither charged nor convicted of that arson); see also State v. Agbesua (Jan. 5,
2001), Greene App. No.2000CA23. Thus, if 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
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indictment. We emphasize, however, that this limitation in criminal sentencing in no
way relieves the offender of his duty to pay his child support arrearage in the court that
has issued the underlying child support orders.
As for community control sanctions, a court may impose conditions that relate to the
interest of doing justice, rehabilitate the offender, and insure his good behavior. See State v.
Jones (1990), 49 Ohio St.3d 51, 550 N.E.2d 469; State v. Craft, Greene App.
No.2001-CA-128, 2002-Ohio-5127 (applying Jones and noting that “we see no meaningful
distinction between conditions of probation and conditions in community control sanctions”).
The supreme court has held that in determining whether a condition of probation satisfies that
test, “courts should consider whether the 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 criminality and serves
the statutory ends of probation.” Jones, 49 Ohio St.3d at 53, 550 N.E.2d 469. Under R.C.
2929.15 and R.C. 2929.18, the trial court may impose financial sanctions as a condition of
community control, including but not limited to restitution and fines. In our judgment, the
requirement that an offender of felony nonsupport of dependents make payments on his total
arrearage would satisfy the Jones criteria, even though such an amount goes beyond a
permissible amount of restitution. E.g., Herring, supra; Lizanich, supra; State v. Karnes
(Mar. 29, 2001), Athens App. No. 99CA042. (Emphasis added.)
{¶ 14} Shufford argues that the above-quoted passage from Hubbell is
distinguishable because the condition of Shufford’s community control sanctions goes beyond
the payment of child-support arrearages – it includes the payment of court-ordered child
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support in the future. We see no material distinction. Shufford’s payment of court-ordered
child support is reasonably related to his rehabilitation from the offense of non-support, of
which he was convicted; it also bears a reasonable relationship, at least, to the offense of
which he was convicted; and it is arguably reasonably related to future criminality. For these
reasons, the requirement that he pay court-ordered child support as it becomes due in the
future is a reasonable condition of his community control sanctions.
{¶ 15} In Hubbell, supra, ¶ 25-26, we reversed an order to pay support corresponding
to time periods outside the scope of that defendant’s conviction as not proper restitution, when
the order expressly denominated the ordered payment as restitution. By contrast, in the cases
before us, the general requirement to pay court-ordered support is expressly denominated as a
condition of community control, not as restitution. In one of those cases, restitution in the
amount of $10,366.13 was ordered. Shufford does not contend that this order of restitution
does not correspond to the time period of the offense in that case. Indeed, the provision for
restitution in that amount was reflected in the written guilty plea that Shufford tendered in
open court, indicating that he agreed to pay restitution in that amount.
{¶ 16} Shufford’s First Assignment of Error is overruled.
III. The Trial Court Did Not Delegate its Judicial Authority
to an Administrative Agency
{¶ 17} Shufford’s Second Assignment of Error is as follows:
THE TRIAL COURT ERRED IN DELEGATING ITS JUDICIAL
AUTHORITY TO OTHER ENTITIES.
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{¶ 18} In one of Shufford’s cases, 2011 CR 00412, corresponding to Montgomery
App. No. 24847, the third-numbered condition of community control was: “A requirement
that the offender pays restitution in the amount of [$]10,376.13 to Ohio Payment Central with
a payment schedule to be arranged by that agency[.]” The second page of the judgment entry
in that case included an order of restitution in that amount to Ohio Child Support Payment
Central.
{¶ 19} Shufford contends that by providing that the payment schedule for the
payment of restitution be arranged by Ohio Child Support Payment Central, the trial court
impermissibly delegated its authority to regulate the payment of restitution to an
administrative agency. Shufford argues alternatively, and somewhat inconsistently, that this
provision is meaningless because the Ohio Child Support Payment Central is just a repository
for the payment of support, with payments from obligors coming in, and payments to obligees
going out.
{¶ 20} Shufford cites two cases in support of his argument that the trial court
impermissibly delegated its authority. One of these is Cangemi v. Cangemi, 8th Dist.
Cuyahoga No. 84678, 2005-Ohio-772. In that case, “the trial court allowed the parties to
have a private judge hear and decide their [divorce] case and agreed to ‘rubber-stamp’ his
decision in an effort to make that decision appealable to [the 8th District Court of Appeals.]”
Id., ¶ 24. That is not what happened here.
{¶ 21} The other case Shufford cites is State v. Fair, 2d Dist. Montgomery No. 8081,
1983 WL 2500 (October 14, 1983). In that case, the trial court expressly delegated to a police
detective the “sole discretion” to determine whether the defendant complied with the terms of
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a plea agreement requiring his cooperation with the police. Id., p.1. It was expressly “agreed
that the Defendant realizes that no other hearing will be held on the reasonableness of
Detective Taylor’s action.” Id., p.2. By contrast, in the case before us, the trial court has not
abdicated its responsibility, ultimately, to determine whether its restitution order has been
complied with. If a dispute arises whether Shufford has complied with the trial court’s order
of restitution, he will have an opportunity to be heard by the trial court, including the
opportunity to present any defenses available to him.
{¶ 22} Shufford makes a similar argument with respect to the requirement, as a
condition of his community control sanction, that he pay court-ordered child support. Again,
if the State should claim that he has failed this condition, and seek to have his community
control sanctions revoked, the trial court would hold a hearing at which Shufford could
dispute that claim, and present any defenses available to him.
{¶ 23} As the State points out, one court of appeals has held, and another has stated
in dictum, that although a trial court may make the payment of court-ordered child support a
condition of probation, pursuant to R.C. 3113.04(A) it is the child support enforcement
agency, not the court, that should determine the amounts of periodic support due. State v.
Lizanich, 93 Ohio App.3d 706, 711, 639 N.E.2d 855 (10th Dist. 1994); State v. Williams, 12th
Dist. Butler No. CA97-10-202, 1998 WL 265006 (May 26, 1998), p. 4.
{¶ 24} Shufford’s Second Assignment of Error is overruled.
IV. By Requiring Shufford to Pay Court-Ordered Child Support,
as a Condition of Community Control Sanctions, the Trial Court
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Has Not Created a Criminal Penalty for the Violation of that Condition
{¶ 25} Shufford’s Third Assignment of Error is as follows:
THE TRIAL COURT HAS ENCROACHED UPON THE POWERS OF THE
LEGISLATURE BY JUDICIALLY CREATING A CRIMINAL PENALTY FOR
VIOLATIONS WHICH ARE STATUTORILY ENFORCEABLE BY CONTEMPT
PROCEEDINGS.
{¶ 26} Shufford argues that by making the payment of his court-ordered child support
a condition of his community control sanctions, the trial court has “effectively criminalize[d]
conduct for which the legislature has prescribed a contempt remedy.” But as the State points
out, when community control sanctions are vacated because the offender has failed to comply
with the conditions thereof, the new sentence imposed is not punishment for the failure to
comply with the conditions of community control; it is punishment for the crime of which the
offender was convicted.
{¶ 27} In State v. Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, a
defendant had his community control sanctions, imposed as a sentence for non-support,
revoked because of his failure to comply with the requirement that he support his dependents.
He argued that the prohibition against double jeopardy precluded his being convicted of
criminal non-support based upon the same failure to provide support that had led to the
revocation of his community control sanctions. We rejected that argument, holding that “ * *
* upon finding that a community control violation occurred based on a violation of law, the
trial court's imposition of a prison sentence is not a punishment for the new offense but, rather,
is a ‘continuing consequence of the original conviction.’ ” Id. ¶ 13.
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{¶ 28} Even when a term of incarceration is imposed for violation of a requirement of
post-release control, that term of incarceration is deemed attributable to the original
conviction, not to the act giving rise to the found violation of post-release control. State v.
Martello, 97 Ohio St.3d 398, 2002-Ohio-666, 780 N.E.2d 250, ¶ 26.
{¶ 29} We agree with the State that Shufford’s criminal conduct consists of the two
counts of Non-Support of Dependents to which he pled guilty, not potential violations of the
conditions of the community control sanctions to which he was sentenced.
{¶ 30} Shufford’s Third Assignment of Error is overruled.
V. Conclusion
{¶ 31} All of Shufford’s assignments of error having been overruled, the judgments
of the trial court are Affirmed.
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FROELICH and FRENCH, JJ., concur.
(Hon. Judith L. French, Tenth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
Andrew T. French
Victor A. Hodge
Hon. Michael Tucker