[Cite as State v. Shufford,

.]

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) : ...........

OPINION

Rendered on the 3rd day of August, 2012.

...........

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

.............

FAIN, J.

{¶ 1} In these two appeals, defendant-appellant Bernard Shufford appeals 2

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 3

{¶ 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. 4

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,

, 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 5

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,

, 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,

(quoting State v. Hafer (2001),

,

,

). 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 6

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),

,

; State v. Craft, Greene App.

No.2001-CA-128,

(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,

,

. 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 7

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

, 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. 8

{¶ 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,

. 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,

(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 9

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,

,

(10th Dist. 1994); State v. Williams, 12th

Dist. Butler No. CA97-10-202,

(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 10

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,

, 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. 11

{¶ 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,

,

,

.

{¶ 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.

.............

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