[Cite as State v. Scates, 2014-Ohio-1284.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
JOSEPH W. SCATES
Defendant-Appellant
Appellate Case No. 25825
Trial Court Case No. 2012-CR-2089
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 28th day of March, 2014.
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MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting
Attorney, 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
ROBERT L. SCOTT, Atty. Reg. No. 0086785, 8801 North Main Street, Suite 200, Dayton, Ohio
45415
Attorney for Defendant-Appellant
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WELBAUM, J.
{¶ 1} We are asked to decide if the trial court ordered excessive restitution in this case
that did not result from the criminal acts to which the Appellant was convicted. The parties agree
that the trial court erred. We agree with the parties and reverse the order of restitution and remand
to the trial court to hold a hearing to determine restitution.
{¶ 2} The Montgomery County Grand Jury indicted Appellant, Joseph Scates on four
counts of nonsupport of dependents in violation of R.C. 2919.21(B), fifth degree felonies. Scates
entered a plea of guilty to counts one and four of the indictment. Prior to the pleas, the State
indicated the amount of restitution for count one was $18,436.98 and on count two the amount
was $56,539.96. The court relied upon these representations. The trial court sentenced Scates to
concurrent nine month prison sentences to be served concurrently with a six year prison term
Scates was serving from a Clark County conviction.
ASSIGNMENT OF ERROR
{¶ 3} Scates’ assignment of error states:
The trial court erred by imposing an excessive restitution amount that did
not result from the criminal acts to which the defendant-appellant plead guilty.
{¶ 4} Scates notes that count one of the indictment pertains to the period of June 1,
2007 through May 31, 2009. The trial court ordered Scates to pay $18,436.98 restitution for this
24-month period. This is approximately $802.00 a month. The trial court also ordered Scates to
pay $56,539.96 restitution for the nine-month period of October 1, 2011 through June 30, 2012,
alleged in count four of the indictment. This is approximately $6,282.21 a month.
{¶ 5} It is significant whether a trial court imposed restitution as a condition of
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community control or as part of the sentence. If the restitution is imposed as a condition of
community control, the requirement that the offender make payments on his total arrearage is
permitted even if such amount goes beyond a permissible amount of restitution. State v.
Hubbell, 2d Dist., Darke No. 1617, 2004-Ohio-398, ¶ 13, quoting State v. Jones, 49 Ohio St.3d
51, 550 N.E.2d 469 (1990); State v. Craft, 2d Dist. Greene No. 2001-CA-128, 2002-Ohio-5127.
{¶ 6} Here, the trial court’s restitution order was part of a prison sentence. Therefore,
restitution is limited to the amount of nonsupport arrearage accrued within the time period
included in the indictment. State v. Hubbell, Id., at ¶ 11. This limitation does not relieve the
offender of his duty to pay the child support arrearage in the court that has issued the underlying
child support orders. Id., at ¶ 12.
{¶ 7} We agree with the parties that on its face, the trial court order imposed restitution
beyond the time periods specified in the two counts of the indictment. Accordingly, we also agree
with the parties that Scates’ assignment of error has merit. We reverse the trial court order of
restitution and remand to the trial court to hold a hearing to determine restitution.
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FAIN and DONOVAN, JJ., concur.
Copies mailed to:
Mathias H. Heck
Michele D. Phipps
Robert L. Scott
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Hon. Michael Tucker