[Cite as State v. Conde, 2021-Ohio-4222.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 20AP-485
v. : (C.P.C. No. 15CR-2539)
James E. Conde, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 2, 2021
On brief: G. Gary Tyack, Prosecuting Attorney, and
Michael P. Walton, for appellee. Argued: Michael P. Walton.
On brief: Soroka and Associates, LLC, Roger Soroka, and
Joshua Bedtelyon, for appellant. Argued: Joshua Bedtelyon.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Defendant-appellant, James E. Conde, appeals the October 14, 2020
judgment of the Franklin County Court of Common Pleas revoking his community control
and sentencing him to prison. For the following reasons, we reverse and remand.
I. Facts and Procedural History
{¶ 2} On August 27, 2015, appellant pled guilty to Count 2, theft in violation of R.C.
2913.02, a felony of the third degree, and Counts 3, 4, 5, and 6, all forgery in violation of
R.C. 2913.31, felonies of the fifth degree. By judgment entry filed October 22, 2015, the trial
court imposed a sentence of five years community control. As one of the conditions of
community control, the court also ordered appellant to pay restitution in the amount of
$248,831.
No. 20AP-485 2
{¶ 3} On July 6, 2020, a probation officer of the court filed a request for revocation
of community control, alleging violations by appellant for failure to make restitution
payments. The probation officer indicated the balance due on restitution was $246,971. On
October 14, 2020, the trial court held a hearing and filed an entry revoking probation and
imposing a prison sentence.
II. Assignment of Error
{¶ 4} Appellant appeals and assigns the following sole assignment of error for our
review:
THE TRIAL COURT DENIED APPELLANT DUE PROCESS
AND EQUAL PROTECTION OF LAW BY REVOKING HIS
PROBATION DUE TO HIS FAILURE TO PAY HIS
RESTITUTION IN FULL WITHOUT FIRST MAKING THE
DETERMINATION THAT HE WILLFULLY DID NOT PAY.
III. Analysis
{¶ 5} Recently, in State v. McDaniel, 10th Dist. No. 18AP-875, 2019-Ohio-4996,
this court held:
Under Ohio law, "[a] trial court may impose restitution as a
condition of probation," and it is generally "within the trial
court's discretion to revoke probation where the probationer
has failed to make restitution." State v. Conway, 10th Dist.
No. 05AP-358, 2006-Ohio-288, ¶ 11. However, "when a claim
is made that the revocation of community control and
imposing a prison term violates constitutional rights, the
analysis becomes a question of law" in which de novo review
is applicable. State v. Burgette, 4th Dist. No. 13CA50, 2014-
Ohio-3483, ¶ 10. If a trial court revokes community control for
non-payment of financial obligations imposed as part of that
community control, "the Fourteenth Amendment to the
United States Constitution is implicated as provided in
Bearden v. Georgia, 461 U.S. 660, * * * (1983)." State v.
Rudin, 1st Dist. No. C-110747, 2012-Ohio-2643, ¶ 8.
In Bearden, the United States Supreme Court considered
whether it was constitutionally permissible for a court to
revoke an indigent defendant's probation and order him to
serve the remaining portion of the probationary period in
prison because of his failure to pay a fine and restitution,
holding in part:
No. 20AP-485 3
[I]n revocation proceedings for failure to pay a fine or
restitution, a sentencing court must inquire into the reasons
for the failure to pay. If the probationer willfully refused to pay
or failed to make sufficient bona fide efforts legally to acquire
the resources to pay, the court may revoke probation and
sentence the defendant to imprisonment within the
authorized range of its sentencing authority. If the
probationer could not pay despite sufficient bona fide efforts
to acquire the resources to do so, the court must consider
alternative measures of punishment other than
imprisonment. Only if alternative measures are not adequate
to meet the State's interests in punishment and deterrence
may the court imprison a probationer who has made sufficient
bona fide efforts to pay. To do otherwise would deprive the
probationer of his conditional freedom simply because,
through no fault of his own, he cannot pay the fine. Such a
deprivation would be contrary to the fundamental fairness
required by the Fourteenth Amendment.
Id. at 672-73.
Ohio courts, applying the above principles in Bearden, have
held that a trial court, before revoking community control and
re-imposing a suspended prison sentence, is "required to not
only inquire into the reasons for his failure to make full
restitution payments, but also find that he had ' "willfully
refused to pay or [had] failed to make sufficient bona fide
efforts legally to acquire the resources to pay" ' restitution."
***
Here, the trial court could only order appellant to serve a
prison term if it determined "she failed to pay restitution and
either (1) she did so willfully or intentionally by not making a
bona fide effort, or (2) despite her bona fide efforts, an
alternative means of punishment would not be 'adequate to
meet the State's interests in punishment and deterrence.' "
Estright at ¶ 13, quoting Bearden at 672. This court has held
that "[f]acts sufficient to establish the degree of willfulness
required to support revocation must be developed in the
record." State v. Hudson, 10th Dist. No. 00AP-236 (Nov. 14,
2000).
Where the record is lacking with respect to the "analysis and
findings required by Bearden and its progeny," a "reversal and
remand is appropriate for the trial court to hold an evidentiary
hearing in accordance with Bearden." Burgette at ¶ 25. See
No. 20AP-485 4
also Estright at ¶ 13 ("Because the record does not reflect that
the court performed the analysis and made the findings
required by Bearden, we must remand this matter for the
court 'to hold an evidentiary hearing in accordance with
Bearden.' ").
(Fn. omitted.) Id. at ¶ 10-15.
{¶ 6} Here, the trial court held a resentencing hearing on October 14, 2020
pursuant to R.C. 2929.19. At the hearing, appellant stipulated to the violations and
presented evidence in mitigation. The court revoked probation and imposed 24 months as
to Count 2, 6 months as to Count 3, 6 months as to Count 4, 6 months as to Count 5, and 6
months as to Count 6. The court ordered that Counts 2, 3, 4, 5, and 6 be served concurrently
with each other for a total of 24 months in prison, with 90 days of jail-time credit certified
to the Ohio Department of Rehabilitation and Correction.
{¶ 7} Appellant argues that the trial court erred in imposing the sentence at the
revocation hearing as it did not make any findings. Plaintiff-appellee, State of Ohio, agrees
and concedes as follows:
The only problem in this case is that [the] trial court failed to
make a finding either that 1) the failure to pay was willful or
2) despite a bona fide effort, an alternative means of
punishment would not be adequate, given the State's interest
in punishment and deterrence in this case. The State submits
that either of those findings could be made based upon the
record as it exists. However, a remand is necessary in order
for the trial court to actually make its findings based upon the
record. Accordingly, the State concedes error as to
[appellant's] assignment of error and submits that this matter
should be remanded with instructions to make the findings
required by McDaniel before revoking [appellant's]
community control.
(Appellee's Brief at 6.)
{¶ 8} Accordingly, we sustain appellant's sole assignment of error and remand this
matter to the trial court to conduct a hearing and make findings in accordance with the
requirements of Bearden.
IV. Conclusion
{¶ 9} Based on the foregoing, appellant's sole assignment of error is sustained, the
judgment of the Franklin County Court of Common Pleas is reversed, and this matter is
No. 20AP-485 5
remanded to that court for further proceedings in accordance with law and consistent with
this decision.
Judgment reversed and cause remanded.
LUPER SCHUSTER and JAMISON, JJ., concur.