[Cite as State v. Rudin, 2012-Ohio-2643.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                 :       APPEAL NO. C-110747
                                                       TRIAL NO. B-0701033
          Plaintiff-Appellee,                  :

        vs.                                    :

KARL RUDIN,                                    :           O P I N I O N.

          Defendant-Appellant.                 :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 15, 2012




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

         {¶1}   Defendant-appellant Karl Rudin appeals the judgment of the Hamilton

County Court of Common Pleas revoking his community control and sentencing him

to eight years in prison, after the trial court determined that Rudin had failed to pay

restitution to the victim in accordance with the community-control sanctions

imposed on his theft conviction. Because we determine that the trial court failed to

make findings as to the reasons for Rudin’s failure to pay, which then led to his

community-control violation, we reverse the trial court’s judgment and remand the

case to the trial court to make appropriate findings.

         {¶2}   Rudin was indicted for theft from an elderly or disabled adult under

R.C. 2913.02(A)(1) for stealing $27,000 in cash from a 71-year-old bar owner,

according to the bill of particulars. Rudin entered into a plea agreement with the

state whereby Rudin agreed to plead guilty to the offense as charged with a

recommended sentence of five years of community control, which would include

paying restitution to the victim in the amount of $27,000 and participating in drug

and alcohol treatment as recommended by the probation department. At the time of

the offense, Rudin had been unemployed and struggling with ongoing drug and

alcohol issues. The recommended sentence included eight years in prison if Rudin

violated his community-control sanctions.

         {¶3}   The trial court accepted Rudin’s guilty plea and found Rudin guilty of

theft.   The trial court sentenced Rudin to five years of community control and

specifically ordered Rudin to make restitution to the victim in the amount of

$27,000, payable through the probation department in equal consecutive monthly

payments over the five-year period of community control.

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       {¶4}   Rudin had just less than one year remaining on community control

when his probation officer filed a violation with the trial court. The officer alleged

that Rudin had failed to make consecutive monthly payments toward his restitution,

and that Rudin still owed $20,530. Rudin pleaded no contest to the community-

control violation. At the revocation hearing, the trial court indicated that an off-the-

record discussion had taken place between the parties, and that the parties had

agreed to continue the matter for 60 days to allow Rudin an opportunity make

sufficient payments. Rudin stated at the hearing that he had been employed for the

past three years, and that he had “been at Cincinnati State” to enable him to get a

better job. The trial court then instructed Rudin to make restitution “a priority” and

continued the matter for 60 days.

       {¶5}   At the second hearing, counsel for Rudin stated that Rudin had left his

previous job since the first hearing and had obtained a higher paying job making

$110 a day. Rudin also had paid $1,600 toward the restitution obligation since the

first hearing. The trial court granted an additional 60-day continuance, at Rudin’s

request, and the trial court stressed to Rudin that his income should go toward

paying restitution.

       {¶6}   At the third hearing, Rudin told the trial court that he had been “let go”

from his previous job because his employer had discovered his felony theft. He had

found another job at a party store, and he was continuing to look for a second job.

Rudin requested that the trial court allow him additional time to try to obtain a loan.

Rudin also stated that he would be willing to enter into a separate agreement with

the victim to pay the remaining restitution. The trial court, however, at the request




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of the prosecutor, revoked Rudin’s community control and sentenced him to eight

years in prison, as provided in the plea agreement.

        {¶7}   In his sole assignment of error on appeal, Rudin asserts that the trial

court erred in revoking his community control and imposing an eight-year prison

term.

        {¶8}   A sentencing court has discretion in deciding whether to revoke

community control once a community-control violation has occurred.                   R.C.

2929.15(B)(1). Generally, that decision will not be reversed on appeal absent an

abuse of discretion. State v. Dockery, 187 Ohio App.3d 798, 2010-Ohio-2365, 933

N.E.2d 1155, ¶ 13 (1st Dist). If a sentencing court revokes community control solely

for nonpayment of financial obligations imposed as part of that community control,

however, then the Fourteenth Amendment to the United States Constitution is

implicated as provided in Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S.Ct. 2064,

76 L.Ed.2d 221 (1983). And we review the constitutionality of the revocation de

novo. See State v. Castellini, 1st Dist. Nos. C-110445 and C-110446, 2012-Ohio-1603,

¶ 12, citing State v. Ziepfel, 107 Ohio App.3d 646, 652, 669 N.E.2d 299 (1st

Dist.1995).

        {¶9}   In Bearden, the United States Supreme Court held that a sentencing

court in a probation revocation proceeding must, consistent with the fundamental

fairness required by the Fourteenth Amendment, inquire into the reason for a

defendant’s failure to pay a financial obligation. Bearden at 672. If the defendant

“willfully refused” or “failed to make sufficient bona fide efforts legally to acquire the

resources to pay,” then the sentencing court may revoke probation and imprison the

defendant. Id. But, if the defendant “could not pay despite sufficient bona fide

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efforts to acquire the resources to do so, the court must consider alternative

measures of punishment other than imprisonment.” Id. The sentencing court can

then imprison a defendant who has made sufficient bona fide efforts to pay, but

“[o]nly if alternative measures [of punishment] are not adequate to meet the State’s

interests in punishment and deterrence.” Id.

       {¶10} This court applied Bearden in State v. Dockery. In Dockery, this court

stated that in order “to revoke a defendant’s community control simply for the

nonpayment of court costs and fees, the defendant’s ‘failure must have been willful

and not the result of indigence.’ ” Dockery at ¶ 14, quoting State v. Douthard, 1st

Dist. Nos. C-000354 and C-000355, 2001 Ohio App. LEXIS 2895 (June 29, 2001).

The Dockery court then determined that the sentencing court had not had sufficient

evidence before it to make the necessary findings under Bearden and thus remanded

the case to the sentencing court for an evidentiary hearing. Id. at ¶ 17.

       {¶11} In this case, the record does not reflect that the trial court made the

necessary inquiry under Bearden regarding the reasons for Rudin’s failure to pay.

The record is silent as to why Rudin had failed to make restitution payments in the

four years prior to the initial community-control violation. The record contains no

information regarding Rudin’s level of income or his financial obligations during this

four-year period. The state argues that the record supports a finding that Rudin’s

failure to pay was willful. The state points out that Rudin had been attending college

classes at Cincinnati State and that the trial court felt Rudin needed to make

restitution a priority. These statements standing alone do not lead to the conclusion

that Rudin willfully failed to pay the restitution or that he did not make sufficient

bona fide efforts to pay.

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       {¶12} In fact, the record demonstrates that Rudin made some bona fide

efforts to pay toward the restitution obligation after the initial revocation hearing. In

the 60 days after Rudin’s first revocation hearing, he had obtained a higher-paying

job and had been able to pay $1,600 toward the restitution. By the third revocation

hearing, Rudin had lost his job when his employer had discovered his felony theft,

and although he had obtained another job, he had not paid toward the restitution.

The trial court then sentenced Rudin to eight years in prison at the request of the

state, in accordance with the plea agreement. Thus, because the record shows that

Rudin made some bona fide efforts to pay his restitution obligation after the initial

revocation hearing, and because the record does not contain evidence as to the

reasons for Rudin’s failure to pay prior to the initial revocation hearing as required

by Bearden, we determine that the trial court erred in revoking Rudin’s community-

control and imprisoning Rudin.

       {¶13} In conclusion, we sustain Rudin’s assignment of error. We reverse the

judgment of the trial court and remand the case for findings as to whether Rudin’s

failure to pay was willful or whether alternative measures of punishment would be

inadequate to meet the state’s interest.

                                                Judgment reversed and cause remanded.

HILDEBRANDT, P.J., CUNNINGHAM and FISCHER, JJ.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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