[Cite as State v. Anderson, 2019-Ohio-3534.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       18CA011376

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LEE ANDERSON                                          COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE Nos. 14CR090045
                                                                 14CR090048
                                                                 14CR090049
                                                                 14CR090050
                                                                 14CR090051

                                 DECISION AND JOURNAL ENTRY

Dated: September 3, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Defendant-Appellant, Lee Anderson, appeals from the judgment of the Lorain

County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     Mr. Anderson pleaded guilty to five counts of felony non-support, having failed to

pay child support in five different cases over several years. The trial court notified the parties

that it intended to impose an anti-procreation condition upon Mr. Anderson as part of his

sentence and gave them an opportunity to brief the constitutionality of such a condition. It

ultimately imposed a sentence of five years of community control and ordered, as a condition of

that sentence, that Mr. Anderson “make all reasonable efforts to avoid impregnating a woman

during the community control period or until such time that [he] can prove to the Court that he is
                                                  2


able to provide support for his children he already has and is in fact supporting the children or

until a change in conditions warrant the lifting of this condition.”

       {¶3}    Mr. Anderson appealed from his sentence and challenged the anti-procreation

condition on both constitutional and non-constitutional grounds. See State v. Anderson, 9th Dist.

Lorain Nos. 16CA011068, 16CA011069, 16CA011070, 16CA011071 & 16CA011072, 2018-

Ohio-342. We rejected his non-constitutional challenges, but declined to review the remainder

of his argument. Id. at ¶ 9-12. Because the trial court’s judgment entry did not address Mr.

Anderson’s constitutional challenges, we reversed and remanded the matter for the trial court to

consider his constitutional arguments in the first instance. Id. at ¶ 12.

       {¶4}    On remand, Mr. Anderson filed an additional brief in support of his argument, and

the trial court conducted a short hearing.        The court ultimately rejected Mr. Anderson’s

arguments and found its anti-procreation condition to be constitutionally sound. It, therefore,

sentenced Mr. Anderson to five years of community control and ordered him subject to the same

anti-procreation condition that it had imposed in its original judgment entry. It further ordered

him to pay restitution and past court-ordered child support arrearages in each of his five cases.

The total amount that the court imposed exceeded $100,000.

       {¶5}    Mr. Anderson now appeals from the trial court’s judgment and raises two

assignments of error for our review.

                                                 II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT INFRINGED APPELLANT’S DUE PROCESS AND
       EQUAL   PROTECTION    RIGHTS  UNDER     THE  FOURTEENTH
       AMENDMENT TO THE CONSTITUTION AND ARTICLE I, SECTIONS
       ONE, TWO, AND SIXTEEN OF THE OHIO CONSTITUTION AND
       APPELLANT’S RIGHT TO PRIVACY UNDER THE NINTH AMENDMENT
       TO THE CONSTITUTION AND ARTICLE I, SECTION TWENTY OF THE
                                                 3


       OHIO CONSTITUTION WHEN IT IMPOSED A PROBATION CONDITION
       ON APPELLANT TO TAKE REASONABLE STEPS TO AVOID
       CONCEIVING ANOTHER CHILD WHILE HE IS ON PROBATION.

       {¶6}    In his first assignment of error, Mr. Anderson argues that the trial court erred

when it ordered him to comply with the anti-procreation condition of his community control. He

challenges the condition on both non-constitutional and constitutional grounds.            For the

following reasons, this Court rejects his arguments.

       {¶7}    “The doctrine of law of the case ‘provides that the decision of a reviewing court

in a case remains the law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels.’” State v. Chapman, 190 Ohio

App.3d 528, 2010-Ohio-5924, ¶ 7 (9th Dist.), quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).

The doctrine “is rooted in principles of res judicata and issue preclusion * * *.” State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 35. “Res judicata bars the assertion of claims against a

valid, final judgment of conviction that have been raised or could have been raised on appeal.”

State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59. It “promotes the principles of

finality and judicial economy by preventing endless relitigation of an issue on which a defendant

has already received a full and fair opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, ¶ 18.

       {¶8}    To the extent Mr. Anderson has challenged the anti-procreation condition on non-

constitutional grounds, his argument is barred by the doctrines of law of the case and res

judicata.   During his first appeal, Mr. Anderson challenged the same condition on non-

constitutional grounds.    See Anderson, 2018-Ohio-342, at ¶ 4.          This Court rejected his

arguments, finding that he failed to show the condition offended either the three-part test

enunciated in State v. Jones, 49 Ohio St.3d 51 (1990), or Jones’ prohibition against overbroad
                                                  4


conditions. See id. at ¶ 9-11. We remanded the matter to the trial court solely for it to consider

Mr. Anderson’s constitutional challenge in the first instance. See id. at ¶ 12. Thus, Mr.

Anderson already had a full and fair opportunity to present this Court with his non-constitutional

challenge, and he may not now relitigate that issue. See Ketterer at ¶ 59; Saxon at ¶ 18. Under

the law of the case doctrine, our prior decision is dispositive. See Nolan at 3. We, therefore,

limit our review to the merits of Mr. Anderson’s constitutional challenge.

       {¶9}    Appellate courts generally “review [a] trial court’s imposition of community-

control sanctions under an abuse-of-discretion standard.” State v. Talty (“Talty II”), 103 Ohio

St.3d 177, 2004-Ohio-4888, ¶ 10. Yet, a de novo standard of review applies when a reviewing

court is presented with a constitutional challenge.     State v. Honey, 9th Dist. Medina No.

08CA0018-M, 2008-Ohio-4943, ¶ 4. “A de novo review requires an independent review of the

trial court’s decision without any deference to [its] determination.” State v. Consilio, 9th Dist.

Summit No. 22761, 2006-Ohio-649, ¶ 4.

       {¶10} “It is undisputed that the right to procreate is considered fundamental under the

United States Constitution * * *.” Talty II at ¶ 8. Mr. Anderson contends that, because the anti-

procreation condition infringes upon his fundamental right to procreate, it is subject to strict-

scrutiny review. He argues that it was the State’s burden to prove that the condition was

narrowly tailored to meet a compelling state interest. See, e.g., State v. Lowe, 112 Ohio St.3d

507, 2007-Ohio-606, ¶ 18. Because the State failed to do so, he argues, the anti-procreation

condition is unconstitutional and cannot stand.

       {¶11} On more than one occasion, this Court has recognized that probation conditions,

even when they infringe upon fundamental rights, are valid so long as they satisfy the test set

forth in State v. Jones, supra. See State v. Conkle, 129 Ohio App.3d 177, 179 (9th Dist.1998),
                                                5


appeal not allowed, 84 Ohio St.3d 1433; State v. Brillhart, 129 Ohio App.3d 180, 184 (9th

Dist.1998); State v. Talty (“Talty I”), 9th Dist. Medina No. 02CA0087-M, 2003-Ohio-3161, ¶

15-17, rev’d on other grounds, Talty II, 103 Ohio St.3d 177, 2004-Ohio-4888. Strict-scrutiny

review is not warranted in those instances because probationers “do not enjoy the same degree of

liberty as citizens who have not violated the law.” State v. Oakley, 245 Wis.2d 447, 466 (2001).

Accord Talty I at ¶ 18; Brillhart at 184; State v. Taylor, 9th Dist. Lorain Nos. 13CA010366,

13CA010367, 13CA010368 & 13CA010369, 2014-Ohio-2001, ¶ 22 (Carr, J., concurring in

judgment only). “As long as a condition of probation meets [the Jones] test, the imposition of

the condition is not grounds for reversal.” Conkle at 179. Moreover, the Jones test “applies with

equal force to community-control sanctions.” Talty II at ¶ 16.

       {¶12} Mr. Anderson has made no attempt to distinguish the foregoing case law or to

explain why this Court ought to abandon its precedent. See App.R. 16(A)(7); Cardone v.

Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). Accordingly, we

abide by our prior decisions and reject his argument that the anti-procreation condition is subject

to strict-scrutiny review. See Conkle at 179; Brillhart at 184; Talty I at ¶ 15-16. Because the

anti-procreation condition is not subject to heightened review and we have already rejected Mr.

Anderson’s argument that the condition must fail on non-constitutional grounds, see Anderson,

2018-Ohio-342, at ¶ 9-11, we conclude that his argument lacks merit. Accordingly, his first

assignment of error is overruled.

                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       ORDERED RESTITUTION IN EXCESS OF THE ARREARS THAT
       ACCRUED DURING THE PERIOD IN THE INDICTMENT.
                                                  6


       {¶13} In his second assignment of error, Mr. Anderson argues that the trial court erred

when it ordered him to pay restitution and child support arrearages in one lump sum. He

acknowledges that the court had the authority to impose both awards, see State v. Hodge, 9th

Dist. Lorain No. 14CA010648, 2015-Ohio-3724, ¶ 5-9, and has not challenged the amounts due.

Instead, he asks us to address “whether it is proper for the court to address the restitution and

arrears as one whole amount.” He asserts that it could be important to know the exact amounts

attributable to each in the event “there is a forgiveness or a reduction * * *.”

       {¶14} The record reflects that Mr. Anderson did not object to the court’s

restitution/arrearage award on the foregoing basis or otherwise raise this issue in the lower court.

He only objected to the court’s award on the basis that it encompassed a timeframe outside his

indictment period; an argument he has since abandoned. Because Mr. Anderson failed to object

or otherwise raise this issue in the lower court, he has forfeited this issue for appeal. See State v.

Ford, 9th Dist. Summit No. 26073, 2012-Ohio-1327, ¶ 6. While the forfeiture would not

preclude him from raising a claim of plain error, Mr. Anderson has not done so. See id. This

Court, therefore, rejects his argument on the basis that he has not preserved it for appeal. See

State v. Stevens, 9th Dist. Medina Nos. 16CA0033-M & 16CA0034-M, 2017-Ohio-5482, ¶ 21

(“When an appellant does not develop a plain error argument in his brief, this Court will not

create one on his behalf.”). Mr. Anderson’s second assignment of error is overruled.

                                                 III.

       {¶15} Mr. Anderson’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                   Judgment affirmed.
                                                 7




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

GIOVANNA V. BREMKE, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and JENNIFER GOODALL, Assistant Prosecuting
Attorney, for Appellee.
