[Cite as State v. Anderson, 2018-Ohio-342.]


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

STATE OF OHIO                                       C.A. Nos.      16CA011068
                                                                   16CA011069
        Appellee                                                   16CA011070
                                                                   16CA011071
        v.                                                         16CA011072

LEE ANDERSON

        Appellant                                   APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
                                                    COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
                                                    CASE No.   14CR090045
                                                               14CR090048
                                                               14CR090049
                                                               14CA090050
                                                               14CR090051

                                 DECISION AND JOURNAL ENTRY

Dated: January 29, 2018



        HENSAL, Presiding Judge.

        {¶1}     Lee Anderson appeals his sentence from the Lorain County Court of Common

Pleas. We reverse and remand for further proceedings.

                                               I.

        {¶2}     This consolidated appeal stems from five separate criminal cases wherein Lee

Anderson pleaded guilty to a total of five counts of failing to pay child support in violation of

Revised Code Section 2919.21(B), felonies of the fifth degree. Relevantly, the trial court

continued the sentencing hearing to allow the parties to research whether it had the authority to
                                                 2


impose an anti-procreation condition as part of Mr. Anderson’s community control. Both parties

submitted briefs to the trial court and discussed the matter at the sentencing hearing.

       {¶3}    The trial court ultimately sentenced Mr. Anderson to community control for a

term of five years. As a condition of his community control, the trial court ordered Mr.

Anderson to “make all reasonable efforts to avoid impregnating a woman during the community

control period or until such time that [Mr. Anderson] can prove to the Court that he is able to

provide support for his children he already has and is in fact supporting the children or until a

change in conditions warrant[s] the lifting of this condition.” Mr. Anderson has appealed the

trial court’s sentence, raising one assignment of error for our review.

                                                 II.

                                   ASSIGNMENT OF ERROR

       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 1, SECTION TWENTY OF THE
       OHIO CONSTITUTION WHEN IT IMPOSED A PROBATION CONDITION
       ON APPELLANT TO TAKE REASONABLE STEPS TO AVOID
       CONCEIVING ANOTHER CHILD WHILE HE IS ON PROBATION.

       {¶4}    In his sole assignment of error, Mr. Anderson argues that the trial erred when it

ordered him to take reasonable steps to avoid conceiving another child while on community

control.   He makes two primary arguments in this regard, one of which is based upon a

constitutional challenge, the other of which is based upon the Ohio Supreme Court’s decision in

State v. Jones, 49 Ohio St.3d 51 (1990), which is a non-constitutional challenge.1 See State v.


       1
          While Mr. Anderson’s assignment of error is captioned solely as a challenge to the
constitutionality of the community-control condition, his argument as it relates to Jones is non-
constitutional and will be analyzed accordingly. See, e.g., J.B. v. B.Y., 9th Dist. Medina No.
                                                 3


Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, ¶ 11 (“Talty II”) (“[O]ur opinion in Jones * * *

addressed only a nonconstitutional challenge to the condition.”). Although Mr. Anderson’s merit

brief, at times, presents a combined analysis of these issues, we will address them separately, as

they are two distinct legal issues. Further, we must first decide whether his non-constitutional

argument is dispositive, as “courts decide constitutional issues only when absolutely necessary.”

Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, ¶ 54; Talty II at ¶ 9 (addressing the non-

constitutional challenge to a community-control condition under Jones first to determine whether

it was dispositive). We, therefore, will begin with a non-constitutional analysis under Jones.

       {¶5}    The Ohio Supreme Court’s decision in Jones, which addressed a probation

condition2 that ordered the defendant to “have no association or communication, direct or

indirect, with anyone under the age of eighteen (18) years not a member of his immediate

family[,]” “stands for the proposition that probation conditions must be reasonably related to the

statutory ends of probation and must not be overbroad.” Jones at 52; Talty II at ¶ 16. The Jones

Court began its analysis by citing the probation statute in effect at the time, which provided that a

trial court may impose a condition on probation that is related to the “interests of doing justice,

rehabilitating the offender, and insuring his good behavior[.]” Jones at 52, quoting former R.C.

2951.02(C).    The current community-control statute provides the same language, with the

exception of the replacement of “his” with “offender[.]”         See R.C. 2929.25(C)(2) (“In the



15CA0082-M, 2016-Ohio-7918, ¶ 6 (analyzing the substance, rather than the caption, of an
assignment of error).
        2
          The Ohio Supreme Court decided Jones prior to the statutory replacement of probation
with community control as a possible sentence under Ohio’s felony sentencing law. See
Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 191, 192 (2001), fn. 1. Notwithstanding, the Court
subsequently indicated that it saw “no meaningful distinction between community control and
probation for purposes of reviewing the reasonableness of their conditions[,]” and determined
that the analysis set forth in Jones remains applicable “[b]ecause community control is the
functional equivalent of probation[.]” Talty II at ¶ 16.
                                                 4


interests of doing justice, rehabilitating the offender, and ensuring the offender’s good behavior *

* *.”).

          {¶6}   After citing the statutory requirements for probation conditions, the Jones Court

set forth a three-part test for determining whether a condition meets those requirements,

providing that “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 at 53. It also observed that “conditions cannot

be overly broad so as to unnecessarily impinge upon the probationer’s liberty.” Id. at 52.

          {¶7}   While the Jones Court did not address a community-control condition similar to

the one at issue in this case, the Ohio Supreme Court’s subsequent decision in Talty II did, and

applied its reasoning from Jones. Notably, Talty II involved an appeal from this Court wherein

this Court held that a community-control condition that ordered the defendant to “make all

reasonable efforts to avoid conceiving another child while under the supervision of the * * *

Probation Department” satisfied the three-part Jones test, and that it was not overbroad. State v.

Talty, 9th Dist. Medina No. 02CA0087-M, 2003-Ohio-3161, ¶ 4, 31-34 (“Talty I”).

          {¶8}    The Ohio Supreme Court in Talty II reversed this Court on the basis that the

community-control condition was, “by any objective measure, overbroad” because it “restrict[ed

the defendant’s] right to procreate without providing a mechanism by which the prohibition can

be lifted if the relevant conduct should change.” Talty II at ¶ 20. In reaching this conclusion, the

Court distinguished the underlying facts from those in a Wisconsin Supreme Court case wherein

it upheld an anti-procreation probation condition that included a stipulation that the court would

terminate the condition if the defendant could prove that he could support his other children. Id.
                                                5


at ¶ 18, 19, citing State v. Oakley, 245 Wis.2d 447 (2001). The Talty II Court specifically “d[id]

not determine whether a mechanism that allowed the antiprocreation condition to be lifted would

have rendered the condition valid under Jones,” but stated that “such a mechanism would have

been, at the very least, an easy alternative that would have better accommodated [the

defendant’s] procreation rights at de minimis costs to the legitimate probationary interests of

rehabilitation and avoiding future criminality.” Id. at ¶ 21. Aside from determining that the

community-control condition was overbroad, the Talty II Court implicitly adopted the remainder

of this Court’s analysis of Jones from Talty I. See, e.g., Talty II at ¶ 21 (acknowledging that the

anti-procreation condition satisfied “the legitimate probationary interests of rehabilitation and

avoiding future criminality”).

       {¶9}    Now before this Court is a community-control condition of the type contemplated

under Talty II, but which the Talty II Court specifically declined to decide: an anti-procreation

condition that contains a lifting mechanism.        Despite asserting that the community-control

condition failed to satisfy the Jones test, Mr. Anderson’s merit brief provides little support for

his argument, the gist of which is that, because he was not convicted of a crime involving

procreation, the community-control condition is not reasonably related to rehabilitation. But the

Talty II Court, through its review and analysis of Talty I, has implicitly rejected this argument,

holding only that the community-control condition failed under Jones because it was overbroad.

Talty II at ¶ 20. As an intermediate court of appeals, we are bound by the Ohio Supreme Court’s

precedent. State v. Dickens, 9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25 (“An

appellate court has no authority to overrule decisions of the Ohio Supreme Court but is bound to

follow them.”). We, therefore, reject Mr. Anderson’s argument to the extent he challenges the

community-control condition under the three-part Jones test.
                                                    6


        {¶10} Our analysis under Jones, however, does not end there. As previously noted,

Jones also stands for the proposition that a community-control condition cannot be overbroad.

Talty II at ¶ 16. Mr. Anderson, however, has not developed an argument with respect to the

overbroad nature of the community-control condition. See App.R. 16(A)(7). Indeed, his merit

brief acknowledges that the Talty II Court held that the community-control condition at issue

(i.e., “make all reasonable efforts to avoid conceiving another child while under the supervision

of the * * * Probation Department”) was overbroad because it did not contain a lifting

mechanism, and further acknowledges that the community-control condition in this case does, in

fact, contain a lifting mechanism. While the Talty II Court purposefully did not decide whether

such a lifting mechanism would survive under Jones, Mr. Anderson has presented no argument

as to why it would not. Instead, he argues that the lifting mechanism contemplates acts that are

out of his control or are tied to his financial well-being, such that there is no real, meaningful

lifting mechanism. To the extent that an argument exists regarding the overbroad nature of the

community-control condition – and, thus, its failure to satisfy Jones as contemplated under Talty

II – it is not this Court’s duty to root it out. Cardone v. Cardone, 9th Dist. Summit Nos. 18349,

18673, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998) (“If an argument exists that can support

[an] assignment of error, it is not this [C]ourt’s duty to root it out.”).

        {¶11} In light of the arguments presented and the Ohio Supreme Court’s analysis in

Talty II, we find that Mr. Anderson’s non-constitutional challenge to the community-control

condition is not dispositive.     We, therefore, are compelled to address his challenge to the

constitutionality of the community-control condition. Smith, 106 Ohio St.3d 309, 2005-Ohio-

5125, at ¶ 54 (“[C]ourts decide constitutional issues only when absolutely necessary.”)
                                                   7


       {¶12} Mr. Anderson argues that the community-control condition directly impacts a

fundamental right (i.e., his right to procreate) and should be reviewed under a strict-scrutiny

standard of review. The trial court’s judgment entry, however, does not address Mr. Anderson’s

constitutional argument. Instead, it provides an analysis under Jones only. Nor does the record

contain any written decision with respect to the briefs the parties filed prior to sentencing, which

addressed the trial court’s authority to impose an anti-procreation condition. “Because this Court

acts as a reviewing court, it should not consider for the first time on appeal issues that the trial

court did not decide.” Allen v. Bennett, 9th Dist. Summit Nos. 23570, 23573, 23576, 2007-Ohio-

5411, ¶ 21. Doing so would result in this Court “usurping the role of the trial court and

exceeding its authority on appeal.” Id. We, therefore, reverse and remand the matter for the trial

court to consider Mr. Anderson’s constitutional argument in the first instance. Mr. Anderson’s

assignment of error is sustained on that basis.

                                                  III.

       {¶13} Mr. Anderson’s assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       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.
                                                8


       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 Appellee.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



CARR, J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

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

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