[Cite as State v. Sheesley, 2015-Ohio-4565.]


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

STATE OF OHIO                                         C.A. No.      27585

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DENNIS J. SHEESLEY, JR.                               COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 11 02 0418

                                  DECISION AND JOURNAL ENTRY

Dated: November 4, 2015



        MOORE, Judge.

        {¶1}     Appellant, Dennis Sheesley, appeals an order of the Summit County Court of

Common Pleas that extended his period of community control. This Court affirms.

                                                 I.

        {¶2}     In 2011, Mr. Sheesley pleaded guilty to two charges of receiving stolen property.

The trial court sentenced him to two years of community control. The conditions required Mr.

Sheesley to pay restitution in the amount of $1,800 to the victim of his crime and to report

regularly to the adult probation department as directed. Mr. Sheesley did not do so, and in 2013,

he was summoned to appear for a violation of the conditions of community control. Mr.

Sheesley admitted that he had missed appointments with his probation officer and that he had

only paid $350 toward the restitution, but argued that the nonpayment was due to inability to

pay.
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       {¶3}    The trial court inquired as to Mr. Sheesley’s employment and determined that he

was able to make payments toward the restitution. Through counsel, Mr. Sheesley requested that

the trial court extend his period of community control instead of imposing a prison sentence, but

objected to the restitution condition on constitutional grounds. The trial court extended Mr.

Sheesley’s community control sanction for one additional year.            The extended community

control conditions included monthly payments toward the balance of the restitution previously

ordered. Mr. Sheesley filed this appeal.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE IT
       FAILED TO FIND THAT MR. SHEESLEY HAD AN ABILITY TO PAY AND
       WILLFULLY FAILED TO PAY HIS RESTITUTION PRIOR TO EXTENDING
       HIS COMMUNI[T]Y CONTROL IN VIOLATION OF THE DUE PROCESS
       CLAUSE OF THE EQUAL PROTECTION CLAUSE AND THE 14TH
       AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS
       1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶4}    Mr. Sheesley’s assignment of error is that the trial court erred by extending his

community control term for an additional year without explicitly finding that he had ability to

pay restitution and that his failure to do so was willful. We disagree.

       {¶5}    When the terms of a community control sanction are violated, a trial court “may

impose a longer time under the same sanction, may impose a more restrictive sanction, or may

impose a prison term on the offender * * *.” R.C. 2929.19(B)(4). With respect to restitution, a

trial court can revoke community control when there is evidence that the defendant had the

ability to pay, but willfully or intentionally failed to do so. State v. Breckenridge, 10th Dist.

Franklin No. 10AP-652, 2011-Ohio-1493, ¶ 12, citing State v. Conway, 10th Dist. Franklin No.

05AP-358, 2006-Ohio-288. This rule follows the guidance set forth in Bearden v. Georgia, 461
                                                  3


U.S. 660, 668-669 (1983), in which the United States Supreme Court held that a trial court

cannot deprive a probationer of “conditional freedom” when “through no fault of his own, he

cannot pay [a] fine.” Id. at 672.

       {¶6}    In State v. Pickett, 12th Dist. Warren No. CA2014-09-115, 2015-Ohio-972, ¶ 19-

20, the Twelfth District Court of Appeals recently considered whether the rule set forth in

Bearden and its progeny should be applied to situations in which a trial court extends a term of

community control instead of imposing a prison sentence. In Pickett, the defendant received

judicial release, and his prison sentence was modified to three years of community control on

condition that he pay $150,000 in restitution. Id. at ¶ 3. Three years later, the defendant

requested termination of community control because he had met all of the conditions but one:

payment of the entire amount of restitution. Id. at ¶ 4. The trial court denied the defendant’s

motion to terminate community control and, instead, extended it for another two years. Id. at ¶ 7.

On appeal, the defendant argued that the trial court erred by extending his community control

because of his inability to pay the restitution. Id. at ¶ 17-18. The Twelfth District rejected his

reliance on Bearden, noting that the concerns at issue in that case were not present because the

defendant remained at liberty:

       In Bearden, the probationer had borrowed money from his parents to make his
       first two payments. Id. at 662. Yet, with no income or assets, and having been
       unable to find work, the probationer was unsuccessful in making his additional
       payments and, consequently, was imprisoned. Id. at 673. The Supreme Court
       remanded the case to the lower court, finding that a probationer could not be
       imprisoned for failing to pay a fine when the lower court had failed to inquire into
       the reasons for the failure to pay. Id. at 674. * * * The Supreme Court’s decision
       in Bearden, however, is limited and “stands only for the proposition that the court
       cannot imprison a probationer for failure to make required payments unless the
       probationer failed to make bona fide efforts to pay and alternatives to
       imprisonment are inadequate in a particular situation.” (Emphasis added.) State
       v. Bell, 264 Or.App. 230, 233, 331 P.3d 1062 (2014). Therefore, as this case
       does not present a situation in which the state sought to imprison Pickett for his
       failure to pay his restitution order in full, nor is this a case in which the trial court
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       actually did imprison Pickett for such failure, we find the Supreme Court’s
       decision in Bearden distinguishable from the facts here.

(Emphasis in original.) Pickett at ¶ 18-19.

       {¶7}    We agree with the Twelfth District’s reasoning.        In this case, Mr. Sheesley

admitted that he violated two conditions of his community control, including the fact that he did

not make restitution to the victim. The trial court extended the period of community control for

another year, attaching the condition that Mr. Sheesley make monthly payments toward reducing

the balance of restitution owed to the victim. The trial court did not revoke his community

control or impose a prison sentence, so Mr. Sheesley has not suffered the loss of liberty

contemplated by Bearden. Under these circumstances, we agree with the Twelfth District Court

of Appeals that the rule in Bearden does not apply, and Mr. Sheesley’s assignment of error is

overruled.

                                                III.

       {¶8}    Mr. Sheesley’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       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 Summit, 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
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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.




                                                    CARLA MOORE
                                                    FOR THE COURT



HENSAL, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

DAWN M. KING, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RACHEL M. RICHARDSON, Assistant
Prosecuting Attorney, for Appellee.
