[Cite as State v. Conte, 2019-Ohio-4333.]


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

STATE OF OHIO                                         C.A. No.       29335

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RONALD D. CONTE                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2014-07-1903

                                 DECISION AND JOURNAL ENTRY

Dated: October 23, 2019



        HENSAL, Judge.

        {¶1}     Ronald Conte appeals from the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     This appeal follows this Court’s prior remand of this case to the trial court. We

explained the factual background in our prior decision as follows:

        Mr. Conte was convicted of multiple felonies resulting from the theft [of]
        $558,100.02 from various clients of his accounting business. He was sentenced to
        59 months in prison, but was granted judicial release and placed on community
        control after serving 21 months of his sentence. One of the conditions of his
        community control was the payment of restitution to the victims in an amount of
        $2,500.00 per month. Upon Mr. Conte’s motion, the trial court judge reduced the
        amount to $1,500.00 per month. Mr. Conte made partial restitution payments
        each month, but he did not fully comply with his monthly restitution obligations
        and was consequently served with two separate community control violations.
        Following a community control violation hearing, the trial court found Mr. Conte
        guilty of violating the terms and conditions of his community control, revoked his
        community control, and reimposed his suspended prison sentence.

State v. Conte, 9th Dist. Summit No. 28868, 2018-Ohio-4688, ¶ 2.
                                                   2


        {¶3}    Mr. Conte appealed the trial court’s decision, raising two assignments of error.

Id. at ¶ 3. “In his assignments of error, Mr. Conte argue[d] that the trial court erred in revoking

his community control and in reimposing his suspended prison sentence because he was making

partial restitution payments and there was no evidence that he willfully failed to pay the full

amount each month.”        Id. at ¶ 5.    This Court reviewed the relevant law with respect to

community-control violations, including the United States Supreme Court’s decision in Bearden

v. Georgia, 461 U.S. 660 (1983). Under Bearden, when a community-control violation stems

solely from the failure to pay 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 alternate
        measures of punishment other than imprisonment. Only if alternate 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 672-673. Relying on Bearden, this Court determined that:

        [b]efore reimposing Mr. Conte’s suspended prison sentence, the trial court was
        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. * * * However, the court made no such findings explicitly on the
        record and, instead, apparently rejected the Bearden standard by stating: “[A]nd
        by the way it’s not willingness or willfulness not to pay, it’s ability to pay.”

Conte at ¶ 12. This Court then determined that, “because the record does not reflect that the trial

court made the requisite finding of willfulness pursuant to Bearden, and in light of the trial

court’s incorrect assertion that ‘it’s not willingness or willfulness not to pay, it’s ability to pay[,]’
                                                 3


we are constrained to remand this matter back to the trial court so that it may hold a new

evidentiary hearing in accordance with Bearden.” Id. at ¶ 15. This Court instructed that, “[a]t

that hearing, the court may order Mr. Conte to serve the remainder of his prison term only if it

determines that he failed to pay restitution and either (1) he did so willfully or intentionally by

not making a bona fide effort, or (2) despite his bona fide efforts, an alternative means of

punishment would not be adequate to meet the State’s interests in punishment and deterrence.”

Id.

       {¶4}     The trial court held a new evidentiary hearing on remand wherein the State

submitted the same exhibits introduced at the prior hearing, as well as a transcript of the prior

hearing. Mr. Conte presented several new exhibits, including his W-2 for 2017 and an affidavit

from his wife. The trial court then took the matter under advisement.

       {¶5}    The trial court issued a written decision wherein it addressed this Court’s remand

instructions, analyzed Bearden, and determined that “Mr. Conte willfully refused to make

sufficient bona fide efforts to meet his restitution obligation, by using his funds for nonessential

expenditures and/or by failing to make sufficient bona fide efforts to find employment or use

other streams of income available to him.” It then revoked Mr. Conte’s community control and

re-imposed his prison sentence. He now appeals, raising two assignments of error for this

Court’s review, which we have combined to facilitate our analysis.

                                                II.

                                  ASSIGNMENT OF ERROR I

       IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO AGAIN
       REVOKE APPELLANT’S COMMUNITY CONTROL SOLELY FOR UNDER-
       PAYING THE RESTITUTION AMOUNT WHEN HIS FINANCIAL
       CIRCUMSTANCES CLEARLY DEMONSTRATED THE UNDERPAYMENT
       WAS NOT WILLFUL.
                                                  4


                                     ASSIGNMENT OF ERROR II

          APPELLANT’S RIGHTS UNDER THE CONSTITUTIONS OF THE UNITED
          STATES AND STATE OF OHIO WERE VIOLATED WHEN WITHOUT
          JUSTIFICATION HIS SUSPENDED PRISON SENTENCE WAS REIMPOSED
          BY THE TRIAL COURT AFTER REVOCATION OF HIS COMMUNITY
          CONTROL.

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

revoking his community control solely based upon his failure to make full payments toward his

restitution obligation when his financial circumstances indicated that his failure was not willful.

Relatedly, in his second assignment of error, Mr. Conte argues that the trial court violated his

constitutional rights by doing so.

          {¶7}   We review a trial court’s decision to reimpose an offender’s suspended sentence

following a community-control violation for an abuse of discretion. State v. Harrah, 9th Dist.

Summit No. 25449, 2011-Ohio-4065, ¶ 14. An abuse of discretion “implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). When applying an

abuse of discretion standard, a reviewing court is precluded from simply substituting its own

judgment for that of the trial court. See Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

          {¶8}   As previously noted, if a community-control violation stems from the offender’s

failure to pay 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 [community control]
          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 alternate
          measures of punishment other than imprisonment. Only if alternate measures are
                                                  5


        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.

Bearden, 461 U.S. 660, at 672.

        {¶9}    Here, the trial court determined that “Mr. Conte willfully refused to make

sufficient bona fide efforts to meet his restitution obligation, by using his funds for nonessential

expenditures and/or by failing to make sufficient bona fide efforts to find employment or use

other streams of income available to him.” It made clear that it was “not stating that it believe[d]

Mr. Conte necessarily had the ability to pay the entire restitution amount each month for the

period in question, but that he failed to make a sincere and diligent attempt to meet the terms of

his restitution obligation.”

        {¶10} In reaching this conclusion, the trial court pointed to the fact that Mr. Conte

presented no evidence to support his assertion that he was actively looking for employment, that

he consistently paid more than the minimum payment required on his credit card bill, and that he

made several non-essential purchases, including purchases from Netflix, Facebook, and various

restaurants. The trial court further noted that Mr. Conte and his wife sold a property in South

Carolina purportedly to satisfy tax liens, yet Mr. Conte did not disclose when the property was

sold, the sale price or net sale proceeds, or the nature and amount of the tax liens against it. It

also indicated that Mr. Conte previously listed a monthly social-security income of $1,377 and

rental income of $2,500-$3,000, but that those amounts were now attributed solely to his wife.

Additionally, the trial court questioned Mr. Conte’s own accounting of his monthly income and

expenses, suggesting that some of his expenses appeared attributable to his wife. It concluded

that “Mr. Conte has, depending on whether he believes it will assist in promoting his current

position, claimed various streams of income should or should not be attributed to him and

inflated his monthly expenses in various ways.”
                                                  6


       {¶11} On appeal, Mr. Conte argues that the trial court misconstrued financial

information and improperly included his wife’s assets as part of the income available to him to

make restitution payments. He also argues that the trial court did not consider alternative

methods of punishment before reimposing his prison sentence, and that the trial court ignored the

testimony of the probation officers who recommended continued community control and

testified that they had no evidence to indicate that Mr. Conte’s failure to meet his restitution

obligation was willful. As explained below, these arguments lack merit.

       {¶12} Regarding his argument that the trial court misconstrued financial information and

improperly included his wife’s assets as part of the income available to him to make restitution

payments, those arguments primarily relate to his ability to pay his restitution obligation. Yet the

trial court specifically indicated that it was “not stating that it believes Mr. Conte necessarily had

the ability to pay the entire restitution amount each month for the period in question[.]” Instead,

it concluded that “he failed to make a sincere and diligent attempt to meet the terms of his

restitution obligation.”   Mr. Conte’s assignment of error, however, contains no meaningful

argument as to how the trial court erred in that regard. Nor does his assignment of error address

many of the trial court’s other findings, such as the lack of evidence regarding the sale of the

South Carolina home, or the fact that Mr. Conte seemed to attribute expenses to himself, or to his

wife, depending on whether doing so was advantageous for him. Additionally, while he notes

that the probation officers did not consider his unemployment to be troubling, he offers no

explanation as to why the trial court erred by considering it. Instead, he asserts that the trial

court had no evidentiary basis to determine that he was unemployed between August and

October of 2017. Yet he testified at the October 2017 hearing that he “became unemployed in
                                               7


August.” Based on the foregoing, we find that Mr. Conte’s challenge to the trial court’s decision

in this regard lacks merit.

       {¶13} We now turn to Mr. Conte’s argument that the trial court failed to consider

alternative methods of punishment before reimposing his prison sentence. Given the trial court’s

holding, Mr. Conte’s argument misapplies Bearden. Importantly, the trial court determined that

“Mr. Conte willfully refused to make sufficient bona fide efforts to meet his restitution

obligation * * *.” Under Bearden, a trial court “must consider alternate measures of punishment

other than imprisonment” when “the probationer could not pay despite sufficient bona fide

efforts to acquire the resources to do so[.]” (Emphasis added.) Bearden, 461 U.S. 660, at 672.

Nothing in Bearden requires such an analysis when, like here, a court determines that the

probationer has failed to make sufficient bona fide efforts to meet his or her restitution

obligation. Mr. Conte’s argument, therefore, lacks merit.

       {¶14} Regarding his argument that the trial court ignored the testimony of the probation

officers (who recommended continued community control and testified that they had no evidence

to indicate that Mr. Conte’s failure to meet his restitution obligation was willful), Mr. Conte

acknowledges in his merit brief that a trial court is not bound by a probation officer’s

recommendation. Having reviewed the record, including the trial court’s findings outlined

above, we find no error in this regard.

       {¶15} In light of the foregoing, Mr. Conte’s first assignment of error is overruled.

Because his second assignment of error raises a constitutional challenge premised upon the trial

court’s alleged error raised in his first assignment of error, we likewise overrule Mr. Conte’s

second assignment of error.
                                                 8


                                                III.

       {¶16} Mr. Conte’s assignments of error are 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

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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



CALLAHAN, J.
SCHAFER, J.
CONCUR.
                                          9


APPEARANCES:

BRIAN J. WILLIAMS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
