[Cite as State v. Cornwell, 2019-Ohio-4643.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                 :     JUDGES:
                                               :     Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                  :     Hon. Craig R. Baldwin, J.
                                               :     Hon. Earle E. Wise, J.
-vs-                                           :
                                               :
GENE CORNWELL                                  :     Case No. 19CA001
                                               :
        Defendant - Appellant                  :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Holmes County
                                                     Court of Common Pleas, Case No.
                                                     18CR053




JUDGMENT:                                            Affirmed in part; Reversed in part;
                                                     Remanded



DATE OF JUDGMENT:                                    November 8, 2019



APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

JEFFREY G. KELLOG                                    ROBERT K. HENDRIX
5 South Washington Street                            Assistant Prosecuting Attorney
Millersburg, Ohio 44654                              Holmes County, Ohio
                                                     164 E. Jackson Street
Holmes County, Case No. 19CA001                                                         2



Baldwin, J.

        {¶1}   Gene L Cornwall appeals the decision of the Holmes County Court of

Common Pleas denying his request to withdraw his plea of guilty to a violation of R.C.

2919.21(B) as well as the sentence imposed by the trial court. Appellee is the State of

Ohio.

                        STATEMENT OF FACTS AND THE CASE

        {¶2}   On June 4, 2018 the Holmes County Grand Jury indicted Appellant for a

violation of R.C. 2919.21(B) stating that on or about April 1, 2017 to April 30, 2018

Appellant:



        did abandon, or failed to provide support as established by a court order to

        J.C. 04/01/2000, whom, by court order or decree, Gene L. Cornwell was

        legally obligated to support.

        FURTHERMORE (sic), the offender failed to provide support for a total

        accumulated period of twenty-six weeks out of one hundred four

        consecutive weeks, whether or not the 26 weeks were consecutive.



        {¶3}   On August 16, 2018 Appellant appeared before the court with counsel and

entered a guilty plea. After fulfilling the requirements of Crim.R. 11, the trial court accepted

the plea. Sentencing was scheduled for October 4, 2018. On September 6, 2018

Appellant filed a Motion for Order Permitting Defendant to Withdraw Guilty Plea and

Dismissing the Indictment. Within the motion, Appellant cited State v. Pittman, 150 Ohio

St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531 contending that he could not be prosecuted
Holmes County, Case No. 19CA001                                                        3


for nonpayment of support for a child who had been emancipated prior to the date the

indictment was filed. He also complained that the text of the indictment was prejudicially

erroneous as it substituted the word "was" for the word "is". Specifically, the indictment

stated that he "was" legally obligated to pay support rather than alleging that he "is" legally

obligated to pay support. Appellee opposed the motion and requested an evidentiary

hearing.

       {¶4}   The matter came on for hearing on January 3, 2019 with Appellant, his

counsel, and an assistant prosecuting attorney present. Neither party presented

testimony or any evidentiary materials. Instead, the parties engaged in argument

regarding the allegations of the motion and the terms of the indictment as well as the

application of the Supreme Court of Ohio's decision in Pittman, supra. Appellant's counsel

asserted that the child who was the subject of the support order was emancipated but no

documentation nor any testimony was presented to the trial court to confirm that

allegation.

       {¶5}   After the argument, the trial court announced that it was denying the motion

to withdraw the plea and proceeded to sentencing. Appellant was ordered to pay

restitution to the Holmes County Child Support Enforcement Agency in the amount of

$32,413.47, as well as court costs. Appellant was sentenced to one year in the Holmes

County jail with work release at the discretion of the probation department and the sheriff

and five years of community control and basic supervision, with one year being intensive

supervision, by the Holmes County Adult Probation Department.

       {¶6}   On January 31, 2019 Appellant filed a timely appeal and submitted

two assignments of error:
Holmes County, Case No. 19CA001                                                       4


       {¶7}   “I.   THE      TRIAL       COURT        ERRED       IN     DENYING          THE

DEFENDANT/APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA FILED

PRIOR TO SENTENCING.”

       {¶8}   “II. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO

FIVE YEARS OF COMMUNITY CONTROL AND 12 MONTHS OF LOCAL

INCARCERATION BECAUSE SAID SENTENCE IS CONTRARY TO LAW.”

                             STANDARD OF REVIEW

       {¶9}   We review a trial court's denial of a motion to withdraw guilty plea under an

abuse of discretion standard. State v. Carabello, 17 Ohio St.3d 66, 477 N.E.2d 627

(1985). “A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of

the trial court, and the good faith, credibility, and weight of the movant's assertions in

support of the motion are matters to be resolved by that court.” State v. Smith, 49 Ohio

St.2d 261, 361 N.E.2d 1324 (1977) as quoted in State v. Hammock, 5th Dist. Richland

No. 18CA104, 2019-Ohio-127, ¶ 22. Thus, we review a trial court's denial of a motion to

withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that denial

only if it is unreasonable, arbitrary, or unconscionable.

                                     ANALYSIS

       {¶10} Appellant complains, in his first assignment of error, that the trial court erred

in denying his motion to withdraw his guilty plea filed prior to sentencing.

       {¶11} Crim. R. 32.1 states, “A motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.” A defendant does not have an absolute right to withdraw a guilty
Holmes County, Case No. 19CA001                                                      5


plea prior to sentencing; however, a trial court must conduct a hearing to determine

whether there is a reasonable and legitimate basis for the withdrawal of the plea. State v.

Hamilton, 5th Dist. Muskingum No. CT2008–0011, 2008–Ohio–6328, ¶ 32, quoting State

v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), at paragraph one of the syllabus.

       {¶12} The court in State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1995)

compiled a non-exhaustive list of factors to be considered in the context of a request to

withdraw a guilty plea. These factors include: (1) whether the prosecution would be

prejudiced if the plea was vacated; (2) whether the accused was represented by highly

competent counsel; (3) whether the accused was given a full Crim.R. 11 hearing; (4)

whether a full hearing was held on the motion; (5) whether the trial court gave full and fair

consideration to the motion; (6) whether the motion was made within a reasonable time;

(7) whether the motion set forth specific reasons for the withdrawal; (8) whether the

accused understood the nature of the charges and possible penalties; and (9) whether

the accused was possibly not guilty or had a complete defense to the crime.

       {¶13} In weighing the ninth factor, “the trial judge must determine whether the

claim of innocence is anything more than the defendant's change of heart about the plea

agreement.” State v. Davison, 5th Dist. Stark No.2008–CA–00082, 2008–Ohio–7037, ¶

45, quoting State v. Kramer, 7th Dist. Mahoning No. 01–CA–107, 2002–Ohio–4176, ¶ 58.

       {¶14} Appellant filed a motion that was limited to two issues. First, that the

indictment was defective because it contained the phrase "was obligated" rather than "is

obligated" and that that Supreme Court of Ohio provided a complete defense to the

charges. Because the Appellant limited his presentation to the trial court to those issues,

our analysis is likewise limited.
Holmes County, Case No. 19CA001                                                     6


       {¶15} Appellant argues that the holding of Pittman, supra supports his contention

that the Appellee could not prosecute him for non-support because he was under no

obligation to support J.C. when the indictment was issued. Appellant contends that J.C.

was emancipated prior to the filing of the indictment, ending his support obligation and

his criminal liability for failure to pay support. Appellant also contended that there was a

prejudicial error in the language of the indictment. The statute states " No person shall

abandon, or fail to provide support as established by a court order to, another person

whom, by court order or decree, the person is legally obligated to support, but in the the

indictment the word "is" was changed to "was" and Appellant contends that was in

violation of the precedent established by the Supreme Court of Ohio in Pittman.

       {¶16} Appellee responds by arguing that Pittman is factually distinguishable

because the defendant in Pittman was charged with failure to pay an arrearage order that

was issued after his support order was terminated and he was not charged with a failure

to pay support during the time he was obligated to make payments. In fact, the charges

for failure to support were dismissed as being barred by the statute of limitations or for

speedy trial violations.

       {¶17} Appellee also contended that changing "is" to "was" was only done to make

grammatical sense and for no other reason. The violation occurred prior to the filing of

the indictment and hence the past tense was appropriate.
Holmes County, Case No. 19CA001                                                                     7


        {¶18} The language of R.C. 2919.21(B) and the holding of Pittman, did create

some confusion in the application of the statute.1 In State v. Hubbard, 11th Dist. Portage

No. 2017-P-0042, 2018-Ohio-3627, 119 N.E.3d 798 the Eleventh District Court of

Appeals concluded that Pittman prohibited the imposition of criminal penalty for

nonpayment of child support after the child had been emancipated regardless of when

the failure to pay child support had occurred and regardless of whether the charge arose

from a violation of a child support order or an arrearage order. The Second District Court

of Appeals and most recently, the Tenth District Court of Appeals limited the holding of

Pittman to the circumstances where the state was attempting to apply criminal penalties

to failure to pay an arrearage order. In both Districts, the courts decided that Pittman did

not apply when the failure to pay the child support order occurred while there was still a

valid child support order pending. (State v. Ferguson, 2d Dist. Montgomery No. 27886,

2018-Ohio-4446, 122 N.E.3d 652; State v. Miles, 2d Dist. Montgomery No. 27885, 2018-

Ohio-4444, 122 N.E.3d 656; State v. Winslow, 2nd Dist. Montgomery No. 28178, 2019-

Ohio-2357, motion to certify allowed, 157 Ohio St.3d 1417, 2019-Ohio-3797 (2019) State

v. Brown, 2nd Dist. Greene No. 2018-CA-29, 2019-Ohio-1666, motion to certify allowed,



1On February 11, 2109, the Legislature amended R.C. 2919.21(B) presumably to address the holding in
Pittman and that section now reads:

(B) (1) No person shall abandon, or fail to provide support as established by a court order to, another
person whom, by court order or decree, the person:
(a) Is legally obligated to support; or
(b) Was legally obligated to support, and an amount for support:
(i) Was due and owing prior to the date the person's duty to pay current support terminated; and
(ii) Remains unpaid.
(2) The period of limitation under section 2901.13 of the Revised Code applicable to division (B)(1)(b) of
this section shall begin to run on the date the person's duty to pay current support terminates.

We find this amendment addresses the holding in Pittman, but has no impact on our analysis of the facts
of the case before us as we have concluded Pittman is inapplicable.
Holmes County, Case No. 19CA001                                                     8


156 Ohio St.3d 1491, 2019-Ohio-3263, 129 N.E.3d 475 (2019); State v. Parr, 10th Dist.

Franklin No. 17AP-782, 2019-Ohio-4011).

       {¶19} We adopt the rational of the Second and Tenth District Court of Appeals

which found that "that Pittman does not preclude prosecution where, as here, there was

a current support order during the time periods listed in the counts of the indictment, even

though the indictment was filed after the dependent was emancipated." Parr, supra at ¶

32 (Citations omitted.) The facts in the case before us and the case in Parr are analogous

and we find the Tenth District's analysis persuasive:

              The threat of criminal prosecution under R.C. 2919.21 serves to

       deter child support obligors from ceasing to support their children or comply

       with their support obligations. To read Pittman as holding that the state may

       not indict a delinquent child support obligor for non-support of dependents

       after the child is emancipated would only encourage such obligors,

       especially those with children nearing emancipation, to disregard their child

       support obligations with impunity. Such a construction of Pittman is not

       required.

              Pittman concerned an arrearage only order, and the charges in

       Pittman alleged that Pittman violated the arrearage only order in the years

       following his children's emancipation. Thus, the court's statement that

       “Pittman's criminal liability for nonpayment of support ended on August 31,

       2006, when his children were emancipated,” meant that the state could not

       charge Pittman with failing to support his children from 2007 to 2009 as the

       state had. Id. at ¶ 19. The statement pertains to the timeframe of the
Holmes County, Case No. 19CA001                                                          9


       charges contained within the indictment, rather than the date of the

       indictment itself.

Id. at ¶¶ 30-31.

       {¶20} We hold that the trial court did not abuse its discretion by failing to permit

withdrawal of the guilty plea as the record supports a finding that the appellant was given

a full Crim.R. 11 hearing, a full hearing on his motion, and that the trial court a full and fair

consideration to his motion. The change of plea hearing transcript also demonstrates

appellant understood the nature of the charges and possible penalties. Further,

considering our interpretation of Pittman we find there is sufficient evidence to

demonstrate the trial court could find that the accused was not “possibly not guilty” or did

not have “a complete defense to the crime.”

       {¶21} Appellant’s First Assignment of Error is overruled.

       {¶22} We recognize that our decision is in conflict with the judgment of the

Eleventh District Court of Appeals in Hubbard, that this conflict is currently before the

Supreme Court of Ohio in Winslow and Brown and that the Tenth District Court of Appeals

certified the same conflict in Parr. Therefore, we sua sponte certify a conflict to the

Supreme Court of Ohio, pursuant to Article IV, Section 3(B)(4), Ohio Constitution. As this

case concerns the same conflict at issue between Brown and Hubbard, we certify the

same question for review:



       May a child support obligor be prosecuted for failure to pay child support

       under R.C. 2919.21(B) where a child support order was in place for the time

       period specified in the charging document, but the charging document was
Holmes County, Case No. 19CA001                                                     10


       filed after the child for whom support was owed had been emancipated and

       the child support obligation had terminated?



       {¶23} In his Second Assignment of Error, Appellant contends that the trial court's

sentence was contrary to law. Appellee conceded that the Appellant was correct and that

this matter should be remanded for resentencing.

       {¶24} The trial court did determine that a prison sentence was not consistent with

the overriding purposes of felony sentencing and that Appellant was amenable to

available community sanctions. When the trial court imposes “a sentence for a felony

upon an offender who is not required to serve a mandatory prison term” the court “may

impose any community residential sanction or combination of community residential

sanctions under this section.” R.C. 2929.16(A). The statute limits incarceration to “a term

of up to six months at a community-based correctional facility that serves the county”. Id

at (A)(1). The trial court’s sentence of one year is not permitted and we therefor find that

the Appellant’s second assignment of error has merit.
Holmes County, Case No. 19CA001                                                  11


      {¶25} The decision of the Holmes County Court of Common Pleas is affirmed in

part and reversed in part and remanded for resentencing consistent with this opinion. We

sua sponte certify a conflict to the Supreme Court of Ohio.

By: Baldwin, J.

Hoffman, P.J. and

Wise, Earle, J. concur.
