 [Cite as State v. Scates, 2014-Ohio-1284.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 JOSEPH W. SCATES

         Defendant-Appellant

 Appellate Case No.        25825

 Trial Court Case No. 2012-CR-2089


 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                 Rendered on the 28th day of March, 2014.

                                              ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ROBERT L. SCOTT, Atty. Reg. No. 0086785, 8801 North Main Street, Suite 200, Dayton, Ohio
45415
      Attorney for Defendant-Appellant



                                              .............
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WELBAUM, J.

         {¶ 1}    We are asked to decide if the trial court ordered excessive restitution in this case

 that did not result from the criminal acts to which the Appellant was convicted. The parties agree

 that the trial court erred. We agree with the parties and reverse the order of restitution and remand

 to the trial court to hold a hearing to determine restitution.

         {¶ 2}    The Montgomery County Grand Jury indicted Appellant, Joseph Scates on four

 counts of nonsupport of dependents in violation of R.C. 2919.21(B), fifth degree felonies. Scates

 entered a plea of guilty to counts one and four of the indictment. Prior to the pleas, the State

 indicated the amount of restitution for count one was $18,436.98 and on count two the amount

 was $56,539.96. The court relied upon these representations. The trial court sentenced Scates to

 concurrent nine month prison sentences to be served concurrently with a six year prison term

 Scates was serving from a Clark County conviction.

                                     ASSIGNMENT OF ERROR

         {¶ 3}    Scates’ assignment of error states:

                 The trial court erred by imposing an excessive restitution amount that did

         not result from the criminal acts to which the defendant-appellant plead guilty.

         {¶ 4}    Scates notes that count one of the indictment pertains to the period of June 1,

 2007 through May 31, 2009. The trial court ordered Scates to pay $18,436.98 restitution for this

 24-month period. This is approximately $802.00 a month. The trial court also ordered Scates to

 pay $56,539.96 restitution for the nine-month period of October 1, 2011 through June 30, 2012,

 alleged in count four of the indictment. This is approximately $6,282.21 a month.

         {¶ 5}    It is significant whether a trial court imposed restitution as a condition of
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community control or as part of the sentence. If the restitution is imposed as a condition of

community control, the requirement that the offender make payments on his total arrearage is

permitted even if such amount goes beyond a permissible amount of restitution.               State v.

Hubbell, 2d Dist., Darke No. 1617, 2004-Ohio-398, ¶ 13, quoting State v. Jones, 49 Ohio St.3d

51, 550 N.E.2d 469 (1990); State v. Craft, 2d Dist. Greene No. 2001-CA-128, 2002-Ohio-5127.

        {¶ 6}    Here, the trial court’s restitution order was part of a prison sentence. Therefore,

restitution is limited to the amount of nonsupport arrearage accrued within the time period

included in the indictment. State v. Hubbell, Id., at ¶ 11. This limitation does not relieve the

offender of his duty to pay the child support arrearage in the court that has issued the underlying

child support orders. Id., at ¶ 12.

        {¶ 7}    We agree with the parties that on its face, the trial court order imposed restitution

beyond the time periods specified in the two counts of the indictment. Accordingly, we also agree

with the parties that Scates’ assignment of error has merit. We reverse the trial court order of

restitution and remand to the trial court to hold a hearing to determine restitution.




                                           .............
FAIN and DONOVAN, JJ., concur.




Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Robert L. Scott
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Hon. Michael Tucker
