[Cite as State v. Conte, 2018-Ohio-4688.]


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

STATE OF OHIO                                         C.A. No.      28868

        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: November 21, 2018



        TEODOSIO, Judge.

        {¶1}     Appellant, Ronald D. Conte, appeals from the judgment of the Summit County

Court of Common Pleas revoking his community control and reimposing his suspended prison

sentence. This Court reverses and remands.

                                                 I.

        {¶2}     Mr. Conte was convicted of multiple felonies resulting from the theft $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
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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.

          {¶3}   Mr. Conte now appeals and raises two assignments of error for this Court’s

review.

          {¶4}   For ease of analysis, we will consolidate Mr. Conte’s assignments of error.

                                                  II.

                                ASSIGNMENT OF ERROR ONE

          SUBSEQUENT TO REVOCATION OF COMMUNITY CONTROL, THE
          TRIAL COURT’S REIMPOSITION OF APPELLANT’S SUSPENDED
          PRISON SENTENCE VIOLATED HIS CONSTITUTIONAL RIGHTS UNDER
          THE FEDERAL AND STATE CONSTITUTIONS.

                                ASSIGNMENT OF ERROR TWO

          WITHOUT SUBSTANTIAL EVIDENCE OF WILLFULLNESS (SIC) BY
          APPELLANT IN UNDERPAYING HIS RESTITUTION, REVOKING HIS
          COMMUNITY CONTROL AND SENDING HIM BACK TO PRISON WAS
          AN ABUSE OF DISCRETION.

          {¶5}   In his assignments of error, Mr. Conte argues 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. We reverse and remand the matter back to the trial court so that it may hold

a new hearing, conduct the appropriate analysis, and make the requisite findings.

          {¶6}   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. “The term ‘abuse of discretion’ connotes more than

an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
                                                    3


unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an

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

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶7}    “When an offender violates the terms of his or her community control sanction, 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 * * *.’” State v. Estright, 9th Dist.

Summit No. 27598, 2016-Ohio-1194, ¶ 7, quoting R.C. 2929.19(B)(4). However, if the 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 [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
       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.

       {¶8}    Id., quoting Bearden v. Georgia, 461 U.S. 660, 672 (1983). “[A] trial court

cannot deprive a probationer of ‘conditional freedom’ when ‘through no fault of his own, he

cannot pay [a] fine.’” Id., quoting State v. Sheesley, 9th Dist. Summit No. 27585, 2015-Ohio-

4565, ¶ 5, quoting Bearden at 672. “The Supreme Court of Ohio has defined ‘willfully’ as a

descriptor which ‘implies an act done intentionally, designedly, knowingly, or purposely,

without justifiable excuse.’” State v. Hand, 10th Dist. Franklin No. 15AP-916, 2016-Ohio-582,

¶ 11, quoting State v. Earlenbaugh, 18 Ohio St.3d 19, 21 (1985), citing Black’s Law Dictionary,

1434 (5th Ed.1979).

       {¶9}    The evidence presented at Mr. Conte’s community control violation hearing

established that he repeatedly failed to meet his full, monthly restitution obligation, but was
                                               4


instead only making partial payments. The court heard testimony from two probation officers

who acknowledged the partial payments and testified that they were unaware of any evidence

that Mr. Conte’s noncompliance with the court’s restitution order was willful.         Intensive

probation supervisor Lisa Davis testified that when she discussed restitution payments with Mr.

Conte, he explained that he “wasn’t able to pay the full amounts” because “the amounts were too

much and [] he didn’t agree to that full amount, [but] his attorney made that amount up for him.”

Mr. Conte filed a motion in April, which was granted by the trial court, and his monthly

restitution obligation was reduced from $2,500.00 per month to $1,500.00 per month. Mr.

Conte’s second probation officer, Lorri Dunn, testified that he continued making partial

payments, including a nominal $25.00 payment in September despite the fact that he had become

unemployed, but she stated that Mr. Conte never actually provided her with any letter of

termination from his employer. Nonetheless, both probation officers recommended that Mr.

Conte be continued on community control.

       {¶10} The State offered Mr. Conte’s own subpoenaed accounting records into evidence

at the hearing to show that he was willfully noncompliant and should have been making higher

restitution payments. The State argued that Mr. Conte was paying more than the minimum

monthly amount required on his personal credit cards and was purchasing various personal items

instead of paying more restitution. The documents showed, for example, that Mr. Conte made a

$136.10 payment in June on his Capital One credit card in which the minimum monthly payment

was purportedly only $33.00. Even after the court significantly reduced his monthly restitution

obligation in April, Mr. Conte made various purchases of over $100.00 and $200.00, including a

purchase from “Facebook CA” for $250.09. He also made a $50.00 purchase from Copper Chef

and a $20.00 purchase from Dream Products. Mr. Conte’s records included some receipts to
                                                   5


show that he paid cash for some medications at Walmart and bought $156.92 worth of clothes at

DXL Men’s Apparel.

        {¶11} Mr. Conte testified at the hearing as to his monthly income and expenses as well

as the recent loss of his job. He testified that he paid restitution to the best of his ability and paid

everything that he could.      After the prosecutor cross-examined Mr. Conte, the trial court

questioned him further regarding his accounting records, specifically as to why certain expenses

inexplicably increased in recent months. Moreover, when he was initially obligated to pay

$2,500.00 per month in restitution, Mr. Conte had listed $1,377.00 as social security income and

$2,500.00 to $3,000.00 as monthly rental income. The court noted that those incomes were no

longer included once Mr. Conte’s monthly restitution obligation was reduced in April. The court

indicated concern that the substantial rental income from a building owned by Mr. Conte and his

wife was now only being attributed to his wife. The court stated:

       It’s called marital assets. And if you want to take advantage of owning the
       building and having income coming in and you don’t want to include – – how do I
       know every month that he’s responsible only for the grocery bills? How
       convenient that every time his income goes up his expenses go up. Then when his
       income goes down his expenses go down. So obviously there’s a sharing of
       marital assets, and by the way it’s not willingness or willfulness not to pay, it’s
       ability to pay. And I’m allowed to consider every dime that comes through that
       house. So my question, because you think you’re smarter than everybody else * *
       * And by the way, you’re an admitted thief * * * You do this for a living. You do
       these spreadsheets for a living. I’m smart enough to look through it and figure it
       out. You and your wife own the building that Akron Income Tax is located in and
       they pay rent every month.

The court surmised: “[A]t some point in time through his crafty accounting he decided what he

was going to account for as his responsibility and what he was going to account for as his wife’s

responsibility.” The court continued:

       Mr. Conte does what Mr. Conte wants to do when Mr. Conte wants to do it. And
       Mr. Conte controls the situation, Mr. Conte controls the numbers * * * I have no
       evidence other than his word, which I discount, that he is no longer employed. He
                                                 6


        could be working for Akron Income Tax and being paid under the table. I don’t
        know. But I know this much: He’s got the ability to pay. He chose to navigate
        the numbers so that it looks like he can’t pay, and I’m done dealing with Mr.
        Conte’s total disregard for this Court’s previous rulings and my previous
        consideration.

The court ultimately found that Mr. Conte had the ability to pay restitution, found him in

violation of the terms and conditions of his community control, revoked his community control,

and reimposed his suspended prison sentence.

        {¶12} Before 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. Estright at ¶ 11, quoting Bearden at 672.

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.”

        {¶13} The dissent respectfully proposes an interpretation of the United States Supreme

Court’s clear classification of probationers who have “willfully refused to pay” to include all

non-paying probationers who have the ability to pay, regardless of willfulness. While we can

appreciate the dissent’s theory of interpretation, we must nonetheless presume that the Supreme

Court meant what it said when it explicitly required trial courts to determine if probationers

“willfully” refused to pay, and we cautiously refrain from interpreting the high court’s use of the

term “willfully” as mere surplusage. See Bearden at 672. Had the high court not intended for

trial courts to determine the willfulness of a probationer’s actions, we surmise that it would have

worded its holding in Bearden differently and refrained from repeated use of the word

“willfully.” The Court could have simply held that trial courts are permitted to revoke probation
                                                 7


and incarcerate any probationers who have the ability to pay restitution, but fail to pay. The

Court did not do so and, instead, determined that the failure to pay had to be willful, highlighting

in its analysis the fact that the reasons for non-payment are of “critical importance” here. Id. at

668. In applying the holding in Bearden as it is written, without the benefit of any additional

clarification from the Supreme Court, we cannot presume to either ignore the Court’s use of the

term “willfully” or excise it completely from the Court’s holding.

       {¶14} The trial court here did inquire as to Mr. Conte’s finances and noted what it

labeled as a “convenient” fluctuation in Mr. Conte’s personal accounting of his income and

expenses from month to month, specifically his failure to include substantial income amounts

once his monthly restitution obligation was reduced by the court. It further stated that Mr. Conte

shared marital assets with his wife, disregarded the court’s rulings, and “chose to navigate the

numbers so that it looks like he can’t pay[,]” strongly implying that Mr. Conte used his skill set

and background to engage in deceptive accounting practices while preparing his personal

accounting records in an effort to avoid making full restitution payments.

       {¶15} Nevertheless, 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[,]” 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. See Estright at ¶ 13. At 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. See id.; Bearden at 672.
                                                 8


       {¶16} Accordingly, Mr. Conte’s first and second assignments of error are sustained.

                                                III.

       {¶17} Mr. Conte’s assignments of error are sustained. The judgment of the Summit

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

consistent with this decision.

                                                                              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 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 Appellee.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
                                                9


SCHAFER, P. J.
CONCURS.

HENSAL, J.
DISSENTING.

       {¶18} I do not agree that the trial court failed to make the findings required to revoke

Mr. Conte’s probation. In Bearden, the United States Supreme Court examined “whether the

Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for

failure to pay * * * restitution.” Bearden v. Georgia, 461 U.S. 660, 661 (1983). It determined

that the answer depended on the reason that the defendant failed to pay, explaining that there is a

difference between a defendant who “willfully refused to pay the fine or restitution when he has

the means to pay,” one who “fail[ed] to make sufficient bona fide efforts to seek employment or

borrow money in order to pay the fine or restitution[,]” and one who “made all reasonable efforts

to pay the fine or restitution, and yet cannot do so through no fault of his own[.]” Id. at 668. It

concluded that a court could revoke the probation of a defendant who fell into the first two

categories, and sentence him to prison. Id. at 672. It concluded that a court could only revoke

probation and imprison a Defendant that fell into the third category, however, “if alternative

measures are not adequate to meet the State’s interests in punishment and deterrence[.]” Id.

       {¶19} Although the United States Supreme Court used the word “willfully” in

describing the first category of defendants, that term must be interpreted in context with the rest

of the Court’s discussion in Bearden, not by applying a definition used by the Ohio Supreme

Court in interpreting Ohio law. The issue in Bearden was “whether a sentencing court can

revoke a defendant’s probation for failure to pay the imposed fine and restitution, absent

evidence and findings that the defendant was somehow responsible for the failure or that

alternative forms of punishment were inadequate.” Id. at 665. The United States Supreme Court
                                                 10


discussed two of its prior decisions and noted that they stood for the proposition that, “if the

State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it

may not thereafter imprison a person solely because he lacked the resources to pay it.” Id. at

667-668. It distinguished such situations, however, from “the situation where a defendant was at

fault in failing to pay the fine.” Id. at 668.

        {¶20} In Bearden, the United States Supreme Court explained that, if a defendant “has

the means to pay” but “willfully refused to pay[,]” “the State is perfectly justified in using

imprisonment as a sanction to enforce collection.” Id. It also explained that, if the defendant

failed “to make sufficient bona fide efforts to seek employment or borrow money in order to

pay” it “may reflect an insufficient concern for paying the debt he owes to society for his crime.”

Id.   “In such a situation, the State is likewise justified in revoking probation and using

imprisonment as an appropriate penalty for the offense.” Id. The Court, however, explained that

it would be “fundamentally unfair to revoke probation automatically” if the defendant “has made

all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his

own[.]” Id. at 668. Under such situations, the defendant’s “lack of fault provides a ‘substantial

reason which justifies or mitigates the violation and makes revocation inappropriate.’”

(Alterations sic.) Id. at 669, quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).

        {¶21} Under Bearden, the only defendants who may avoid the revocation of probation

for failure to pay restitution are those who “could not pay despite sufficient bona fide efforts to

acquire the resources to do so[.]” Id. at 672. Even they may be imprisoned “if alternative

measures are not adequate to meet the State’s interests in punishment and deterrence * * *.” Id.

In this case, however, the trial court explicitly found that Mr. Conte had the ability to pay his

restitution amount. Thus, he is not someone who “could not pay despite sufficient bona fide
                                                  11


efforts[.]” Id. The trial court, therefore, did not violate Mr. Conte’s constitutional rights or

abuse its discretion when it revoked his community control. Accordingly, because I would

affirm the judgment of the trial court, I respectfully dissent.


APPEARANCES:

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

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