State v. Hickman , 2021 Ohio 1981 ( 2021 )

[Cite as State v. Hickman, 2021-Ohio-1981.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 20CA0049-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRADLEY HICKMAN COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 19CR0571
DECISION AND JOURNAL ENTRY
Dated: June 14, 2021
CARR, Presiding Judge.
{¶1} Defendant-Appellant Bradley Hickman appeals from the judgment of the Medina
Court of Common Pleas. This Court reverses and remands the matter for proceedings consistent
with this decision.
I.
{¶2} In May 2019, Hickman was indicted on three counts of nonsupport of dependents
in violation of R.C. 2919.21(B), felonies of the fifth degree. The counts alleged that Hickman
“abandon[ed], or fail[ed] to provide support as established by a court order to D.P. (DOB
12/4/1994), whom, by court order or decree, [] Hickman was legally obligated to support * * *.”
The first count encompassed the period from May 1, 2013 through April 30, 2015. The second
count involved May 1, 2015 through April 30, 2017. Whereas the last count alleged the nonsupport
occurred from May 1, 2017 through April 30, 2019. Each count included an assertion that
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Hickman failed to provide support for a total period of 26 weeks out of 104 consecutive weeks,
whether or not the 26 weeks were consecutive.
{¶3} In March 2020, Hickman filed a motion to dismiss. Hickman essentially argued
the current version of R.C. 2919.21(B) was unconstitutional as applied to him because it violated
the Ex Post Facto Clause of the United States and the Ohio Constitutions. The State opposed the
motion asserting that the issue could not be determined via a motion to dismiss. The trial court
agreed with the State and denied the motion. Hickman then pleaded no contest to the indictment
and was sentenced accordingly. His sentence was stayed pending appeal.
{¶4} Hickman has appealed, raising four assignments of error for our review. Hickman’s
assignments of error will be addressed out of sequence to facilitate our analysis.
II.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN DENYING MR. HICKMAN’S MOTION TO
DISMISS.
{¶5} Hickman argues in his fourth assignment of error that the trial court erred in
denying his motion to dismiss. Hickman essentially argues that the trial court erred in failing to
consider the merits of his motion to dismiss.
{¶6} Crim. R. 12(C)(2) provides that “[p]rior to trial, any party may raise by motion any
defense, objection, evidentiary issue, or request that is capable of determination without the trial
of the general issue[]” including “[d]efenses and objections based on defects in the indictment[.]”
“When a defendant moves to dismiss an indictment, the threshold question is whether the trial
court can determine the motion without reference to the general issue to be tried.” State v. Hitsman,
9th Dist. Medina No. 18CA0015-M, 2018-Ohio-5315, ¶ 15, citing State v. Palmer, 131 Ohio St.3d
278, 2012-Ohio-580, ¶ 22, citing State v. Brady, 199 Ohio St.3d 375, 2008-Ohio-4493, ¶ 18. This
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is because “[a] motion to dismiss an indictment tests the legal sufficiency of the indictment,
regardless of the quality or quantity of the evidence that may be introduced by either the state or
the defendant.” (Internal quotations and citations omitted.) Hitsman at ¶ 15. “In conducting this
pretrial review, courts may look to evidence beyond the face of the indictment.” Palmer at ¶ 22,
quoting Brady at ¶ 18. “The Ohio Rules of Criminal Procedure, however, do not allow for
‘summary judgment’ on an indictment prior to trial.” State v. Varner, 81 Ohio App.3d 85, 86 (9th
Dist.1991).
{¶7} In order to evaluate Hickman’s argument, it is necessary to understand the recent
changes to R.C. 2929.21(B). Former R.C. 2919.21(B) states that “[n]o 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.” (Emphasis added.) In State v. Pittman, 150
Ohio St.3d 113, 2016-Ohio-8314, the Supreme Court of Ohio held “that a person is not subject to
prosecution under [former] R.C. 2919.21(B) for the nonpayment of a court’s order to pay a child-
support arrearage when the person has no current obligation of support because the child who is
the subject of the order is emancipated.” Id. at ¶ 1. The Supreme Court revisited this issue in State
v. Brown, 161 Ohio St.3d 276, 2020-Ohio-4623. Therein, it concluded that “a defendant may be
charged with nonpayment of support under [former] R.C. 2919.21(B) when the conduct underlying
the charge occurred while a support order was in effect, even if the child of the defendant is
emancipated at the time the charge is brought, so long as the statute of limitations has not run and
the other elements of the statute are met.” Id. at ¶ 15. Thus, the former statute did not allow for
the prosecution of a defendant when the underlying conduct occurred at a time when only an
arrearage order was in effect. See id. at ¶ 9-15.
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{¶8} Effective February 11, 2019, R.C. 2919.21(B) was amended. The statute now
provides:
(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.
Thus, the statute now includes not only those who are legally obligated to provide support, but
also certain individuals who were legally obligated to provide support. See id.
{¶9} Hickman argues that his support order was terminated effective June 9, 2013, and,
thus, as of that date Hickman only owed arrearages. Hickman further points out that the counts in
the indictment involve dates prior to February 11, 2019. Hickman maintains that R.C. 2919.21(B)
is meant to be applied prospectively only and that he could not be prosecuted under former R.C.
2919.21(B) for violating an arrearages only order. However, if R.C. 2919.21(B) applies
retrospectively, Hickman argues that it is unconstitutional as applied to him because it violates the
Ex Post Facto Clause of the United States Constitution and the Ohio Constitution.
{¶10} Hickman asserts that these issues can be resolved without reference to the general
issue to be tried, and points to Palmer in support. In 1995, Palmer was convicted of sexual battery.
Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, at ¶ 15. After the Adam Walsh Act became effective
in 2008, Palmer was automatically classified as a Tier III sex offender. Id. at ¶ 7. Palmer was
then charged with violating the Adam Walsh Act’s registration requirements. Id. at ¶ 9. Palmer
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moved to dismiss the indictment. Id. at ¶ 10. The trial court ruled that the requirements of the act
did not apply to Palmer and granted the motion. Id. On appeal, the Tenth District reversed
concluding that the trial court exceeded its authority by looking outside the face of the indictment
and addressing the issue to be determined at trial. Id. at ¶ 11. The Supreme Court reversed. Id. at
¶ 28. In so doing, the Supreme Court concluded that, “[w]ithout a doubt, an indictment is defective
if it alleges violations of R.C. Chapter 2950 by a person who is not subject to that chapter. There
is no set of circumstances under which such a person can violate the law’s requirements. This is
especially so where, as in Palmer’s case, an indictment depends on the unconstitutional application
of law. Therefore, dismissal is appropriate.” Id. at ¶ 23. It went on to state that “such a
determination does not embrace the general issue for trial. The general issue for trial in this context
is whether the accused violated the law as set forth in the indictment. Where the law simply does
not apply, the trial court is well within its authority to dismiss the indictment before trial. In
reaching that determination, the trial court may look beyond the four corners of the indictment.”
Id. ¶ 24.
{¶11} Here, much like Palmer, Hickman asserts that R.C. 2919.21(B) is unconstitutional
as applied to him. While an examination of whether a statute is unconstitutional as applied
necessarily involves an examination of certain facts, this does not require the conclusion that the
issue cannot be resolved in a motion to dismiss. See Palmer at ¶ 24; see also Pittman, 150 Ohio
St.3d 113, 2016-Ohio-8314 (resolving whether Pittman was subject to prosecution under former
R.C. 2919.21(B) via a motion to dismiss). Notably, Crim.R. 12(F), provides that “[t]he court may
adjudicate a motion based upon briefs, affidavits, the proffer of testimony and exhibits, a hearing,
or other appropriate means.” Further, resolution of whether R.C. 2919.21(B) is unconstitutional
as applied to Hickman would not involve resolution of the general issue to be determined at trial.
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At trial, the State would be required to demonstrate the existence of a support order and that
Hickman failed pay it. See R.C. 2919.21(B). To resolve whether the statute is unconstitutional as
applied to Hickman, it would only be necessary to determine when Hickman’s support order
terminated.
{¶12} Given the foregoing, we conclude that the trial court erred in denying Hickman’s
motion on the basis that the issues could not be determined at the motion to dismiss stage. Upon
remand, the trial court should resolve the issues set forth in Hickman’s motion to dismiss.
{¶13} Hickman’s fourth assignment of error is sustained to the extent discussed above.
ASSIGNMENT OF ERROR I
THE TRIAL COURT APPLIED R.C. 2919.21(B) RETROACTIVELY TO MR.
HICKMAN, VIOLATING OHIO LAW.
ASSIGNMENT OF ERROR II
MR. HICKMAN CANNOT BE FOUND GUILTY OF FAILING TO PAY AN
ARREARAGES ONLY ORDER.
ASSIGNMENT OF ERROR III
THE AMENDMENT TO R.C. 2919.21(B) VIOLATES THE EX POST FACTO
CLAUSE OF THE UNITED STATES AND THE OHIO CONSTITUTION.
{¶14} Hickman’s remaining three assignments of error raise arguments related to the
merits of his motion to dismiss. The trial court did not address the merits of these issues and will
be required to do son on remand. Thus, they are not properly before us at this time.
III.
{¶15} Hickman’s fourth assignment of error is sustained to the extent discussed above.
His remaining assignments of error are not properly before us at this time. The judgment of the
Medina County Court of Common Pleas is reversed, and the matter is remanded for proceedings
consistent with this decision.
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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 Medina, 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.
DONNA J. CARR
FOR THE COURT
TEODOSIO, J.
SUTTON, J.
CONCUR.
APPEARANCES:
CHONG M. WON, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.