State v. Pittman ( 2014 )

[Cite as State v. Pittman, 2014-Ohio-5001.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLANT, CASE NO. 9-13-65
v.
ROBERT PITTMAN, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Trial Court No. 09 CR 0337
Judgment Affirmed
Date of Decision: November 10, 2014
APPEARANCES:
Brent W. Yager and Megan K. Frericks for Appellant
Rocky Ratliff for Appellee
Case No. 9-13-65
ROGERS, J.
{¶1} Plaintiff-Appellant, the State of Ohio, appeals the judgment of the
Court of Common Pleas of Marion County granting Defendant-Appellant, Robert
Pittman’s, motion to dismiss. On appeal, the State argues that the trial court erred
by improperly dismissing counts five and six of the indictment because R.C.
2929.21(B) allows for the prosecution of those who violate a court order by failing
to pay child support arrearage. For the reasons that follow, we affirm the trial
court’s judgment.
{¶2} The parties stipulated that on November 15, 1988, the Court of
Common Pleas of Marion County, Juvenile Division, ordered Pittman to pay child
support for Sate and Sade Douglas beginning January 6, 1989 until the children
had completed high school or were otherwise emancipated.
{¶3} On November 20, 2006, the Court of Common Pleas of Marion
County, Family Division, declared Sade and Sate Douglas emancipated effective
August 31, 2006, due to being 18 years old. At that time, an arrearage order in the
amount of $34,313.45 was entered against Pittman for the child support he had
failed to previously pay.1
{¶4} On January 19, 2007, a contempt motion was filed alleging that
Pittman had failed to pay the child support arrears ordered in the November 20,
1
In that order, Pittman was ordered to pay $236.16 per month plus a 2% processing fee towards the
arrearages owed.
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2006 judgment entry. On December 6, 2007, Pittman was found in contempt for
failing to pay his arrearages. As a result of his contempt, Pittman was ordered to
serve 30 days in jail, with 25 suspended on the condition that Pittman begin
paying his child support arrears until paid in full.
{¶5} On July 9, 2009, the Marion County Grand Jury indicted Pittman on
six counts of nonsupport of dependents in violation of R.C. 2919.21(B), felonies
of the fourth degree (counts 1-6), and three counts of nonsupport of dependents in
violation of R.C. 2919.21(B), felonies of the third degree (counts 7-9). All of the
counts alleged that Pittman had previously been convicted of or pled guilty to a
felony violation of R.C. 2919.21 in April of 2003. Revised Code 2919.21(B)
reads, “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.”
{¶6} After the indictment was filed, no proceedings took place in this case
until almost four years later, when Pittman learned of the indictment through a
background check that was completed as part of his job application. On June 11,
2013, Pittman voluntarily appeared before the court to accept service of the
indictment and to be arraigned.
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{¶7} On July 29, 2013, Pittman filed a motion to dismiss the indictment for
violating his constitutional right to speedy trial due to pre-indictment and post-
indictment delay. On August 19, 2013, the State filed a response.
{¶8} According to the record, a hearing was held on Pittman’s motion to
dismiss on August 20, 2013. No transcript of this hearing was produced. The trial
court’s judgment entry states that at the hearing, Pittman orally sought amendment
of his motion to also seek dismissal of the indictment on the grounds of a violation
of the statute of limitations under R.C. 2901.13.
{¶9} On August 26, 2013, the trial court filed its judgment entry on the
matter. In its entry, the court analyzed the relevant factors as described in Barker
v. Wingo, 407 U.S. 514 (1972), to determine whether Pittman’s constitutional right
to a speedy trial was violated. The trial court reasoned that the delay from the
indictment to arraignment was significant, that the delay was caused by the State,
that Pittman had no ability to assert a right to speedy trial because he was unaware
of the indictment, that when Pittman learned of the indictment he asserted his right
to a timely disposition, and that there was “likely to be some prejudice, at least
with respect to the oldest charges.” (Docket No. 28, p. 6-7). Thus, the trial court
concluded that Pittman’s “right to a speedy trial would be violated by the
prosecution of the offenses alleged in Counts 1, 2, 3, 4, 7, 8, and 9, which are all
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offenses which allege criminal conduct prior to July 1, 2007.”2 (Id. at 7). The
court further found that Pittman’s speedy trial rights were not violated as to
Counts 5 and 6, which alleged conduct after July 1, 2007, as “some civil
enforcement action [had] take[n] place in December 2007, and the likelihood of
prejudice is less with respect to the more recent allegations.” (Id.).
{¶10} Subsequently, on September 24, 2013, Pittman filed a second motion
to dismiss the remaining counts of the indictment (counts 5 and 6), arguing that he
was being prosecuted for failing to pay an “arrearage only” order, rather than
failing to pay a child support order, and that such an order could not be the basis of
prosecution under R.C. 2919.21(B). To support his assertion, Pittman cited the
dissenting opinion in State v. Dissinger, 5th Dist. Delaware No. 02CA-A-02-010,
2002-Ohio-5301. In Dissinger, a 2-1 majority found that an “arrearage only”
order could be the basis of prosecution under R.C. 2919.21(B). Id. at ¶ 12.
However, the dissent contended that the wording of the statute seemed to preclude
prosecution where there was no current legal support obligation for the children.
Id. at ¶ 17-19.
{¶11} On October 16, 2013, the State filed a Bill of Particulars clarifying
the allegations contained in Counts 5 and 6, which stated that “on or about July 1,
2007 through June 30, 2009, [Pittman] did fail to provide support as established by
2
The court also found that Counts 1, 2, 7, 8, and 9, which alleged conduct prior to June 11, 2007, were
barred by the statute of limitations.
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a court order * * *[.] [Pittman] failed to provide support for a total accumulated
period of 101 weeks out of 104 consecutive weeks.” (Docket No. 35, p. 1). The
wording is the same in the Bill of Particulars for Counts 5 and 6 except for the fact
that Count 5 refers to Pittman’s failure to pay his arrears to Alma Douglas for Sate
Douglas, while Count 6 refers to Pittman’s failure to pay his arrears for Sade
Douglas. On November 4, 2013, the parties filed agreed factual stipulations so
that the court could make a pre-trial ruling on whether Pittman could be
prosecuted under R.C. 2919.21(B) for failing to pay an “arrearages only order.”
(Docket No. 37).
{¶12} On November 5, 2013, a hearing was held on Pittman’s second
motion to dismiss. At the hearing, the parties clarified the stipulated facts and
presented the question to the court of whether R.C. 2919.21(B) criminalized
failure to pay an “arrearage only” order. Nov. 5, 2013 Tr., p. 15.
{¶13} On November 14, 2013, the trial court filed its entry granting
Pittman’s second motion to dismiss. In the entry, the trial court agreed with the
dissent in Dissinger. The trial court reasoned that words in a statute should “be
construed according to the rules of grammar and common usage,” and that
offenses “shall be strictly construed against the state, and liberally construed in
favor of the accused.” (Docket No. 39, p. 6). The trial court found that “some
meaning must be given to the phrase in R.C. 2919.21, “to another person whom …
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the person is legally obligated to support.” (Emphasis sic.) (Id.). The trial court
read this to mean that “at the time of the commission of the criminal offense, there
must be a current obligation of support.” (Id. at 7). As Pittman’s “current”
obligation concluded with the children’s emancipation in 2006, the trial court
agreed with the dissent in Dissinger and granted Pittman’s second motion to
dismiss Counts 5 and 6 of the indictment. (Id.).
{¶14} It is from this judgment that the State appeals, asserting the following
assignment of error for our review.
Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
IMPROPERLY DISMISSED COUNTS FIVE AND SIX OF
THE INDICTMENT FILED AGAINST THE DEFENDANT-
APPELLEE BECAUSE O.R.C. 2919.21(B) ALLOWS FOR THE
PROSECUTION OF THOSE WHO VIOLATE A COURT
ORDER BY FAILING TO PAY A CHILD SUPPORT
ARREARAGE.
{¶15} In its sole assignment of error, the State argues that the trial court
erred in granting Pittman’s second motion to dismiss. Specifically, the State urges
this court to follow the majority opinion in Dissinger, and reverse the trial court’s
ruling. We decline to do so.
{¶16} We review a trial court’s dismissal of an indictment, pursuant to
Crim.R. 48, under an abuse of discretion standard. See State v. Busch, 76 Ohio
St.3d 613, 616 (1996); State v. Bales, 9th Dist. Lorain No. 11CA010126, 2012-
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Ohio-4426, ¶ 12. A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. State v. Boles, 187 Ohio App. 3d 345, 2010-Ohio-278, ¶ 16-18
(2d Dist.). When applying the abuse of discretion standard, a reviewing court may
not simply substitute its judgment for that of the trial court. State v. Slappey, 3d
Dist. Marion No. 9-12-58, 2013-Ohio-1939, ¶ 12.
{¶17} Pursuant to R.C. 2919.21(B), “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.” It is undisputed that
Pittman’s children are emancipated and his only obligation, currently, is to pay the
arrearages that have accumulated while his daughters were minors.
{¶18} “In construing statutes, we must read words and phrases in context
and construe them in accordance with rules of grammar and common usage.”
Kimber v. Davis, 10th Dist. Franklin No. 12AP-888, 2013-Ohio-1872, ¶ 12, citing
State ex rel. Russell v. Thornton, 111 Ohio St. 3d 409, 2006-Ohio-5858, ¶ 11.
Further, it is the duty of this court “to give effect to the words used in a statute, not
to insert words not used.” State v. S.R., 63 Ohio St. 3d 590, 595 (1992), citing
Cleveland Elec. Illum. Co. v. City of Cleveland, 37 Ohio St. 3d 50 (1988),
paragraph three of the syllabus. If a statute’s language is clear and unambiguous,
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the court must apply the statute as written. Cheap Escape Co., Inc. v. Haddox,
L.L.C., 120 Ohio St. 3d 493, 2008-Ohio-6323, ¶ 9.
{¶19} R.C. 2919.21(B) is unambiguous, and thus, we must give effect to its
plain meaning. Slingluff v. Weaver, 66 Ohio St. 621 (1902), paragraph two of the
syllabus. Notably, the legislature used “is” when talking about the defendant’s
obligation of support. “ ‘Is’ is the present tense third person singular of the verb
‘to be.’ ” Ohio Bur. of Workers’ Comp. v. Dernier, 6th Dist. Lucas No. L-10-
1126, 2011-Ohio-150, ¶ 30; see also Webster’s Third New International
Dictionary 1197 (2002). Therefore, “is” refers to something being in the present,
not in the past or in the future. Dernier at ¶ 30. Since Pittman’s daughters are
emancipated, he was under no current legal obligation to support his children at
the time the State filed its indictment.3
{¶20} We also find the majority opinion in Dissinger unpersuasive because
it relied on R.C. 3115.01’s definition of “child support order,” but that definition
only applies to sections 3115.01 to 3115.59 of the Revised Code. It is only
appropriate to look at other sections and chapters of the Revised Code when a
statute is ambiguous. See McAtee v. Ottawa Cty. Dept. of Human Servs., 111 Ohio
App.3d 812, 818 (6th Dist.1996) (applying the in pari materia rule of construction
3
We also note that arrearages are paid to the custodial parents or a state agency as a reimbursement, not as
support for the child. See State v. Sorrell, 187 Ohio App. 3d 286, 2010-Ohio-1618, ¶ 16 (2d Dist.) (“While
the object of a support order is clearly the welfare of the dependent child, the child’s claim to any arrearage
owed by the offender is secondary to that of the custodial parent or state agency tasked with the
responsibility of collecting and distributing the payments made pursuant to the support order fashioned by
the court.”). As such, there is a different level of necessity attached to arrearages.
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to an ambiguous statute). Here, the statute is clear and unambiguous, and
therefore, it is unnecessary to look to other Chapters of the Revised Code to
ascertain the legislature’s intent.
{¶21} Moreover, the term “child support order” is not even used in R.C.
2919.21(B). Instead, the legislature stated 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.” R.C.
2919.21(B). Where the legislature uses different terms between statutes, it should
be presumed that the legislature intended different meanings. State ex rel. Fink v.
Registrar, Ohio Bur. of Motor Vehicles, 12th Dist. Butler No. CA98-02-021, 1998
WL 634707, *2 (Sept. 14, 1998), citing Metro. Securities Co. v. Warren State
Bank, 117 Ohio St. 69, 76 (1927); see also State ex rel Cordray v. Court of Claims
of Ohio, 190 Ohio App. 3d 161, 2010-Ohio-4437, ¶ 27 (10th Dist.). That a “child
support order” may include arrearages in R.C. 3115.01 has little persuasive effect
on whether an arrearage only order can create a violation under R.C. 2919.21.
{¶22} If we were to look at other statutes to attempt to discern what the
legislature meant when enacting R.C. 2919.21, we should look to R.C. 2705.031,
which states that “[t]he court shall have jurisdiction to make a finding of contempt
for the failure to pay support and to impose the penalties set forth in section
2705.05 of the Revised Code in all cases in which past due support is at issue even
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if the duty to pay support has terminated * * *.” (Emphasis added.) R.C.
2705.05(E). The Ohio Supreme Court determined that because the legislature
“expressly granted a court the jurisdiction to hold contempt proceedings after the
obligation to support a child has ended” such action was proper. (Emphasis
added.) Cramer v. Petrie, 70 Ohio St. 3d 131, 133-134 (1994). R.C. 2919.21 also
refers to the duty to pay support, but does not include that same explicit language
which would allow the prosecution of an arrearage only support order if the
defendant is not under a current legal obligation to support the child.
{¶23} Even if we were to find that the statute is ambiguous, the rule of
lenity would require us to affirm the trial court’s judgment. The rule of lenity is
codified in R.C. 2901.04 and states that “sections of the Revised Code defining
offenses or penalties shall be strictly construed against the state, and liberally
construed in favor of the accused.” R.C. 2901.04(A). “ ‘[T]he ‘touchstone’ of the
rule of lenity ‘is statutory ambiguity.’ ” Bifulco v. United States, 447 U.S. 381,
387, 100 S. Ct. 2247 (1980), quoting Lewis v. United States, 445 U.S. 55, 65, 100
S. Ct. 915 (1980). Therefore, under this rule, ambiguity in a criminal statute “is
construed strictly so as to apply the statute only to conduct that is clearly
proscribed.” State v. Elmore, 122 Ohio St. 3d 472, 2009-Ohio-3478, ¶ 38, citing
United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219 (1997).
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{¶24} Arguably, while one interpretation of R.C. 2919.21(B) could allow
for the prosecution for nonpayment of an arrearage only child support order, it is
just as likely that the legislature intended that the statute only be used for the
prosecution of persons who are currently obligated to support his or her child, for
the reasons stated above. Without the State demonstrating that R.C. 2919.21
explicitly and unambiguously allows for the prosecution for nonpayment of an
arrearage only child support order, we must find in the defendant’s favor.
{¶25} Accordingly, we overrule the State’s sole assignment of error.4
{¶26} Having found no error prejudicial to the State in the particulars
assigned and argued, we affirm the trial court’s judgment.
Judgment Affirmed
WILLAMOWSKI, P.J., concurs.
/jlr
SHAW, J., concurring separately in Judgment Only.
{¶27} I concur in the judgment of the majority only for the reason that
under the factors set forth by the Supreme Court of the United States in Barker v.
Wingo, 407 U.S. 514 (1972), the unexplained delay of essentially four years
between indictment and arraignment in this case was presumptively unreasonable,
4
We recognize that our decision is in conflict with State v. Dissinger, 5th Dist. Delaware No. 02CA-A-02-
010, 2002-Ohio-5301, and may be subject to certification pursuant to App.R. 25.
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particularly in light of the fact that it appears that the prosecution only ever
proceeded at all because Pittman responded to authorities after learning of the
indictment while applying for a job. See also, State v. King, 8th Dist. Cuyahoga
No. 91909, 2009-Ohio-4551; State v. Stapleton, 41 Ohio App. 2d 219 (3d
Dist.1974). As a result, I would find that for the reasons set forth in its judgment
entry of August 26, 2013, the trial court’s November 14, 2013, judgment
dismissing Counts 5 and 6 was warranted on constitutional speedy trial grounds.
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