State v. Chapman (Slip Opinion) , 2020 Ohio 6730 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Chapman, Slip Opinion No. 2020-Ohio-6730.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-6730
THE STATE OF OHIO, APPELLEE, v. CHAPMAN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Chapman, Slip Opinion No. 2020-Ohio-6730.]
Criminal law—Community-control conditions—Procreation—Nonsupport of
dependents—A court must consider whether a community-control condition
is reasonably related to rehabilitating the offender, has some relationship
to the crime of which the offender was convicted, and relates to conduct
which is criminal or reasonably related to future criminality and serves the
statutory ends of probation—Court of appeals’ judgment reversed and
cause remanded to the trial court.
(No. 2019-1410—Submitted July 21, 2020—Decided December 18, 2020.)
APPEAL from the Court of Appeals for Lorain County, No. 18CA011377,
2019-Ohio-3535.
——————
DEWINE, J.
SUPREME COURT OF OHIO
{¶ 1} A man was convicted for failing to pay child support to the mothers
of his 11 children and sentenced to community control. One of the conditions of
community control imposed by the court was that the man “make all reasonable
efforts to avoid impregnating a woman” during his sentence. The question before
us is whether that condition was appropriate. We conclude that it was not.
I. Background
{¶ 2} London Chapman was charged with 11 felony counts of nonsupport
of dependents in 6 separate criminal cases as a result of his failure to pay child
support. Chapman’s sentence included several standard conditions of community
control, including that he undergo alcohol and drug screenings, obtain and verify
employment, and pay restitution. In addition, the court ordered Chapman “to make
all reasonable efforts to avoid impregnating a woman during the community control
period or until such time that [he] can prove to the Court that he is able to provide
support for his children he already has and is in fact supporting the children or until
a change in conditions warrant the lifting of [this] condition.”
{¶ 3} Chapman appealed, asserting that the condition was impermissible
because it was not reasonably related to a rehabilitative purpose and because it
violated his constitutional right to procreate. The Ninth District Court of Appeals
rejected Chapman’s nonconstitutional argument, concluding that the anti-
procreation condition satisfied the reasonableness test enunciated by this court in
State v. Jones, 49 Ohio St. 3d 51, 52-53, 550 N.E.2d 469 (1990). State v. Chapman,
9th Dist. Lorain Nos. 16CA010969, 16CA010970, 16CA010971, 16CA010972,
16CA010973, and 16CA010974, 2018-Ohio-343, ¶ 4-11. The court of appeals
declined to consider Chapman’s constitutional argument on the basis that it had not
been addressed by the trial court. Id. at ¶ 12. Instead, it remanded the matter to the
trial court to consider that issue in the first instance. Id. at ¶ 12-13.
{¶ 4} On remand, the trial court issued a 19-page judgment entry addressing
Chapman’s constitutional arguments, the bulk of which was devoted to providing
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examples of other fundamental rights that could be limited by community-control
conditions. It determined that while the procreation prohibition impacted a
fundamental right, the condition was constitutional because it was narrowly tailored
to serve the state’s interest in preventing Chapman from fathering more children
than he could support. The trial court, thus, reimposed the same condition. In doing
so, it noted that it could “imagine any number of reasonable efforts” by which
Chapman could “avoid impregnating a woman during the community control
period,” but it declined to provide any guidance as to what would constitute
reasonable efforts. (Emphasis sic.)
{¶ 5} Chapman appealed a second time. The court of appeals first
determined that res judicata barred it from reconsidering Chapman’s
nonconstitutional challenge to the procreation prohibition. 2019-Ohio-3535, ¶ 8.
Turning to Chapman’s constitutional argument, the court rejected Chapman’s
argument that the procreation prohibition should be subjected to strict-scrutiny
analysis. Because it did not find heightened scrutiny to be appropriate, and because
it had already rejected Chapman’s argument that the condition was not reasonably
related to a rehabilitative purpose, the court affirmed his sentence. Id. at ¶ 12.
{¶ 6} We accepted Chapman’s discretionary appeal to determine whether
the procreation prohibition impermissibly infringes upon Chapman’s constitutional
rights. See 157 Ohio St. 3d 1534, 2020-Ohio-122, 137 N.E.3d 1194.
II. Analysis
{¶ 7} Before we decide whether the procreation prohibition is
constitutional, we need to establish the proper standard for reviewing the condition.
Courts imposing community control have broad discretion to impose residential,
nonresidential, and financial sanctions. See R.C. 2929.15(A)(1). If a court imposes
a nonresidential sanction, it must order the offender to abide by the law and not
leave the state without the permission of his probation officer and abide by “any
other conditions of release * * * that the court considers appropriate.” Id.
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{¶ 8} Generally, a court will not be found to have abused its discretion in
fashioning a community-control sanction as long as the condition is reasonably
related to the probationary goals of doing justice, rehabilitating the offender, and
insuring good behavior. State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888, 814
N.E.2d 1201, ¶ 12. Further, a condition “ ‘cannot be overly broad so as to
unnecessarily impinge upon the probationer’s liberty.’ ”1 Id. at ¶ 13, quoting Jones,
49 Ohio St. 3d at 52, 550 N.E.2d 469.
A. We Reject Chapman’s Argument that We Should Apply Strict Scrutiny
{¶ 9} Chapman asks us to carve out an exception to the general standard of
reasonableness review. He argues that because the anti-procreation condition
impinges upon a fundamental right, it should be assessed under a strict-scrutiny
standard, by which the government must show that the condition is narrowly
tailored to serve a compelling governmental interest.
{¶ 10} There is no question that procreation is a fundamental right protected
under the United States Constitution. Talty at ¶ 8, citing Skinner v. Oklahoma, 316
U.S. 535, 541, 62 S. Ct. 111, 86 L. Ed. 165 (1942). And the trial court’s requirement
that Chapman take “all reasonable efforts to avoid” fathering more children while
on community-control sanctions limits that right. The crucial question is how we
review conditions of sentencing that limit a fundamental right.
{¶ 11} Criminal sanctions, by their very nature, implicate an offender’s
exercise of his fundamental rights. A deprivation of liberty is an inherent part of a
criminal sentence. A term of imprisonment limits fundamental rights that are
inconsistent with an individual’s “status as a prisoner or with the legitimate
penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817,
1. In 1995, community control replaced probation as a possible sanction under Ohio’s felony-
sentencing law. Talty at ¶ 16. We have explained that “community control is the functional
equivalent of probation” and that there is “no meaningful distinction between community control
and probation for purposes of reviewing the reasonableness of their conditions.” Id.
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822, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974). Thus, the requirement of prison
security justifies restrictions on many fundamental rights: prisoners lose their right
to travel, they can’t bring a firearm with them to prison, the warden doesn’t need a
warrant to search their cells, and their rights to association and speech are curtailed.
{¶ 12} So too with those offenders sentenced to probation. An individual
sentenced to probation—or community control—does not possess the absolute
liberty enjoyed by the general population, but rather finds his liberty dependent
upon the conditions and restrictions of his probation. See Griffin v. Wisconsin, 483
U.S. 868, 874, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). “Just as other punishments
for criminal convictions curtail an offender’s freedoms, a court granting probation
may impose reasonable conditions that deprive the offender of some freedoms
enjoyed by law-abiding citizens.” United States v. Knights, 534 U.S. 112, 119, 122
S. Ct. 587, 151 L. Ed. 2d 497 (2001).
{¶ 13} Indeed, someone who commits a crime and is duly convicted
surrenders key aspects of his liberty. Our constitutions command that no person
shall be deprived of life, liberty, or property without due process of the law.
Fourteenth Amendment to the U.S. Constitution; Ohio Constitution, Article I,
Sections 1, 2, and 16. But when a person has broken the laws of society and has
been afforded due process of the law, the government may legitimately deprive that
person of his liberty.
{¶ 14} For that reason, we have never applied a strict-scrutiny analysis to a
criminal punishment. We don’t review a prison sentence and ask if a particular
sentence imposed is narrowly tailored to advance a compelling governmental
interest. To the contrary, we have recognized that certain restrictions on
fundamental rights are inherent in criminal punishment.
{¶ 15} Chapman argues that the right to procreate is unique because it finds
its foundation in the right to privacy in the United States Constitution. See, e.g.,
Eisenstadt v Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)
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(stating that the right to privacy protects against governmental intrusion affecting
the decision to bear a child). But privacy rights—even those explicitly enumerated
in the Ohio and United States Constitutions—have never been subject to a strict-
scrutiny analysis when limited by a probation condition. Thus, an offender can be
subject to warrantless searches of his home while on probation because he is not
entitled to the same liberty interests as other citizens. Knights, 534 U.S. at 118-
119, 122 S. Ct. 587, 151 L. Ed. 2d 497. And such a limitation is a permissible
condition of probation if it reasonably furthers the goals of rehabilitation and
protecting society. Id. at 119. If a court can uphold a probation condition limiting
a defendant’s entitlement to the protections of an enumerated constitutional right
because the condition is reasonable, there is little basis to hold Chapman’s right to
privacy through procreation to a higher standard.
{¶ 16} In sum, because convicted criminals serving their sentences enjoy
diminished liberty interests when compared with the general population, a trial
court can impose community-control sanctions that limit the offender’s
fundamental rights, provided that such limitations further the statutory goals of
community control and are not overbroad. See id.; see also Talty, 103 Ohio St. 3d
177, 2004-Ohio-4888, 814 N.E.3d 1201, at ¶ 12-13.
B. We Apply the Reasonable-Relationship Test Set Forth in State v. Jones
{¶ 17} Thus, rather than strict scrutiny, the starting place for our review is
the test we announced in Jones, which looks to whether a community-control
condition reasonably relates to the offense at issue, furthers the twin goals of
rehabilitation and justice, and does not cause a greater deprivation of liberty than is
necessary to achieve those penological goals. 49 Ohio St. 3d at 53, 550 N.E.2d 469.
{¶ 18} That said, trial courts should not be unmindful of a condition’s
impact on a fundamental right. Some deprivations of liberty are fundamental to
criminal punishment: by virtue of being locked up in prison, certain constitutional
rights of a prisoner are necessarily compromised. So too with a community-control
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sanction; inherent in being supervised while allowed to remain in the community
are restrictions on travel, limitations on association, restrictions on firearms
ownership, being subject to warrantless searches, and the like. Other restrictions,
however, are not necessarily intrinsic to community control but are tailored to the
rehabilitation of the offender.
{¶ 19} When it comes to conditions of this second type, courts should take
particular care to ensure that the sanctions are appropriately crafted to meet a proper
rehabilitative purpose. This is not because the Ohio and United States Constitutions
impose an enhanced-scrutiny requirement, but rather because we call certain rights
fundamental for a reason: these are the rights that by enshrinement in our
constitutions we as a society have chosen to provide the most protection for. As a
result, a probation condition of this type that implicates a fundamental right imposes
a more severe punishment than one that does not. Because the punishment is more
severe, the justification must be more exacting so as to ensure that the condition
does not limit the probationer’s liberty more than is necessary to achieve the goals
of community control. See Jones at 52-53.
{¶ 20} Our caselaw reflects this treatment of nonstandard community-
control conditions that impact fundamental rights. In Jones, we explained that a
probation condition “cannot be overly broad so as to unnecessarily impinge upon
the probationer’s liberty.” 49 Ohio St. 3d at 52, 550 N.E.2d 469. At issue in that
case was a probation condition that prohibited the offender from communicating
with anyone under the age of 18 who was not a member of his immediate family.
Id. at 53. We upheld the condition, but only after modifying its scope. Noting that
a literal enforcement of the condition could be problematic, we determined that it
“should reasonably be interpreted as meaning an illicit, or potentially unlawful
association or communication.” Id. at 54-55.
{¶ 21} In Talty, we dealt with a community-control condition also requiring
the offender to make reasonable efforts to avoid conceiving a child; but unlike in
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this case, there was no specific provision for lifting the condition if the offender
became current on his support obligations. 103 Ohio St. 3d 177, 2004-Ohio-4888,
814 N.E.2d 1201, at ¶ 18. We began our analysis by repeating our statement in
Jones that a condition “ ‘cannot be overly broad so as to unnecessarily impinge
upon the probationer’s liberty.’ ” Id. at ¶ 13, quoting Jones at 52. “[I]nfringements
of constitutional rights must be tailored to specific government interests,” we
explained. Id. at ¶ 23. We further noted that “the availability of ready alternatives
to a regulation is evidence that the regulation is unreasonable[.]” Id. at ¶ 14. We
then applied the Jones test and carefully scrutinized the provision, ultimately
concluding that the provision was invalid because it did not provide for a lifting
mechanism. Id. at ¶ 21-25. We reached this result notwithstanding the fact that the
offender was not current on his support obligations, and that nothing would have
prevented him from asking the trial court to lift the ban should he become current.
Id. at ¶ 21.
{¶ 22} Importantly, because we concluded that the anti-procreation
condition in Talty was overbroad, we found it unnecessary to decide whether it
would have been permissible had it included a lifting mechanism. We explicitly
stated that we were “not determin[ing] whether a mechanism that allowed the anti[-
]procreation condition to be lifted would have rendered the condition valid under
Jones * * *.” Id. Today, we address the question we left unanswered in Talty.
C. The Procreation Condition Is Not Reasonably Related to the Goals of
Community Control
{¶ 23} In Jones, we established a three-part test to assess whether a
community-control condition is reasonably related to the goals of community
control. A court must “consider whether the condition (1) is reasonably related to
rehabilitating the offender, (2) has some relationship to the crime of which the
offender was convicted, and (3) relates to conduct which is criminal or reasonably
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related to future criminality and serves the statutory ends of probation.” Jones, 49
Ohio St. 3d at 53, 550 N.E.2d 469.
{¶ 24} The Jones test directs us to look at the crime that Chapman
committed—the nonsupport of his dependents. R.C. 2919.21(B) makes it a crime
to fail to provide support as required by court order. But a failure to pay the entire
support amount is excused if the accused can show he “provide[d] the support that
was within [his] ability and means.” R.C. 2919.21(D). The statutory scheme does
not criminalize the failure to support one’s dependents in and of itself. Rather, it
penalizes an individual’s failure to provide the mandated support that he can pay.
{¶ 25} Thus, under the statute, the criminality of Chapman’s conduct is
separate from the number of children he has. While his obligation might increase
with more children, his ability to pay is separate. And it is his failure to pay as his
means and ability allow that is criminal—not the number of children for whom he
failed to provide. And while the dissent says that the condition imposed “targets
[Chapman’s] criminal conduct,” Chapman’s criminal conduct was not fathering
children, it was failing to pay support. Dissenting opinion at ¶ 36.
{¶ 26} The same considerations also reveal that the procreation prohibition
is not reasonably related to the other two considerations enumerated in Jones—
rehabilitation and the possibility of present or future criminality. 49 Ohio St. 3d at
53, 550 N.E.2d 469. No doubt fathering another child would increase Chapman’s
support obligations, but it would have little effect on preventing the criminal
conduct that the statute proscribes. The statute is clear—if Chapman’s means and
ability only allow him to pay $1,000 per month to support his dependents and he
does so, then his conduct complies with the statutory scheme. And that remains the
case whether Chapman has 7 children, or 77.
{¶ 27} Chapman’s failure to properly prioritize his obligations toward his
children and pay support as he is able could prompt several conditions of
community-control sanctions that would reasonably relate to his offense. The trial
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court properly ordered Chapman to obtain and maintain full-time employment. It
could have gone further in this direction: it might have ordered him to participate
in job training, placed him in a program that would ensure that he was working and
that child support was being deducted from his paycheck, required that he undergo
education in financial planning and management, or placed restrictions on his
spending. All of these would be reasonably related to Chapman’s crime of
nonpayment of child support. But as long as the crime of nonsupport depends on
an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable
measures” to avoid fathering another child during his term of community control is
not.
{¶ 28} The lack of a fit between the offense of which Chapman was
convicted and the availability of other more effective conditions leads to the
conclusion that the condition “unnecessarily impinge[d] upon the probationer’s
liberty.” Jones at 52. On remand, the trial court must remove the anti-procreation
condition, but may impose other conditions that are appropriately tailored to the
goals of community control.
III. Conclusion
{¶ 29} The procreation prohibition is not reasonably related to the goals of
community control, nor is it reasonably tailored to avoid impinging Chapman’s
liberty no more than necessary. As a result, we reverse the judgment of the Ninth
District Court of Appeals and remand the cause to the trial court for the entry of a
sentence that conforms with this opinion.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and KENNEDY, FISCHER, and STEWART, JJ., concur.
DONNELLY, J., concurs in judgment only.
FRENCH, J., dissents, with an opinion.
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FRENCH, J., dissenting.
{¶ 30} I agree with the majority that we should apply the reasonable-
relationship test this court set out in State v. Jones, 49 Ohio St. 3d 51, 53, 550 N.E.2d
469 (1990), to review the anti-procreation condition that the trial court imposed on
appellant, London Chapman. Under Jones, we must consider “whether the
condition (1) is reasonably related to rehabilitating the offender, (2) has some
relationship to the crime of which the offender was convicted, and (3) relates to
conduct which is criminal or reasonably related to future criminality and serves the
statutory ends of probation.” Id. I also agree with the majority’s conclusion that
“a trial court can impose community-control sanctions that limit the offender’s
fundamental rights, provided that such limitations further the statutory goals of
community control and are not overbroad.” Majority opinion at ¶ 16; see also Jones
at 52 (recognizing that a community-control condition cannot be “overly broad so
as to unnecessarily impinge upon the probationer’s liberty”). Rather than simply
applying Jones, though, the majority now requires an amorphous “more exacting”
justification for the community-control condition at issue here. Majority opinion
at ¶ 19. I fear that the majority’s heightened burden will lead to confusion and
uncertainty as courts try to grapple with whether the more-exacting-justification
standard applies to a court’s imposition of a community-control condition that
implicates a fundamental right. I would simply apply the standard set out in Jones
and uphold the trial court’s anti-procreation condition here. Accordingly, I dissent.
The Trial Court Provided Significant Justification to Support the Anti-Procreation
Condition It Imposed
{¶ 31} Before I apply our established standard of review from Jones, I must
fill in gaps in the majority’s recitation of the facts. The majority opinion makes it
seem as though the trial court’s anti-procreation order was lacking in analysis and
justification. It was not. After soliciting and receiving briefs from the parties, the
trial court imposed the community-control condition that Chapman “make all
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reasonable efforts to avoid impregnating a woman during the community control
period or until such time that [he] can prove to the Court that he is able to provide
support for his children he already has and is in fact supporting the children or until
a change in conditions warrant the lifting of [this] condition.” The court also
imposed other community-control conditions, including one requiring Chapman to
obtain and maintain a full-time job during the community-control period. But
because the trial court had not considered Chapman’s constitutional challenge to
the anti-procreation condition, the Ninth District Court of Appeals reversed the trial
court’s judgment and remanded the matter to the trial court so that it could consider
that issue. State v. Chapman, 9th Dist. Lorain Nos. 16CA010969, 16CA010970,
16CA010971, 16CA010972, 16CA010973, and 16CA010974, 2018-Ohio-343,
¶ 12. On remand, the trial court issued a comprehensive judgment entry analyzing
and rejecting Chapman’s constitutional arguments. As part of its analysis, the trial
court applied the Jones test and considered whether the anti-procreation condition
was overly broad. It then imposed the same anti-procreation community-control
condition that it had imposed previously, but it added additional—that is, more
exacting—justification for the condition.
{¶ 32} In its order imposing the anti-procreation condition, the trial court
explained that the condition has a direct relationship to Chapman’s nonsupport
offenses, which show that Chapman has continually failed to support children who
by law he is required to support. It concluded that the condition relates directly to
Chapman’s repeated conduct of fathering children who he does not support. And
it called Chapman’s violations of his prior nonsupport obligations “egregious and
systemic.” The trial court also explained that the condition has a rehabilitative
purpose of giving Chapman a better chance to support the children he has already
fathered. The trial court emphasized that the condition requires Chapman only to
make reasonable efforts to avoid impregnating a woman during the community-
control period, and it recognized that there are a number of options available to
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Chapman to satisfy that condition. Finally, the court discussed the condition’s
“lifting mechanism” and outlined a nonexhaustive list of events that might warrant
lifting the condition, including the following:
1. Adoption [of the child]
2. Child lives with [Chapman]
3. Child reaches age of majority
4. Child becomes emancipated
5. Child joins the military at age 17
6. Child pass[es] away
7. Support forgiveness
8. Other reasons [domestic relation court] would terminate [the]
order
9. Support modification
10. [Chapman] [p]ay[s] off arrears
11. [Chapman] [i]n fact support[s] the existing children
12. Any combination of the above
It is difficult to imagine what additional justification would satisfy the majority.
We Apply the Reasonable-Relationship Test Set Out in State v. Jones
{¶ 33} The majority correctly recognizes that the three-part reasonable-
relationship test set out in Jones is the starting point for reviewing the
reasonableness of a community-control condition. And the majority recognizes
that a trial court can impose a reasonable community-control condition that limits
an offender’s fundamental rights if the condition satisfies the statutory goals of
community control and is not overly broad. But then the majority modifies the
Jones test and imposes a higher burden for when a community-control condition
that implicates a fundamental right is “not necessarily intrinsic to community
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control but [is] tailored to the rehabilitation of the offender.” Majority opinion at
¶ 18. In those cases, the majority says, there must be a “more exacting” justification
to support the condition. Id. at ¶ 19. The problem with that standard is that it is
standardless. Which fundamental rights are “necessarily intrinsic to community
control,” id. at ¶ 18, such that an amorphous “more exacting” justification, id. at
¶ 19, is required and which are not? Is a “more exacting” justification necessary to
support a condition that prevents an offender from owning or possessing a firearm
while he is on community control for a nonviolent offense? See, e.g., State v.
Nigrin, 11th Dist. Trumbull No. 2015-T-0056, 2016-Ohio-2901, ¶ 6 (offender
prohibited from owning or possessing a firearm or ammunition while on
community control for criminal-trespassing offense). What about a condition that
prohibits an offender’s freedom of speech by wholly preventing her from
communicating with anyone who is incarcerated during the community-control
period? See, e.g., United States v. Holloway, 740 F.2d 1373, 1383 (6th Cir.1984)
(offender prohibited from contacting anyone in prison as a condition of her
probation following her conviction for tax fraud).
{¶ 34} The majority represents that our caselaw, specifically Jones and
State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, supports the
adoption of this more-exacting-justification standard, but it does not. In Jones, 49
Ohio St. 3d at 52-53, 550 N.E.2d 469, this Court adopted a three-part test for
reviewing a community-control condition that affects an offender’s fundamental
rights—in that case, the rights to free speech and free association. It did not adopt
a more-exacting-justification requirement because the three-part test, plus its
pronouncement that a condition may not be “overly broad so as to unnecessarily
impinge upon” the offender’s liberty, was sufficient. Id. at 52. In Talty, we
expressly declined to address the offender’s constitutional arguments and simply
applied the Jones test. Talty at ¶ 18-25. In my view, Jones provides the appropriate
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standard for analyzing whether a community-control condition, including one that
implicates a fundamental right, is reasonable.
{¶ 35} Applying the three-part test outlined in Jones, I agree with the trial
court and the court of appeals that the community-control condition at issue here is
reasonably related to rehabilitating Chapman, has some relationship to the crimes
of which he was convicted, and relates to criminal conduct or reasonably relates to
future criminal conduct and serves the purposes of community control.
{¶ 36} The majority concludes that the trial court’s anti-procreation
condition is not reasonably related to the goals of community control because the
“criminality of Chapman’s conduct is separate from the number of children he has.”
Majority opinion at ¶ 25. I disagree. To reach this conclusion, the majority focuses
on R.C. 2919.21(B) and (D), and it characterizes Chapman’s failure to meet his
court-imposed child-support obligations as the only criminal conduct relevant to
this case, because that is the criminal conduct for which he was convicted. But
application of the Jones test is not limited to consideration of the exact crimes for
which community control was imposed. It requires that the community-control
condition have some relationship to the crimes of which the offender was
convicted. Jones at 53. It is difficult to imagine how fathering dependents that the
law mandates Chapman to support does not have some relationship to the criminal
act of failing to pay court-ordered support for his dependents. The Jones test also
requires a court to consider whether the condition relates to conduct that is criminal
or is reasonably related to future criminality. Id. R.C. 2919.21(A)(2) expressly
prohibits a person from abandoning or failing to provide adequate support for his
child, with limited exceptions that are not at issue here. The trial court’s anti-
procreation condition targets that criminal conduct. Contrary to what the majority
represents, the statutory scheme does criminalize the failure to support one’s
dependents. The community-control condition at issue here seeks to prevent
Chapman from having additional children whom he will not support.
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{¶ 37} The trial court’s anti-procreation condition is also reasonably related
to rehabilitating Chapman. As the majority acknowledges, “[F]athering another
child would increase Chapman’s support obligations.” Majority opinion at ¶ 26. It
stands to reason then that by taking reasonable precautions to prevent fathering
another child, Chapman will not increase his child-support obligations. If his child-
support obligations do not increase, Chapman is more likely to be able to meet his
current, outstanding obligations.
{¶ 38} Finally, the trial court’s anti-procreation community-control
condition is not overly broad in this case. In Talty, 103 Ohio St. 3d 177, 2004-Ohio-
4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation
community-control condition was overly broad because it did not contain a
mechanism for lifting the condition. But here, the trial court required only that
Chapman make reasonable efforts to avoid impregnating another woman during
his five-year community-control period. The trial court then outlined a minimum
of 12 ways by which Chapman could have the condition lifted. This is not a case
in which the trial court decided to impose an anti-procreation community-control
condition for minor instances of failure to pay child support. Chapman currently
has at least 11 children that he is not supporting, and his child-support arrearage at
the time of his 2018 resentencing was already over $200,000. The trial court found
that Chapman’s violations of his prior child-support obligations were “egregious
and systemic.” Under these facts, its anti-procreation condition is not overly broad.
{¶ 39} Because the anti-procreation community-control condition that the
trial court imposed here is reasonable under the three-part test set out in Jones and
is not overly broad, I would affirm the judgment of the Ninth District Court of
Appeals. Therefore, I dissent.
_________________
Dennis P. Will, Lorain County Prosecuting Attorney, and Jennifer Goodall,
Assistant Prosecuting Attorney, for appellee.
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Bremke Law, L.L.C., and Giovanna V. Bremke, for appellant.
David J. Carey, B. Jessie Hill, and Freda J. Levenson, urging reversal for
amicus curiae, American Civil Liberties Union of Ohio Foundation.
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