State v. Leroy

[Cite as State v. Leroy, 2022-Ohio-4588.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 21AP-425
v. : (C.P.C. No. 20CR-4722)
Matthew W. Leroy, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 20, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and
Paula M. Sawyers, for appellee. Argued: Paula M. Sawyers.
On brief: Yeura Venters, Public Defender, and Timothy E.
Pierce, for appellant. Argued: Timothy E. Pierce.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, P.J.
{¶ 1} Defendant-appellant, Matthew W. Leroy, appeals from a judgment of the
Franklin County Court of Common Pleas imposing four years of community control in
connection with his importuning conviction. For the following reasons, we affirm in part,
and reverse in part.
I. Facts and Procedural History
{¶ 2} In October 2020, Leroy was indicted by the Franklin County Grand Jury on
one count of attempted unlawful sexual conduct with a minor in violation of R.C. 2923.02
as it relates to R.C. 2907.04, a fourth-degree felony, one count of importuning in violation
of R.C. 2907.07, a fifth-degree felony, and one count of disseminating matter harmful to
juveniles in violation of R.C. 2907.31, a fifth-degree felony. In May 2021, Leroy pleaded
No. 21AP-425 2
guilty to the importuning count, and a nolle prosequi was entered as to the other two
counts. Despite a presumption in favor of a prison sentence, the trial court found that the
circumstances favored no prison time. Consequently, the trial court imposed four years of
community control. As part of Leroy's community control sentence, the trial court imposed
multiple specific community control conditions, including conditions barring any new
arrests and conditions relating to Leroy's court-ordered child support obligation.
{¶ 3} Leroy timely appeals.
II. Assignments of Error
{¶ 4} Leroy assigns the following errors for our review:
[1.] The lower court abused its discretion when it imposed as a
requirement of Appellant's community control for violating
R.C. 2907.07 the special condition that he "comply with child
support order and establish wage withholding, if available.
Child support in arrears of approximately $3,300 is to be paid
down within 24 months over and beyond making all current
payments." In the case sub judice application of this
community control condition is not reasonably related to
rehabilitating Appellant for his violation of R.C. 2907.07, has
no relationship to Appellant's violation of R.C. 2907.07, and is
not related to conduct which is criminal or reasonably related
to future criminality and does not serve the statutory ends of
community control, all in violation of Appellant's Right to Due
Process of Law under the Fifth and Fourteenth Amendments of
the United States Constitution, his Right to Due Course of Law
under Article I, Sections 1 and 16 of the Ohio Constitution, R.C.
2929.15(A)(1), R.C. 2929.18, R.C. 2953.08(G)(2), and State v.
Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990).
[2.] The lower court plainly erred when it imposed as a
requirement of Appellant's community control for violating
R.C. 2907.07 the special condition that he "comply with child
support order and establish wage withholding, if available.
Child support in arrears of approximately $3,300 is to be paid
down within 24 months over and beyond making all current
payments." In the case sub judice application of this
community control condition is not reasonably related to
rehabilitating Appellant for his violation of R.C. 2907.07, has
no relationship to Appellant's violation of R.C. 2907.07, and is
not related to conduct which is criminal or reasonably related
to future criminality and does not serve the statutory ends of
community control, all in violation of Appellant's Right to Due
Process of Law under the Fifth and Fourteenth Amendments of
No. 21AP-425 3
the United States Constitution, his Right to Due Course of Law
under Article I, Sections 1 and 16 of the Ohio Constitution,
Crim. R. 52(B), R.C. 2929.15(A)(1), R.C. 2929.18, R.C.
2953.08(G)(2), and State v. Jones, 49 Ohio St.3d 51, 550
N.E.2d 469 (1990).
[3.] The lower court abused its discretion when it imposed the
community control condition that Appellant "have no new
arrests" during the period of supervision. The "no new arrests"
condition violated Appellant's Right to Due Process of Law
under the Fifth and Fourteenth Amendments of the United
States Constitution, his Right to Due Course of Law under
Article I, Sections 1 and 16 of the Ohio Constitution, R.C.
2929.15(A)(1), and R.C. 2953.08(G)(2).
[4.] The lower court plainly erred when it imposed the
community control condition that Appellant "have no new
arrests" during the period of supervision. The "no new arrests"
condition violated Appellant's Right to Due Process of Law
under the Fifth and Fourteenth Amendments of the United
States Constitution, his Right to Due Course of Law under
Article I, Sections 1 and 16 of the Ohio Constitution, Crim. R.
52(B), R.C. 2929.15(A)(1), and R.C. 2953.08(G)(2).
[5.] The lower court plainly erred when it imposed restitution
of "approximately $3,300 [] to be paid down within 24 months
over and beyond making all current payments" as a condition
of Appellant's community control. This condition violated
Appellant's Right to Due Process of Law under the Fifth and
Fourteenth Amendments of the United States Constitution, his
Right to Due Course of Law under Article I, Sections 1 and 16
of the Ohio Constitution, Crim. R. 52(B), R.C. 2929.15(A)(1),
R.C. 2929.18, and R.C. 2953.08(G)(2).
III. Discussion
{¶ 5} Because they involve interrelated issues, we address together all five of
Leroy's assignments of error. Leroy's first, second, and fifth assignments of error allege the
trial court erred in imposing, as conditions of community control, the requirements that he
comply with a child support order, that he establish wage withholding, if available, as to
that child support obligation, and, in addition to making all currently required payments,
that he pay down, within 24 months, approximately $3,300 child support in arrears. His
third and fourth assignments of error allege the trial court erred in imposing, as a condition
of community control, the requirement that he not be arrested during the period of
No. 21AP-425 4
supervision. Thus, Leroy's five assignments of error challenge particular community
control conditions that the trial court imposed on him in connection with his importuning
conviction.
{¶ 6} If a prison sentence for a felony conviction is not required, a sentencing court
may impose community control sanctions as punishment for the offense. State v. Heinz,
146 Ohio St.3d 374, 2016-Ohio-2814, ¶ 14; see R.C. 2929.15(A)(1) ("If in sentencing an
offender for a felony the court is not required to impose a prison term, a mandatory prison
term, or a term of life imprisonment upon the offender, the court may directly impose a
sentence that consists of one or more community control sanctions authorized pursuant to
[R.C.] 2929.16, 2929.17, or 2929.18."). "If the court sentences the offender to one or more
nonresidential sanctions under section 2929.17 of the Revised Code, the court shall impose
as a condition of the nonresidential sanctions that, during the period of the sanctions, the
offender must abide by the law and must not leave the state without the permission of the
court or the offender's probation officer." R.C. 2929.15(A)(1). This means a sentencing
court imposing nonresidential sanctions must require the offender to "abide by the law"
and not leave the state without the court or probation officer's permission. In this context,
"the law" means criminal law. Columbus v. Bickel, 77 Ohio App.3d 26, 33 (10th Dist.1991).
The court also may impose any other community control condition that it considers
"appropriate." Id.; State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, ¶ 10. In view of
this broad discretion, we review a trial court's imposition of community control sanctions
under an abuse of discretion standard. Id.{¶ 7} A trial court's broad discretion in imposing community control sanctions,
beyond the two mandated under law, is limited by the goals of community control. Talty
at ¶ 11; State v. White, 10th Dist. No. 14AP-1027, 2015-Ohio-3844, ¶ 5. That is, the
additional community control conditions, like probation conditions previously, must
reasonably relate to rehabilitation, administering justice, and ensuring good behavior.
Talty at ¶ 16. To determine whether a community control condition serves those purposes,
"courts should 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 [now community control]." State v. Jones, 49 Ohio
No. 21AP-425 5
St.3d 51, 53 (1990); Talty at ¶ 16 (finding the Jones test applicable to community control
sanctions); see State v. Stewart, 10th Dist. No. 04AP-761, 2005-Ohio-987, ¶ 6 ("With the
passage of Am.Sub.S.B. No. 2 in 1995, community control is the functional equivalent of
and has replaced probation as a possible sentence under Ohio's felony sentencing law.").
"Jones requires that all three prongs be satisfied in order for this court to find that the trial
court did not abuse its discretion." White at ¶ 10.
{¶ 8} Here, Leroy challenges the following imposed community control conditions:
Defendant shall comply with child support order and establish
wage withholding, if available. Child support in arrears of
approximately $3,300 is to be paid down within 24 months
over and beyond making all current payments.
Defendant shall have no new arrests or convictions.
(July 30, 2021 Jgmt. Entry at 2.) Leroy argues these conditions, as they relate to any new
arrests and his child support obligation, do not satisfy the three-prong Jones test.
{¶ 9} First, we address the condition that Leroy have "no new arrests." In State v.
Kidwell, 10th Dist. No. 94APA06-883, 1995 Ohio App. LEXIS 564 (Feb. 16, 1995), this court
held the trial court erred in revoking probation based solely on an arrest, "without
additional evidence that prohibited conduct actually occurred." Id. In reaching that
holding, this court rejected the argument that "Jones stands for the proposition that a
simple arrest, without more evidence of underlying criminal or prohibited conduct, may
serve as a condition upon which to revoke probation." Id. See State v. Byas, 8th Dist. No.
110157, 2021-Ohio-3924, ¶ 40 (citing cases, including Kidwell, for the principle that the
mere fact of an arrest cannot be the basis for a community control sanction violation
finding). The State argues that the "no new arrests" condition was appropriate here because
it was connected to the trial court's order of no new convictions. But this argument is
unpersuasive because the trial court's judgment entry states that Leroy "shall have no new
arrests or convictions." (Emphasis added.) This means merely an arrest would constitute
a violation of the condition imposed. Under Kidwell, this was error.
{¶ 10} Next, we address the conditions the trial court imposed relating to the child
support order. The PSI submitted to the trial court indicates that, in Perry County case No.
2011H1068, Leroy was ordered to pay $129 per month in child support, and, as of the
sentencing month in this matter, July 2021, he was approximately $3,300 behind on those
No. 21AP-425 6
payments. Although referred to in the PSI, a copy of the Perry County order itself was not
submitted for the trial court's review. As part of Leroy's community control sentence, the
trial court ordered Leroy to comply with the child support order, establish wage
withholding, if available, as to that child support obligation, and, in addition to making all
currently required payments, pay down, within 24 months, the amount in arrears. Under
R.C. 2919.21(B), it is a crime to fail to provide child support as required by court order, and
this statute requires a culpable mental state of recklessness. See State v. Collins, 89 Ohio
St.3d 524, 530-31 (2000) (concluding that because the statute is silent, the culpable mental
state required for a violation of R.C. 2919.21(B) is recklessness). Thus, insofar as the trial
court ordered Leroy not to violate R.C. 2919.21(B), this was consistent with R.C.
2929.15(A)(1) 's requirement that a sentencing court, imposing nonresidential sanctions,
order the offender not to violate any criminal law. However, insofar as the imposed child
support related community control conditions went beyond mandating compliance with
the terms of the Perry County order in accordance with criminal law, those conditions were
imposed at the discretion of the trial court, and therefore needed to satisfy the three prongs
of the Jones test.
{¶ 11} Leroy argues the child support related community control conditions met
none of the three prongs of the Jones test. He leads his challenge to these conditions on the
second prong—whether the conditions have some relationship to the crime of which the
offender was convicted. Thus, we first address this issue.
{¶ 12} We agree the record fails to show that the imposed child support conditions
had some relationship to the crime for which Leroy was convicted, importuning. The facts
established at the guilty plea hearing indicated that Leroy solicited a victim, whom he
believed to be a 15-year-old girl, but was actually a law enforcement officer, to engage in
sexual activity with him. In response to Leroy's challenge to the child support conditions,
the State suggests there was some relationship between Leroy's importuning conviction
and the child support conditions because both involved a juvenile (or at least a person Leroy
believed to be a juvenile). We reject this assertion. Even though Leroy's importuning
conviction involved what he believed was a juvenile, and the child support related
conditions also involved a juvenile, that commonality, without more, does not reasonably
establish, for the purpose of the Jones test, some relationship between Leroy's crime and
No. 21AP-425 7
the child support related conditions. Therefore, the trial court erred in ordering the child
support related conditions, as part of Leroy's sentence for his importuning conviction,
insofar as those conditions went beyond requiring Leroy to comply with the imposed terms
of the Perry County child support order.
{¶ 13} For these reasons, we sustain in part, and overrule in part, Leroy's first,
second, third, fourth, and fifth assignments of error.
IV. Disposition
{¶ 14} Having sustained in part, and overruled in part, all five of Leroy's
assignments of error, we affirm in part, and reverse in part, the judgment of the Franklin
County Court of Common Pleas, and remand this matter to that court for further
proceedings consistent with this decision and the law.
Judgment affirmed in part, reversed in part,
and cause remanded.
KLATT and McGRATH, JJ., concur.