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State v. Winslow

Court of Appeals of Ohio, Second District, Montgomery

June 14, 2019

STATE OF OHIO Plaintiff-Appellee
v.
BRYANT D. WINSLOW Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2017-CR-2467

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          SUSAN F. SOUTHER, Atty. Reg. No. 0058529, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} Winslow appeals from the trial court's October 5, 2018 judgment entry of conviction, following his no contest plea, on one count of non-support of dependents, in violation of R.C. 2919.12, a felony of the fifth degree. Winslow was sentenced to community control sanctions for a period not to exceed five years and was ordered to pay restitution in the amount of $5, 300.64. We hereby affirm the judgment of the trial court.

         {¶ 2} Winslow was indicted on August 30, 2017. He filed a motion to dismiss the indictment on June 11, 2018, asserting that he was not subject to prosecution under R.C. 2919.21(B) for the nonpayment of a court's order to pay a child-support arrearage, because he had no current obligation of support insofar as the child who was the subject of the order was emancipated. Specifically, according to Winslow, the period during which he was alleged not to have provided support to the child, D.K., was between June 1, 2012, and May 31, 2014, and the child was emancipated as of June 8, 2014. Winslow acknowledged that he "still owe[d] support money as an arrearage after the emancipation," and that the juvenile court had ordered him "to continue to make monthly payments of $265.03 plus processing fees until the arrearage is paid in full." Winslow pointed out that he "was not indicted for nonpayment on the arrearages until three years after the child had been emancipated," and that the indictment charged him "with nonsupport for dates that was ordered arrearage [sic] after June 8, 2014." Winslow argued that he "owed no current support after June 8, 2014" (the emancipation), and "any support owed before that date became an arrearage, which [he] is to pay off pursuant to the juvenile court order dated April 10, 2014." Citing State v. Pittman, 150 Ohio St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531, Winslow argued that he could not be prosecuted under R.C. 2919.21(B) for failure to make payments on a child support arrearage if the child for whom he owed support had been emancipated and there was no current obligation to support the child.

         {¶ 3} The State opposed Winslow's motion to dismiss, arguing that "Pittman dealt solely with the question of 'whether, pursuant to R.C. 2919.21(B), the state may prosecute a person who failed to make the payments set forth in an arrearage-only order issued after the date of his children's emancipation." (Emphasis sic.) The State distinguished Pittman, pointing out that "Pittman's children were emancipated on August 31, 2006, after which he was not legally obligated to pay support," but the charges against him applied to his "non-payment of an arrearage-only order between July 1, 2007, through June 30, 2009; a time during which Pittman did not have a current child support obligation due to the previous emancipation of his children."

         {¶ 4} The State argued that, although the emancipation of a child may terminate a support order, it does not absolve the obligor-defendant of his prior failure to make support payments while the support order was still in effect. The State asserted that Winslow had been charged "with non-support based on the current court order during the time alleged in the indictment - not on an arrearage-only order." Because the time frame specified in the indictment was prior to the child's emancipation and dealt directly "with a period of time when Defendant was required, pursuant to a non-arrearage court order, to support his non-emancipated child," the State asserted that Pittman did not apply to the facts of Winslow's case.

         {¶ 5} The trial court held a hearing on the motion to dismiss on August 3, 2018, and took the matter under advisement. On September 4, 2018, the court held a hearing "for the reading of the oral decision of the motion to dismiss." The court announced its decision as follows:

This matter is similar to that in Pittman in that the child for whom the support order is for the benefit of, specifically DK, is emancipated and was emancipated on June 8th of 2014 by order of the Montgomery County Juvenile Court which was submitted as State's Exhibit 2. It is further similar to Pittman in that Mr. Winslow was indicted after the child's emancipation on August 30th of 2017[sic], though that is where the similarities end.
Mr. Winslow's indictment for his alleged failure to pay support for his child, DK, between the dates of June 1, 2012, and May 31 of 2014 - - that time period is clearly before the emancipation of June 8th, 2014. While Mr. Winslow has an arrearage built up for the indicted period * * * that does not weigh upon this dismissal as he is not being charged with failure to pay that arrearage.
The Court cannot read the statute in light of Pittman to eviscerate the six-year statute of limitations and impose a statute limitation of the day of emancipation. To do so would * * * only reward and exacerbate the behavior of failing to provide supports [sic] but also to ignore and violate court orders. Based upon the evidence presented to the Court, the Court finds that during the indicted periods defendant was under a current obligation to support his child as alleged. However, that finding is only bearing upon this dismissal and not upon proof of the ultimate issue at trial. The defendant's motion for dismissal is therefore denied.

         {¶ 6} After the court's oral decision on the motion to dismiss, Winslow entered a no contest plea. (The court's written decision on the motion to dismiss was filed on September 19, 2018.) Sentencing occurred on October 2, 2018, and the judgment entry was filed on October 5, 2018.

         {¶ 7} Winslow asserts one assignment of error ...


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