Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Attorney for
F. SOUTHER, Atty. Reg. No. 0058529, Attorney for
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
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
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 ...