[Cite as State v. Scates , 2014-Ohio-1284.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appellee

v. JOSEPH W. SCATES Defendant-Appellant Appellate Case No. 25825 Trial Court Case No. 2012-CR-2089
(Criminal Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of March, 2014.

. . . . . . . . . . . MATHIAS H. HECK, JR., by MICHELE D. PHI PPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, Montgomery County Pros ecutor’s Office, Appellate Divi sion, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee ROBERT L. SCOTT, Atty. Reg. No. 0086785, 8801 North Main Street, Suite 200, Dayton, Ohio 45415 Attorney for Defendant-Appellant

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 WELBAUM, J. {¶ 1} We are asked to decide if the trial court ordered excessive restitution in this case that did not result from the criminal acts to whic h the Appellant was convi cted. The parties agree that the trial court erred. We agree with the parties and reverse the order of restitution and remand to the trial court to hold a h earing to determine restitution. {¶ 2} The Montgomery County Grand Jury indi cted Appellant, Joseph Scates on four counts of nonsupport of depe ndents in violation of R.C. 2919.21(B) , fifth degree fe lonies. Scates entered a plea of guilty to counts one and four of the indictment . Prior to the pleas, the State indicated the amount of restitution for c ount one was $18,436.98 and on count two the amount was $56,539.96. The court relied upon thes e representations. The trial court sentenced Scates to concurrent nine month prison sent ences to be served concurrently with a six year prison term Scates was serving from a Clark County conviction.
ASSIGNMENT OF ERROR {¶ 3} Scates’ assignment of error states: The trial court erred by imposing an excessive restitution amount that did not result from the criminal acts to which the defendant-appellant plead guilty. {¶ 4} Scates notes that count one of the indictment pertains to the period of June 1, 2007 through May 31, 2009. The trial court ordered Scates to pay $18,436.98 restitution for this 24-month period. This is approx imately $802.00 a month. The trial c ourt also ordered Scates to pay $56,539.96 restitution for the nine-month peri od of October 1, 2011 through June 30, 2012, alleged in count four of the indictment. This is approximately $6,282.21 a month. {¶ 5} It is significant whether a trial c ourt imposed restitution as a condition of 3

 community control or as part of the sentence. If the restitution is imposed as a condition of community control, the requirement that the offender make payments on his total arrearage is permitted even if such amount goes bey ond a permissible amount of restitution. State v. Hubbell , 2d Dist., Darke No. 1617, 2004-Ohio-398, ¶ 13, quoting State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990); State v. Craft , 2d Dist. Greene No. 2001-CA-128, 2002-Ohio-5127. {¶ 6} Here, the trial court’s restitution order was part of a prison sentence. Therefore, restitution is limited to the amount of nonsuppor t arrearage accrued within the time period included in the indictment. State v. Hubbell , Id., at ¶ 11. This limitation does not relieve the offender of his duty to pay the child support arrear age in the court that has issued the underlying child support orders. Id., at ¶ 12. {¶ 7} We agree with the parties that on its f ace, the trial court or der imposed restitution beyond the time periods specified in the two counts of the indictment. Accordingly, we also agree with the parties that Scates’ assignment of error has merit. We reverse the trial court order of restitution and remand to the trial court to hold a hearin g to determine restitution.

. . . . . . . . . . . . . FAIN and DONOVAN, JJ., concur.

Copies mailed to: Mathias H. Heck Michele D. Phipps Robert L. Scott 4

 Hon. Michael Tucker