[Cite as State v. Arnold , 2020-Ohio-3749.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio/City of Toledo Court of Appeals Nos. L-20-10 07 L-20-1008 Appellee Trial Court Nos. CRB-19-10920 v. CRB-19-10919 Clarence Arnold DECISION AND JUDGMENT Appellant Decided: July 17, 2020 * * * * * David Toska, Chief Prosecutor, and Jimmie Jones, Assistant Pro secutor, for appellee. Autumn D. Adams, for appellant.

* * * * * ZMUDA, P.J.

I. Introduction {¶ 1} This consolidated matter is before the court on appeal from jud gments of the Toledo Municipal Court, denying defendant-appellant Clarence Ar nold’s motion to dismiss charges in two cases, based upon the assertion of doubl e jeopardy protections. Finding no error, we affirm.2. II. Facts and Procedural Background {¶ 2} Arnold was charged with interference with custody rights in vio lation of R.C. 2919.23(A)(1), in Toledo Municipal Court case Nos. CRB-19- 10919 and CRB-19-10920, refiled from case Nos. CRB-17-12378 and CRB-17-13 043. The complainant and Arnold also had an ongoing custody case in juve nile court. Arnold filed a motion to dismiss the charges, arguing actions taken by the j uvenile court in sanctioning his conduct bar prosecution arising from that same conduct. {¶ 3} While the juvenile proceedings are separate, and not part of th is appeal, Arnold attached a copy of the November 21, 2018 judgment in the juvenile court to his motion to dismiss in each case. Pursuant to this entry, the ju venile court found Arnold in contempt, and imposed a 10-day, stayed sentence. The juvenile court included a purge provision, permitting Arnold to “purge himself of contempt by s trictly complying” with the juvenile court’s orders regarding counseling and domestic v iolence services for the children. The juvenile court further ordered that Arnold would remain the residential parent and legal custodian of the children, and specified paren ting time for the child’s

mother. {¶ 4} Arnold acknowledged that, on February 4, 2019, the juvenile cou rt held a purge hearing, and imposed the 10-day sentence. He moved to di smiss the criminal proceedings against him, arguing the city could not prosecute h im a second time for conduct addressed by the juvenile court in the contempt proceed ings.3. {¶ 5} The trial court disagreed, and denied Arnold’s motion to dismis s in each case, noting double jeopardy protections apply and prohibit a s econd adjudication only where the defendant was first subjected to criminal contempt pr oceedings. The trial court found Arnold was subject to a 10-day jail sentence as a result of his failure to purge civil contempt, and therefore, his criminal charges did not run afoul of double jeopardy. {¶ 6} Arnold filed an appeal in each case. On February 24, 2020, we consolidated the appeals. III. Assignment of Error {¶ 7} Arnold filed his appeal, as permitted by R.C. 2505.02(B)(4), ch allenging the trial court’s judgment through the following assignment of erro r: The prosecution of Appellant in Toledo Municipal Court is a violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Article I, Section 10 of the Ohi o Constitution, and therefore must be dismissed with prejudice. IV. Double Jeopardy {¶ 8} We review a decision denying a motion to dismiss on the grounds of double jeopardy applying a de novo standard. State v. Anderson , 148 Ohio St.3d 74, 2016-Ohio5791, 68 N.E.3d 790, ¶ 20. Double jeopardy protections prevent a second prosecution for the same offense after acquittal or conviction, and prevents mu ltiple punishments for the

same offense. State v. Mutter , 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 15, citing North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 33 L.Ed.2d 6564. (1969), overruled on other grounds , Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). {¶ 9} “It is well established that the Double Jeopardy Clause protect s against successive prosecutions for the same offense.” State v. Lovejoy , 79 Ohio St.3d 440, 443, 683 N.E.2d 1112 (1997), citing United States v. Dixon (1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). These protections might al so apply to contempt proceedings, “but only if the contempt penalty is criminal in n ature, rather than civil.”

State v. Shabazz , 8th Dist. Cuyahoga No. 103617, 2016-Ohio-5238, ¶ 11, citing Dayton

Women’s Health Ctr. v. Enix , 68 Ohio App.3d 579, 591, 589 N.E.2d 121 (2d Dist.1991). Therefore, whether the contempt sanction was civil or criminal is key. {¶ 10} Here, Arnold argues that the actual imprisonment imposed after the purge hearing rendered the contempt criminal in nature, barring a sub sequent prosecution. In support, he argues that distinctions between civil and criminal contempt are irrelevant where an individual faces actual imprisonment. Based on contro lling law, we disagree. {¶ 11} We must distinguish between criminal and civil contempt proceed ings in order to apply appropriate constitutional safeguards. State v. Kilbane , 61 Ohio St.2d 201, 204-205, 400 N.E.2d 386, 390 (1980). We determine the nature o f contempt proceedings, primarily, based on the purpose the trial court so ught to accomplish in imposing the sanction. Kilbane at 206, citing Shillitani v. United States , 384 U.S. 364, 370, 86 S.Ct.1531, 16 L.Ed.2d 622 (1966); see also Liming v. Damos , 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 12.5. {¶ 12} If the sanction is remedial, or seeks to coerce conduct for the benefit of a complainant and not the court, the proceeding is generally a ci vil contempt proceeding. Liming at ¶ 12, citing Brown v. Executive 200, Inc. , 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980). “Often, civil contempt is characterized by conditi onal sanctions” and the contemnor has the ability to avoid the sanction by complying wi th the court’s order. Id. {¶ 13} In contrast, a criminal contempt proceeding involves a sanction meant to punish and vindicate the court’s authority. Id. , citing Kilbane at 206. The sanction in criminal contempt is unconditional. Id. {¶ 14} Based on Arnold’s representations, the juvenile court imposed a 10-day jail sentence, but stayed that sentence to permit Arnold an opportun ity to purge contempt. Therefore, the sanction was conditional, and civil. Following a purge hearing, the juvenile court determined Arnold failed to purge, and ordered h im to serve the sentence. While Arnold argues the purge hearing and imposition of sentenc e constituted a new, criminal contempt proceeding, his argument lacks merit. {¶ 15} “A purge hearing is not a new contempt proceeding but a conclus ion of the originating contempt hearing, because its purpose is to determi ne whether the contemnor has satisfied the purge conditions.” Liming at ¶ 16. Arnold could have avoided the 10-day sentence by satisfying the purge conditions. Furthermor e, the juvenile court’s imposition of the 10-day sentence was not a new sentence or new sanction, as Arnold “held the keys” to his jailhouse door for the entire period lea ding up to the purge hearing. See Liming at ¶ 17.6. {¶ 16} Accordingly, because the contempt sanction was conditional and aimed at coercing Arnold’s compliance with court ordered obligations, th e sanction arose from civil contempt proceedings. The sanction, therefore, did not i mplicate any double jeopardy protections, and the trial court properly denied the m otion to dismiss the charges in municipal court. Appellant’s sole assignment of error is fo und not well-taken.

V. Conclusion {¶ 17} Finding substantial justice has been done, we affirm the judgme nts of the Toledo Municipal Court. Appellant Clarence Arnold is ordered t o pay the costs of this appeal pursuant to App.R. 24. Judgments affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.