[Cite as State v. Anderson , 2019-Ohio-3534.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO Appellee

v. LEE ANDERSON Appellant C.A. No. 18CA011376

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 14CR090045 14CR090048 14CR090049 14CR090050 14CR090051
DECISION AND JOURNAL ENTRY Dated: September 3, 2019

TEODOSIO, Presiding Judge. {¶1} Defendant-Appellant, Lee Anderson, appeal s from the judgment of the Lorain County Court of Common Pleas. This Court affirms.
I. {¶2} Mr. Anderson pleaded guilty to five counts of felony non-support, having failed to pay child support in five different cases over seve ral years. The trial co urt notified the parties that it intended to impose an anti-procreati on condition upon Mr. Anderson as part of his sentence and gave them an opportunity to brie f the constitutionality of such a condition. It ultimately imposed a sentence of five years of community control and ordered, as a condition of that sentence, that Mr. Anderson “make all r easonable efforts to avoid impregnating a woman during the community control period or until such time that [he] can prove to the Court that he is2 able to provide support for his children he already has and is in fact supporting the children or until a change in conditions warrant the lifting of this condition.” {¶3} Mr. Anderson appealed from his sentence and challenged the anti-procreation condition on both constitutional and non-constitutional grounds. See State v. Anderson , 9th Dist. Lorain Nos. 16CA011068, 16CA011069, 16CA011070, 16CA011071 & 16CA011072, 2018- Ohio-342. We rejected his non-c onstitutional challenges, but declin ed to review the remainder of his argument. Id. at ¶ 9-12. Because the trial court’ s judgment entry did not address Mr. Anderson’s constitutional challenges, we reversed and remanded the matter for the trial court to consider his constitutional arguments in the first instance. Id. at ¶ 12. {¶4} On remand, Mr. Anderson file d an additional brief in s upport of his argument, and the trial court conducted a shor t hearing. The court ultimate ly rejected Mr. Anderson’s arguments and found its anti-proc reation condition to be constitu tionally sound. It, therefore, sentenced Mr. Anderson to five years of community control and ordered him subject to the same anti-procreation condition that it had imposed in its original judgment entry. It further ordered him to pay restitution and past c ourt-ordered child support arrearages in each of his five cases. The total amount that the court imposed exceeded $100,000. {¶5} Mr. Anderson now appeals from the tria l court’s judgment and raises two assignments of error for our review.
II. ASSIGNMENT OF ERROR ONE THE TRIAL COURT INFRINGED APPELLANT’S DUE PROCESS AND EQUAL PROTECTION RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION AND ARTICLE I, SECTIONS ONE, TWO, AND SIXTEEN OF THE OHIO CONSTITUTION AND APPELLANT’S RIGHT TO PRIVACY UNDER THE NINTH AMENDMENT TO THE CONSTITUTION AND ARTICLE I, SECTION TWENTY OF THE3

OHIO CONSTITUTION WHEN IT IMPOSED A PROBATION CONDITION ON APPELLANT TO TAKE REASONABLE STEPS TO AVOID CONCEIVING ANOTHER CHILD WHILE HE IS ON PROBATION. {¶6} In his first assignment of error, Mr. Anderson argues that the trial court erred when it ordered him to comply with the anti-proc reation condition of his community control. He challenges the condition on both non-constitu tional and constitutional grounds. For the following reasons, this Court rejects his arguments. {¶7} “The doctrine of law of the case ‘provide s that the decision of a reviewing court in a case remains the law of that case on the legal questions involve d for all subsequent proceedings in the case at both the trial and reviewing levels.’” State v. Chapman , 190 Ohio App.3d 528, 2010-Ohio-5924, ¶ 7 (9th Dist.), quoting Nolan v. Nolan , 11 Ohio St.3d 1, 3 (1984). The doctrine “is rooted in principles of res judicata and issue preclusion * * *.” State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 35. “Res judicata bars the assertion of claims against a valid, final judgment of c onviction that have been raised or c ould have been raised on appeal.”
State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59. It “promotes the principles of finality and judicial economy by preventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard.” State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18. {¶8} To the extent Mr. Anderson has challe nged the anti-procreation condition on nonconstitutional grounds, his argument is barred by the doctrines of law of the case and res judicata. During his first appeal, Mr. Anderson challenged the same condition on nonconstitutional grounds. See Anderson , 2018-Ohio-342, at ¶ 4. This Court rejected his arguments, finding that he failed to show the condition offended either the three-part test enunciated in State v. Jones , 49 Ohio St.3d 51 (1990), or Jones’ prohibition against overbroad4

conditions. See id. at ¶ 9-11. We remanded the matter to th e trial court solely for it to consider Mr. Anderson’s constitutional challenge in the first instance. See id. at ¶ 12. Thus, Mr. Anderson already had a full and fair opportunity to present this Court w ith his non-constitutional challenge, and he may not now relitigate that issue. See Ketterer at ¶ 59; Saxon at ¶ 18. Under the law of the case doctrine, our prior decision is dispositive. See Nolan at 3. We, therefore, limit our review to the merits of Mr. Anderson’s constitutional challenge. {¶9} Appellate courts generally “review [a] trial court’s imposition of communitycontrol sanctions under an abus e-of-discretion standard.” State v. Talty (“ Talty II ”), 103 Ohio St.3d 177, 2004-Ohio-4888, ¶ 10. Yet, a de novo standa rd of review applies when a reviewing court is presented with a constitutional challenge. State v. Honey , 9th Dist. Medina No. 08CA0018-M, 2008-Ohio-4943, ¶ 4. “A de novo review requires an independent review of the trial court’s decision without any de ference to [its] determination.” State v. Consilio , 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4. {¶10} “It is undisputed that the right to proc reate is considered fundamental under the United States Constitution * * *.” Talty IIat ¶ 8. Mr. Anderson contends that, because the antiprocreation condition infringes upon his fundamental right to procre ate, it is subject to strictscrutiny review. He argues that it was the State’s burden to prove that the condition was narrowly tailored to meet a compelling state interest. See, e.g., State v. Lowe , 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 18. Because the State failed to do so, he argues, the anti-procreation condition is unconstitutiona l and cannot stand. {¶11} On more than one occasion, this Court has recognized that probation conditions, even when they infringe upon fundamental rights, ar e valid so long as they satisfy the test set forth in State v. Jones , supra . See State v. Conkle , 129 Ohio App.3d 177, 179 (9th Dist.1998),5
appeal not allowed , 84 Ohio St.3d 1433; State v. Brillhart , 129 Ohio App.3d 180, 184 (9th Dist.1998); State v. Talty (“ Talty I ”), 9th Dist. Medina No. 02CA0087-M, 2003-Ohio-3161, ¶ 15-17, rev’d on other grounds , Talty II , 103 Ohio St.3d 177, 2004-Ohio-4888. Strict-scrutiny review is not warranted in those instances becau se probationers “do not enjoy the same degree of liberty as citizens who have not violated the law.” State v. Oakley , 245 Wis.2d 447, 466 (2001). Accord Talty I at ¶ 18; Brillhart at 184; State v. Taylor , 9th Dist. Lorain Nos. 13CA010366, 13CA010367, 13CA010368 & 13CA010369, 2014-Ohio- 2001, ¶ 22 (Carr, J., concurring in judgment only). “As long as a condition of probation meets [the Jones ] test, the imposition of the condition is not grounds for reversal.” Conkle at 179. Moreover, the Jones test “applies with equal force to community-control sanctions.” Talty II at ¶ 16. {¶12} Mr. Anderson has made no attempt to distinguish the foregoing case law or to explain why this Court ought to abandon its precedent. See App.R. 16(A)(7); Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). Accordingly, we abide by our prior decisions and reject his argume nt that the anti-procreation condition is subject to strict-scrutiny review. See Conkle at 179; Brillhart at 184; Talty I at ¶ 15-16. Because the anti-procreation condition is not s ubject to heightened review and we have already rejected Mr. Anderson’s argument that the conditi on must fail on non-constitutional grounds, see Anderson , 2018-Ohio-342, at ¶ 9-11, we conclude that his ar gument lacks merit. Accordingly, his first assignment of error is overruled. ASSIGNMENT OF ERROR TWO THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ORDERED RESTITUTION IN EXCESS OF THE ARREARS THAT ACCRUED DURING THE PERIOD IN THE INDICTMENT.6 {¶13} In his second assignment of error, Mr. A nderson argues that the trial court erred when it ordered him to pay restitution and child support arrearages in one lump sum. He acknowledges that the court had th e authority to impose both awards, see State v. Hodge , 9th Dist. Lorain No. 14CA010648, 2015-Ohio-3724, ¶ 5-9, and has not challenged the amounts due. Instead, he asks us to address “whether it is proper for the court to address the restitution and arrears as one whole amount.” He asserts that it could be important to know the exact amounts attributable to each in the event “there is a forgiveness or a reduction * * *.” {¶14} The record reflects that Mr. Ande rson did not object to the court’s restitution/arrearage award on the foregoing basis or otherwise raise this issue in the lower court. He only objected to the court’s award on the basis that it encompassed a timeframe outside his indictment period; an argument he has since abandoned. Because Mr. Anderson failed to object or otherwise raise this issue in the lower court, he has forfeited this issue for appeal. See State v. Ford , 9th Dist. Summit No. 26073, 2012-Ohio-1327, ¶ 6. While the forfeiture would not preclude him from raising a claim of plai n error, Mr. Anderson has not done so. See id. This Court, therefore, rejects his argument on the ba sis that he has not preserved it for appeal. See
State v. Stevens , 9th Dist. Medina Nos. 16CA0033-M & 16CA0034-M, 2017-Ohio-5482, ¶ 21 (“When an appellant does not develop a plain error argument in his brief, this Court will not create one on his behalf.”). Mr. Anderson’s second assignment of error is overruled.
III. {¶15} Mr. Anderson’s assignments of error are ove rruled. The judgment of the Lorain County Court of Common Pleas is affirmed. Judgment affirmed.7

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT

HENSAL, J. SCHAFER, J. CONCUR.

APPEARANCES: GIOVANNA V. BREMKE, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and JENNIFER GOODALL, Assistant Prosecuting Attorney, for Appellee.