[Cite as State v. Chapman , 2018-Ohio-343.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. LONDON CHAPMAN Appellant C.A. Nos. 16CA010969 16CA010970 16CA010971 16CA010972 16CA010973 16CA010974

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 15CR092067 15CR092068 15CR092069 15CR092070 15CR092071 15CR092072

DECISION AND JOURNAL ENTRY Dated: January 29, 2018

HENSAL, Presiding Judge. {¶1} London Chapman appeals his sentence from the Lorain County Court of Common Pleas. We reverse and remand for further proceedings.

I. {¶2} This consolidated appeal stems from si x separate criminal cases wherein London Chapman pleaded guilty to a total of 11 counts of failing to pay child support in violation of Revised Code Section 2919.21(B), fe lonies of the fifth degree. Relevantly, the trial court continued the sentencing hearing to allow the parties to research whether it had the authority to2

impose an anti-procreation condition as part of Mr . Chapman’s community control. Both parties submitted briefs to the trial court and discussed the matter at the sentencing hearing. {¶3} The trial court ultimately sentenced Mr. Chapman to community control for a term of five years. As a condition to his commu nity control, the trial court ordered Mr. Chapman to “make all reasonable efforts to avoid impregnating a woman during the community control period or until such time that [Mr. Chapman] can prove to the Court that he is able to provide support for his children he already has and is in fact supporting the children or until a change in conditions warrant[s] the lifting of this condition.” Mr. Chapman has appealed the trial court’s sentence, raising one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

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 1, SECTION TWENTY OF THE OHIO CONSTITUTION WHEN IT IMPOSED A PROBATION CONDITION ON APPELLANT TO TAKE REASONABLE STEPS TO AVOID CONCEIVING ANOTHER CHILD WHILE HE IS ON PROBATION. {¶4} In his sole assignment of error, Mr. Chapman argues that the trial erred when it ordered him to take reasonable steps to avoi d conceiving another child while on community control. He makes two primary arguments in this regard, one of which is based upon a constitutional challenge, th e other of which is based upon the Ohio Supreme Court’s decision in

State v. Jones , 49 Ohio St.3d 51 (1990), which is a non-constitutional challenge. 1 See State v.

1 While Mr. Chapman’s assignment of error is captioned solely as a challenge to the constitutionality of the community-control c ondition, his argument as it relates to Jones is nonconstitutional and will be analyzed accordingly. See, e.g. , J.B. v. B.Y. , 9th Dist. Medina No.3

Talty , 103 Ohio St.3d 177, 2004-Ohio-4888, ¶ 11 (“ Talty II ”) (“[O]ur opinion in Jones * * * addressed only a nonconstitu tional challenge to the condition.”). Although Mr. Chapman’s merit brief, at times, presents a combined analysis of these issues, we will address them separately, as they are two distinct legal issues. Further, we must first decide wh ether his non-constitutional argument is dispositive, as “courts decide constitu tional issues only when absolutely necessary.”

Smith v. Leis , 106 Ohio St.3d 309, 2005-Ohio-5125, ¶ 54; Talty IIat ¶ 9 (addressing the nonconstitutional challenge to a community-control condition under Jones first to determine whether it was dispositive). We, therefore, will be gin with a non-constitutional analysis under Jones

. {¶5} The Ohio Supreme Court’s decision in Jones , which addressed a probation

condition 2 that ordered the defendant to “have no association or communication, direct or indirect, with anyone under the age of eighteen (18) years not a member of his immediate family[,]” “stands for the proposition that probati on conditions must be reasonably related to the statutory ends of probation a nd must not be overbroad.” Jones at 52; Talty II at ¶ 16. The Jones Court began its analysis by citing the probation statute in effect at the time, which provided that a trial court may impose a condition on probation that is related to the “interests of doing justice, rehabilitating the offender, and in suring his good behavior[.]” Jones at 52, quoting former R.C. 2951.02(C). The current community-control statut e provides the same language, with the exception of the replacement of “his” with “offender[.]” See R.C. 2929.25(C)(2) (“In the

15CA0082-M, 2016-Ohio-7918, ¶ 6 (analyzing the substance, rather than the caption, of an assignment of error). 2 The Ohio Supreme Court decided Jones prior to the statutory replacement of probation with community control as a possible senten ce under Ohio’s felony sentencing law. See Cleveland Bar Assn. v. Cleary , 93 Ohio St.3d 191, 192 (2001), fn. 1. Notwithstanding, the Court subsequently indicated that it saw “no meaningf ul distinction between community control and probation for purposes of reviewing the reasonabl eness of their conditions [,]” and determined that the analysis set forth in Jones remains applicable “[b]ecause community control is the functional equivalent of probation[.]” Talty II at ¶ 16.4

interests of doing justice, rehabilitating the offender, and ensuring the offender’s good behavior * * *.”). {¶6} After citing the statutory requireme nts for probation conditions, the Jones Court set forth a three-part test for determining whether a condition meet s those requirements, providing that “courts should consider whethe r the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduc t which is criminal or reasonably related to future criminality and serves the statutory ends of probation.” Jones at 53. It also observed that “conditions cannot be overly broad so as to unnecessarily impinge upon the probationer’s liberty.” Id. at 52. {¶7} While the Jones Court did not address a community-control condition similar to the one at issue in this case, the Ohio Supreme Court’s subsequent decision in Talty II did, and applied its reasoning from Jones . Notably, Talty II involved an appeal from this Court wherein this Court held that a community-control condi tion that ordered the defendant to “make all

reasonable efforts to avoid con ceiving another child while under the supervision of the * * * Probation Department” satisfied the three-part Jones test, and that it was not overbroad. State v. Talty , 9th Dist. Medina No. 02CA0087-M, 2003-Ohio-3161, ¶ 4, 31-34 (“ Talty I ”). {¶8} The Ohio Supreme Court in Talty II reversed this Court on the basis that the community-control condition was, “by any objective measure, overb road” because it “restrict[ed the defendant’s] right to procreate without provi ding a mechanism by which the prohibition can

be lifted if the relevant conduct should change.” Talty II at ¶ 20. In reaching this conclusion, the Court distinguished the underlying facts from t hose in a Wisconsin Supreme Court case wherein it upheld an anti-procreation proba tion condition that included a sti pulation that the court would

terminate the condition if the de fendant could prove that he c ould support his other children. Id.5

at ¶ 18, 19, citing State v. Oakley , 245 Wis.2d 447 (2001). The Talty II Court specifically “d[id] not determine whether a mechanism that allowed the antiprocreation condition to be lifted would

have rendered the condition valid under Jones ,” but stated that “suc h a mechanism would have been, at the very least, an easy alternative that would have better accommodated [the defendant’s] procreation rights at de minimis costs to the legitimate probationary interests of rehabilitation and avoiding future criminality.” Id. at ¶ 21. Aside from determining that the community-control condition was overbroad, the Talty II Court implicitly adopted the remainder of this Court’s analysis of Jones from Talty I

. See, e.g. , Talty II at ¶ 21 (acknowledging that the anti-procreation condition satisfied “the legitima te probationary interests of rehabilitation and avoiding future criminality”). {¶9} Now before this Court is a community-cont rol condition of the type contemplated

under Talty II , but which the Talty II Court specifically declined to decide: an anti-procreation condition that contains a lifting mechanism. Despite asserting that the community-control condition failed to satisfy the Jones test, Mr. Chapman’s merit brief provides little support for his argument, the gist of which is that, because he was not convicted of a crime involving procreation, the community-control condition is not reasonably related to rehabilitation. But the Talty II Court, through its review and analysis of Talty I , has implicitly rejected this argument, holding only that the community-control condition failed under Jones because it was overbroad. Talty II at ¶ 20. As an intermediate court of appe als, we are bound by the Ohio Supreme Court’s precedent. State v. Dickens , 9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25 (“An appellate court ha s no authority to overrule decisions of the Ohio Supreme Court but is bound to follow them.”). We, therefore, reject Mr. Chapman’s argument to the extent he challenges the community-control condition under the three-part Jones test.6

{¶10} Our analysis under Jones , however, does not end there. As previously noted,

Jones also stands for the proposition that a comm unity-control condition cannot be overbroad. Talty II at ¶ 16. Mr. Chapman, however, has not deve loped an argument with respect to the overbroad nature of the community-control condition. See App.R. 16(A)(7). Indeed, his merit brief acknowledges that the Talty II Court held that the community-control condition at issue (i.e., “make all reasonable efforts to avoid con ceiving another child while under the supervision of the * * * Probation Depar tment”) was overbroad because it did not contain a lifting mechanism, and further acknowledges that the co mmunity-control condition in this case does, in fact, contain a lifting mechanism. While the Talty II Court purposefully did not decide whether such a lifting mechanism would survive under Jones , Mr. Chapman has presented no argument as to why it would not. Instead, he argues that the lifting mechanism contemplates acts that are

out of his control or are tied to his financial well-being, such th at there is no real, meaningful lifting mechanism. To the extent that an argument exists regarding the overbroad nature of the community-control condition – and, thus, its failure to satisfy Jones as contemplated under Talty

II

– it is not this Court’s duty to root it out. Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998) (“If an argument exists that can support [an] assignment of error, it is not th is [C]ourt’s duty to root it out.”). {¶11} In light of the arguments presented and the Ohio Supreme Court’s analysis in Talty II , we find that Mr. Chapman’s non-constituti onal challenge to the community-control condition is not dispositive. We, therefore, are compelled to address his challenge to the constitutionality of the community-control condition. Smith , 106 Ohio St.3d 309, 2005-Ohio5125, at ¶ 54 (“[C]ourts decide constitutional i ssues only when absolutely necessary.”)7

{¶12} Mr. Chapman argues that the community -control condition directly impacts a fundamental right (i.e., his right to procreate) and should be reviewed under a strict-scrutiny

standard of review. The trial court’s judgment entry, however, does not address Mr. Chapman’s constitutional argument. Instea d, it provides an analysis under Jones only. Nor does the record contain any written decision with respect to the briefs the parties filed prior to sentencing, which

addressed the trial court’s authority to impose an anti-proc reation condition. “Because this Court acts as a reviewing court, it should not consider fo r the first time on appeal issues that the trial

court did not decide.” Allen v. Bennett , 9th Dist. Summit Nos. 23570, 23573, 23576, 2007-Ohio5411, ¶ 21. Doing so would result in this Court “usurping the role of the trial court and exceeding its authority on appeal.” Id . We, therefore, reverse and remand the matter for the trial court to consider Mr. Chapman’s constitutional argument in the first instance. Mr. Chapman’s assignment of error is sust ained on that basis.

III. {¶13} Mr. Chapman’s assignment of error is su stained. The judgment of the Lorain County Court of Common Pleas is reversed, and th e cause is remanded for further proceedings. Judgment reversed, and cause remanded.

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. 27.8

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 Appellee.

JENNIFER HENSAL FOR THE COURT

CARR, J. TEODOSIO, J. CONCUR.

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