[Cite as State v. Conte, 2018-Ohio-4688.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

RONALD D. CONTE 

 Appellant 

C.A. No. 28868 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR-2014-07-1903 

DECISION AND JOURNAL ENTRY 

Dated: November 21, 2018 

 

TEODOSIO, Judge. 

{¶1} Appellant, Ronald D. Conte, appeals from the judgment of the Summit County 

Court of Common Pleas revoking his community control and reimposing his suspended prison 

sentence. This Court reverses and remands. 

I. 

{¶2} Mr. Conte was convicted of multiple felonies resulting from the theft $558,100.02 

from various clients of his accounting business. He was sentenced to 59 months in prison, but 

was granted judicial release and placed on community control after serving 21 months of his 

sentence. One of the conditions of his community control was the payment of restitution to the 

victims in an amount of $2,500.00 per month. Upon Mr. Conte’s motion, the trial court judge 

reduced the amount to $1,500.00 per month. Mr. Conte made partial restitution payments each 

month, but he did not fully comply with his monthly restitution obligations and was 

consequently served with two separate community control violations. Following a community 
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control violation hearing, the trial court found Mr. Conte guilty of violating the terms and 

conditions of his community control, revoked his community control, and reimposed his 

suspended prison sentence. 

{¶3} Mr. Conte now appeals and raises two assignments of error for this Court’s 

review. 

{¶4} For ease of analysis, we will consolidate Mr. Conte’s assignments of error. 

II. 

ASSIGNMENT OF ERROR ONE 

SUBSEQUENT TO REVOCATION OF COMMUNITY CONTROL, THE 

TRIAL COURT’S REIMPOSITION OF APPELLANT’S SUSPENDED 

PRISON SENTENCE VIOLATED HIS CONSTITUTIONAL RIGHTS UNDER 

THE FEDERAL AND STATE CONSTITUTIONS. 

ASSIGNMENT OF ERROR TWO 

WITHOUT SUBSTANTIAL EVIDENCE OF WILLFULLNESS (SIC) BY 

APPELLANT IN UNDERPAYING HIS RESTITUTION, REVOKING HIS 

COMMUNITY CONTROL AND SENDING HIM BACK TO PRISON WAS 

AN ABUSE OF DISCRETION. 

{¶5} In his assignments of error, Mr. Conte argues that the trial court erred in revoking 

his community control and in reimposing his suspended prison sentence because he was making 

partial restitution payments and there was no evidence that he willfully failed to pay the full 

amount each month. We reverse and remand the matter back to the trial court so that it may hold 

a new hearing, conduct the appropriate analysis, and make the requisite findings. 

{¶6} We review a trial court’s decision to reimpose an offender’s suspended sentence 

following a community control violation for an abuse of discretion. State v. Harrah, 9th Dist. 

Summit No. 25449, 2011-Ohio-4065, ¶ 14. “The term ‘abuse of discretion’ connotes more than 

an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or 
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unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an 

abuse of discretion standard, a reviewing court is precluded from simply substituting its own 

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). 

{¶7} “When an offender violates the terms of his or her community control sanction, a 

trial court ‘may impose a longer time under the same sanction, may impose a more restrictive 

sanction, or may impose a prison term on the offender * * *.’” State v. Estright, 9th Dist. 

Summit No. 27598, 2016-Ohio-1194, ¶ 7, quoting R.C. 2929.19(B)(4). However, if the violation 

stems solely from the failure to pay restitution, 

a sentencing court must inquire into the reasons for the failure to pay. If the 

probationer willfully refused to pay or failed to make sufficient bona fide efforts 

legally to acquire the resources to pay, the court may revoke [community control] 

and sentence the defendant to imprisonment within the authorized range of its 

sentencing authority. If the probationer could not pay despite sufficient bona fide 

efforts to acquire the resources to do so, the court must consider alternate 

measures of punishment other than imprisonment. Only if alternate measures are 

not adequate to meet the State’s interests in punishment and deterrence may the 

court imprison a probationer who has made sufficient bona fide efforts to pay. 

{¶8} Id., quoting Bearden v. Georgia, 461 U.S. 660, 672 (1983). “[A] trial court 

cannot deprive a probationer of ‘conditional freedom’ when ‘through no fault of his own, he 

cannot pay [a] fine.’” Id., quoting State v. Sheesley, 9th Dist. Summit No. 27585, 2015-Ohio4565, ¶ 5, quoting Bearden at 672. “The Supreme Court of Ohio has defined ‘willfully’ as a 

descriptor which ‘implies an act done intentionally, designedly, knowingly, or purposely, 

without justifiable excuse.’” State v. Hand, 10th Dist. Franklin No. 15AP-916, 2016-Ohio-582, 

¶ 11, quoting State v. Earlenbaugh, 18 Ohio St.3d 19, 21 (1985), citing Black’s Law Dictionary, 

1434 (5th Ed.1979). 

{¶9} The evidence presented at Mr. Conte’s community control violation hearing 

established that he repeatedly failed to meet his full, monthly restitution obligation, but was 
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instead only making partial payments. The court heard testimony from two probation officers 

who acknowledged the partial payments and testified that they were unaware of any evidence 

that Mr. Conte’s noncompliance with the court’s restitution order was willful. Intensive 

probation supervisor Lisa Davis testified that when she discussed restitution payments with Mr. 

Conte, he explained that he “wasn’t able to pay the full amounts” because “the amounts were too 

much and [] he didn’t agree to that full amount, [but] his attorney made that amount up for him.” 

Mr. Conte filed a motion in April, which was granted by the trial court, and his monthly 

restitution obligation was reduced from $2,500.00 per month to $1,500.00 per month. Mr. 

Conte’s second probation officer, Lorri Dunn, testified that he continued making partial 

payments, including a nominal $25.00 payment in September despite the fact that he had become 

unemployed, but she stated that Mr. Conte never actually provided her with any letter of 

termination from his employer. Nonetheless, both probation officers recommended that Mr. 

Conte be continued on community control. 

{¶10} The State offered Mr. Conte’s own subpoenaed accounting records into evidence 

at the hearing to show that he was willfully noncompliant and should have been making higher 

restitution payments. The State argued that Mr. Conte was paying more than the minimum 

monthly amount required on his personal credit cards and was purchasing various personal items 

instead of paying more restitution. The documents showed, for example, that Mr. Conte made a 

$136.10 payment in June on his Capital One credit card in which the minimum monthly payment 

was purportedly only $33.00. Even after the court significantly reduced his monthly restitution 

obligation in April, Mr. Conte made various purchases of over $100.00 and $200.00, including a 

purchase from “Facebook CA” for $250.09. He also made a $50.00 purchase from Copper Chef 

and a $20.00 purchase from Dream Products. Mr. Conte’s records included some receipts to 
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show that he paid cash for some medications at Walmart and bought $156.92 worth of clothes at 

DXL Men’s Apparel. 

{¶11} Mr. Conte testified at the hearing as to his monthly income and expenses as well 

as the recent loss of his job. He testified that he paid restitution to the best of his ability and paid 

everything that he could. After the prosecutor cross-examined Mr. Conte, the trial court 

questioned him further regarding his accounting records, specifically as to why certain expenses 

inexplicably increased in recent months. Moreover, when he was initially obligated to pay 

$2,500.00 per month in restitution, Mr. Conte had listed $1,377.00 as social security income and 

$2,500.00 to $3,000.00 as monthly rental income. The court noted that those incomes were no 

longer included once Mr. Conte’s monthly restitution obligation was reduced in April. The court 

indicated concern that the substantial rental income from a building owned by Mr. Conte and his 

wife was now only being attributed to his wife. The court stated: 

It’s called marital assets. And if you want to take advantage of owning the 

building and having income coming in and you don’t want to include – – how do I 

know every month that he’s responsible only for the grocery bills? How 

convenient that every time his income goes up his expenses go up. Then when his 

income goes down his expenses go down. So obviously there’s a sharing of 

marital assets, and by the way it’s not willingness or willfulness not to pay, it’s 

ability to pay. And I’m allowed to consider every dime that comes through that 

house. So my question, because you think you’re smarter than everybody else * * 

* And by the way, you’re an admitted thief * * * You do this for a living. You do 

these spreadsheets for a living. I’m smart enough to look through it and figure it 

out. You and your wife own the building that Akron Income Tax is located in and 

they pay rent every month. 

The court surmised: “[A]t some point in time through his crafty accounting he decided what he 

was going to account for as his responsibility and what he was going to account for as his wife’s 

responsibility.” The court continued: 

Mr. Conte does what Mr. Conte wants to do when Mr. Conte wants to do it. And 

Mr. Conte controls the situation, Mr. Conte controls the numbers * * * I have no 

evidence other than his word, which I discount, that he is no longer employed. He 
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could be working for Akron Income Tax and being paid under the table. I don’t 

know. But I know this much: He’s got the ability to pay. He chose to navigate 

the numbers so that it looks like he can’t pay, and I’m done dealing with Mr. 

Conte’s total disregard for this Court’s previous rulings and my previous 

consideration. 

The court ultimately found that Mr. Conte had the ability to pay restitution, found him in 

violation of the terms and conditions of his community control, revoked his community control, 

and reimposed his suspended prison sentence. 

{¶12} Before reimposing Mr. Conte’s suspended prison sentence, the trial court was 

required to not only inquire into the reasons for his failure to make full restitution payments, but 

also find that he had “‘willfully refused to pay or [had] failed to make sufficient bona fide efforts 

legally to acquire the resources to pay’” restitution. Estright at ¶ 11, quoting Bearden at 672. 

However, the court made no such findings explicitly on the record and, instead, apparently 

rejected the Bearden standard by stating: “[A]nd by the way it’s not willingness or willfulness 

not to pay, it’s ability to pay.” 

{¶13} The dissent respectfully proposes an interpretation of the United States Supreme 

Court’s clear classification of probationers who have “willfully refused to pay” to include all 

non-paying probationers who have the ability to pay, regardless of willfulness. While we can 

appreciate the dissent’s theory of interpretation, we must nonetheless presume that the Supreme 

Court meant what it said when it explicitly required trial courts to determine if probationers 

“willfully” refused to pay, and we cautiously refrain from interpreting the high court’s use of the 

term “willfully” as mere surplusage. See Bearden at 672. Had the high court not intended for 

trial courts to determine the willfulness of a probationer’s actions, we surmise that it would have 

worded its holding in Bearden differently and refrained from repeated use of the word 

“willfully.” The Court could have simply held that trial courts are permitted to revoke probation 
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and incarcerate any probationers who have the ability to pay restitution, but fail to pay. The 

Court did not do so and, instead, determined that the failure to pay had to be willful, highlighting 

in its analysis the fact that the reasons for non-payment are of “critical importance” here. Id. at 

668. In applying the holding in Bearden as it is written, without the benefit of any additional 

clarification from the Supreme Court, we cannot presume to either ignore the Court’s use of the 

term “willfully” or excise it completely from the Court’s holding. 

{¶14} The trial court here did inquire as to Mr. Conte’s finances and noted what it 

labeled as a “convenient” fluctuation in Mr. Conte’s personal accounting of his income and 

expenses from month to month, specifically his failure to include substantial income amounts 

once his monthly restitution obligation was reduced by the court. It further stated that Mr. Conte 

shared marital assets with his wife, disregarded the court’s rulings, and “chose to navigate the 

numbers so that it looks like he can’t pay[,]” strongly implying that Mr. Conte used his skill set 

and background to engage in deceptive accounting practices while preparing his personal 

accounting records in an effort to avoid making full restitution payments. 

{¶15} Nevertheless, because the record does not reflect that the trial court made the 

requisite finding of willfulness pursuant to Bearden, and in light of the trial court’s incorrect 

assertion that “it’s not willingness or willfulness not to pay, it’s ability to pay[,]” we are 

constrained to remand this matter back to the trial court so that it may hold a new evidentiary 

hearing in accordance with Bearden. See Estright at ¶ 13. At that hearing, the court may order 

Mr. Conte to serve the remainder of his prison term only if it determines that he failed to pay 

restitution and either (1) he did so willfully or intentionally by not making a bona fide effort, or 

(2) despite his bona fide efforts, an alternative means of punishment would not be adequate to 

meet the State’s interests in punishment and deterrence. See id.; Bearden at 672. 
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{¶16} Accordingly, Mr. Conte’s first and second assignments of error are sustained. 

III. 

{¶17} Mr. Conte’s assignments of error are sustained. The judgment of the Summit 

County Court of Common Pleas is reversed and the cause is remanded for further proceedings 

consistent with this decision. 

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 Summit, State of Ohio, to carry this 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 document 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. 

 

 THOMAS A. TEODOSIO 

 FOR THE COURT 
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SCHAFER, P. J. 

CONCURS. 

HENSAL, J. 

DISSENTING. 

{¶18} I do not agree that the trial court failed to make the findings required to revoke 

Mr. Conte’s probation. In Bearden, the United States Supreme Court examined “whether the 

Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for 

failure to pay * * * restitution.” Bearden v. Georgia, 461 U.S. 660, 661 (1983). It determined 

that the answer depended on the reason that the defendant failed to pay, explaining that there is a 

difference between a defendant who “willfully refused to pay the fine or restitution when he has 

the means to pay,” one who “fail[ed] to make sufficient bona fide efforts to seek employment or 

borrow money in order to pay the fine or restitution[,]” and one who “made all reasonable efforts 

to pay the fine or restitution, and yet cannot do so through no fault of his own[.]” Id. at 668. It 

concluded that a court could revoke the probation of a defendant who fell into the first two 

categories, and sentence him to prison. Id. at 672. It concluded that a court could only revoke 

probation and imprison a Defendant that fell into the third category, however, “if alternative 

measures are not adequate to meet the State’s interests in punishment and deterrence[.]” Id. 

{¶19} Although the United States Supreme Court used the word “willfully” in 

describing the first category of defendants, that term must be interpreted in context with the rest 

of the Court’s discussion in Bearden, not by applying a definition used by the Ohio Supreme 

Court in interpreting Ohio law. The issue in Bearden was “whether a sentencing court can 

revoke a defendant’s probation for failure to pay the imposed fine and restitution, absent 

evidence and findings that the defendant was somehow responsible for the failure or that 

alternative forms of punishment were inadequate.” Id. at 665. The United States Supreme Court 
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discussed two of its prior decisions and noted that they stood for the proposition that, “if the 

State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it 

may not thereafter imprison a person solely because he lacked the resources to pay it.” Id. at 

667-668. It distinguished such situations, however, from “the situation where a defendant was at 

fault in failing to pay the fine.” Id. at 668. 

{¶20} In Bearden, the United States Supreme Court explained that, if a defendant “has 

the means to pay” but “willfully refused to pay[,]” “the State is perfectly justified in using 

imprisonment as a sanction to enforce collection.” Id. It also explained that, if the defendant 

failed “to make sufficient bona fide efforts to seek employment or borrow money in order to 

pay” it “may reflect an insufficient concern for paying the debt he owes to society for his crime.” 

Id. “In such a situation, the State is likewise justified in revoking probation and using 

imprisonment as an appropriate penalty for the offense.” Id. The Court, however, explained that 

it would be “fundamentally unfair to revoke probation automatically” if the defendant “has made 

all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his 

own[.]” Id. at 668. Under such situations, the defendant’s “lack of fault provides a ‘substantial 

reason which justifies or mitigates the violation and makes revocation inappropriate.’” 

(Alterations sic.) Id. at 669, quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). 

{¶21} Under Bearden, the only defendants who may avoid the revocation of probation 

for failure to pay restitution are those who “could not pay despite sufficient bona fide efforts to 

acquire the resources to do so[.]” Id. at 672. Even they may be imprisoned “if alternative 

measures are not adequate to meet the State’s interests in punishment and deterrence * * *.” Id. 

In this case, however, the trial court explicitly found that Mr. Conte had the ability to pay his 

restitution amount. Thus, he is not someone who “could not pay despite sufficient bona fide 
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efforts[.]” Id. The trial court, therefore, did not violate Mr. Conte’s constitutional rights or 

abuse its discretion when it revoked his community control. Accordingly, because I would 

affirm the judgment of the trial court, I respectfully dissent. 

APPEARANCES: 

BRIAN J. WILLIAMS, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee.