[Cite as In re D.S.S. , 2020-Ohio-5388.]

IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

IN THE MATTER OF: : O P I N I O N D.S.S. : CASE NO. 2020-P-0042 :

:
Appeal from the Porta g e Count y Court of Common Pleas, Juvenile Division, Case No. 2017 JCA 00356. Jud g ment: Reversed.

Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder and Brandon J. Wheeler, Assistant Prosecutors, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee, State of Ohio )

. Jason A. Whitacre, Flynn, Keith & Flynn, 214 South Water Street, Kent, OH 44240 (For Appellant, Brian Pavelko). Leonard J. Breiding, II, 4825 Almond Wa y , Ravenna, OH 44266 ( Guardian ad litem )

.

CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, Brian Pavelko, appeals the decision of the Portage C ounty Court of Common Pleas, Juvenile Division, holding him in contem pt of court. For the reasons stated herein, the judgment of the lower court is rever sed. {¶2} The underlying case involves a delinquent complaint of rape fil ed against a minor, D.S.S. A motion was filed to allow D.S.S. and the min or victim, M.H., halfbrothers, to have contact with each other. In preparation for a hearing on the motion,2 the guardian ad litem (“GAL”) for M.H. served subpoenas to thre e employees of Children’s Advantage, where M.H. was believed to have received counseling services: Krysta Gattozzi, Kelly Szydlowski, and Brian Pavelko. However, at the direction of Children’s Advantage’s executive management, none of the three employees appeared at the February 2020 hearing. Mr. Pavelko sent a letter from C hildren’s Advantage to the GAL notifying them that D.S.S. was not a client, that they would not appear, and that they had tried to contact the GAL without success. This letter was dated five days before the hearing but not received until after the hearing. N o motion to quash or limit was filed in regard to these subpoenas. {¶3} Upon their failure to appear, the trial court issued an order t o show cause against each employee. The arguments and evidence from Mr. Pav elko’s hearing was incorporated in full into the hearings of Ms. Gattozzi and Ms. Szydlowski. At each hearing, the court found each employee in contempt. Mr. Pavelk o was sentenced to 15 days in the Portage County jail and assessed a $250.00 fine and court costs; the jail sentence and $150.00 of the fine were suspended on the conditio n that he attend the next hearing scheduled for March 2, 2020 and that he obey all s ubpoenas issued to him in Portage County for one year. It was subsequently determined Mr. Pavelko did not have information pertinent to the underlying case, and the cour t excused him from the March 2, 2020 hearing. He appealed his sentence and filed a st ay of execution, which the lower court granted. {¶4} On appeal, Mr. Pavelko assigns two errors for our review. The f irst states: {¶5} The trial court abused its discretion in finding Appellant in c riminal contempt of court.3 {¶6} Findings of contempt by the trial court are reviewed for abuse of discretion. Matter of G.M., 11th Dist. Trumbull No. 2016-T-0092, 2017-Ohio-8145, ¶18. An abuse of discretion is the trial court’s “‘failure to exerci se sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004). {¶7} R.C. 2705.02 states in pertinent part: {¶8} A person guilty of any of the following acts may be punished as for a contempt: {¶9} * * * {¶10} (C) A failure to obey a subpoena duly served, or a refusal to b e sworn or to answer as a witness, when lawfully required[.] {¶11} “’Contempt is defined in general terms as disobedience of a cou rt order.’” In re Hards , 175 Ohio App.3d 168, 2008-Ohio-630, ¶62 (11th Dist.), quoting State ex rel. Corn v. Russo , 90 Ohio St.3d 551, 554 (2001). “‘It is conduct which brings the administration of justice into disrespect, or which tends to em barrass, impede or obstruct a court in the performance of its functions. The purpo se of contempt proceedings is to secure the dignity of the courts and the unin terrupted and unimpeded administration of justice.’” Hards, supra, citing Windham Bank v. Tomaszczyk , 27 Ohio St.2d 55 (1971), paragraph one of the syllabus. {¶12} Contempt may be either indirect or direct. The Ohio Supreme Co urt has defined direct contempt as misbehavior “committed in the presen ce of or so near the court as to obstruct the due and orderly administration of just ice, and punishment therefor may be imposed summarily without the filing of charges or the issuance of process.” In re Lands , 146 Ohio St. 589, 595 (1946). Indirect contempt, on the othe r hand, is “committed outside the presence of the court but which also tends to obstruct4 the due and orderly administration of justice.” Id. See also, In re Purola , 73 Ohio App.3d 306, 310 (3rd Dist.1991). Here, it is apparent and with out dispute that this case involved indirect contempt. {¶13} Additionally, contempt may be either civil or criminal in natur e. “‘If sanctions are primarily designed to benefit the complainant thr ough remedial or coercive means, then the contempt proceeding is civil. * * * Of ten, civil contempt is characterized by conditional sanctions, i.e., the contemnor is imprisoned until he obeys the court order. * * * Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence or fine. * * * Its sanctions a re punitive in nature, designed to vindicate the authority of the court.’” Id . at 311, quoting Denovchek v. Bd. of Trumbull Cty. Commrs. , 36 Ohio St.3d 14, 16 (1988). Accord, Russo, supra

. {¶14} “‘Any sanction imposed for civil contempt must afford a contemn or the right to purge himself of the contempt.’ * * * The punishment f or criminal contempt, by contrast, ‘is “punishment for the completed act of disobedience ” and usually consists of fines and/or an unconditional period of incarceration.’” Cleveland v. Goodman , 8th Dist. Cuyahoga No. 108120, 2020-Ohio-2713, ¶30, quoting Camp-Out, Inc. v. Adkins , 6th Dist. Wood No. WD-06-057, 2007-Ohio-3946, ¶21. See also, Purola, supra. {¶15} In distinguishing between civil and criminal contempt, “the cou rts have most often considered the character and purpose of the contempt sanctions.” Hards,
supra, at ¶63. “While both types of contempt contain an element of pu nishment, courts distinguish criminal and civil contempt not on the basis of pun ishment, but rather, by the character and purpose of the punishment.” Brown v. Executive 200, Inc. , 64 Ohio St.2d 250, 253 (1980).5 {¶16} Here, the imposition of 15 days in jail and $100.00 of the fine were suspended on the condition that Mr. Pavelko attend the next hea ring scheduled for March 2, 2020 and that he obey all subpoenas issued to him in P ortage County for the next year. However, the remaining $100.00 fine of the sanction was not contingent on Mr. Pavelko’s compliance or noncompliance and does not appear f rom the record to be compensation for loss or damages to the court or any other part y. Indeed, the court expressly noted that it had the power to impose attorney fees a nd that it would not. “A sanction for civil contempt must allow the contemnor to purge h imself of the contempt.” Cleveland v. Ramsey , 56 Ohio App.3d 108, 110 (8th Dist.1988), citing Tucker v. Tucker , 10 Ohio App.3d 251 (10th Dist.1983). Thus, it appears that the court intended this sanction to be punitive and we find the sanction to be criminal in nature. {¶17} “‘“[M]any of the significant constitutional safeguards required in criminal trials are also present in criminal contempt proceedings.”’” State v. Frazier , 4th Dist. Meigs No. 16CA15, 2017-Ohio-7221, ¶15, quoting Brown, supra, at 252, quoting State v. Kilbane, 61 Ohio St.2d 201 (1980). This includes the right to due process. Id.; Segovia v. Likens , 179 Ohio App.3d 256, 2008-Ohio-5896, ¶25 (10th Dist.). “‘Due process “requires that one charged with contempt of court be ad vised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and h ave a chance to testify and call other witnesses in his behalf, either by way of defens e or explanation.”’” Frazier, supra , at ¶16, quoting Courtney v. Courtney , 16 Ohio App.3d 329, 332 (3d Dist.1984), quoting In re Oliver , 333 U.S. 257, 275 (1948).6 {¶18} “[T]he standard of proof required in criminal contempt proceedi ngs is proof of guilt beyond a reasonable doubt and a contemnor cannot be gi ven a criminal contempt sanction unless proven guilty beyond a reasonable doub t.” Brown, supra

. Moreover, “in cases of criminal, indirect contempt, it must be shown that the alleged contemnor intended to defy the court.” Midland Steel Prods. Co. v. U.A.W. Local 486 , 61 Ohio St.3d 121, 127 (1991), citing Rowe v. Standard Drug Co. , 132 Ohio St. 629, 646 (1937). See also State v. Urich, 9th Dist. Medina No. 18CA0078-M, 2019-Ohio3138, ¶6

. “‘In an effort to ascertain an alleged contemnor’s intent, th e court must consider the totality of the circumstances.’” Weisgarber v. Weisgarber , 5th Dist. Stark No. 2015CA00158, 2016-Ohio-676, ¶10, quoting In re West, 5th Dist. Knox. No. 14CA22, 2015-Ohio-1501, ¶19. “‘An appellate court, when review ing a trial court’s finding of indirect criminal contempt, must determine whether s ufficient evidence existed for the trial court to reasonably conclude beyond a reasonable doubt that the contemnor purposely, willfully, or intentionally violated a prior court o rder.’” Weisgarber, supra, quoting West , supra

. {¶19} Here, however, the trial court made no finding of guilt beyond a reasonable doubt and did not address the element of intent. No testimony or evidence was presented to show that Mr. Pavelko acted intentionally; ind eed, Mr. Pavelko consistently argued that he did not intend to defy the court. Accordingly, the trial court erred in finding him guilty of indirect criminal contempt of co urt. See Maynard v. Elliott , 9th Dist. Lorain No. 02CA008067, 2002-Ohio-5260.7 {¶20} As we find merit to Mr. Pavelko’s first assignment of error, hi s second assignment of error asserting the alternative theory of civil c ontempt of court need not be addressed. {¶21} In light of the foregoing, the judgment of the Portage County C ourt of Common Pleas, Juvenile Division, is reversed.

TIMOTHY P. CANNON, P.J., MATT LYNCH, J.,

concur.