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State v. Hubbell1/30/2004
sequent to the portion of the entry which addressed the consequences of any failure by Hubbell to comply with the community control conditions. In light of the structure of the written judgment entry, we can glean no intent by the trial court to render the payment of restitution a condition of his community control.
. Hubbell was indicted for nonsupport of dependents, pursuant to R.C. 2919.21(B), from September 1, 2000, through August 31, 2002. Although Hubbell's arrearage may stem from his failure to pay child support over several years (and we note that the sentencing hearing transcript includes references to at least one prior criminal nonsupport case against Hubbell), the indictment at issue covers only a two year period of time. Thus, the economic loss suffered by the victim for purposes of this indictment is the unpaid child support payments between September 1, 2000, and August 31, 2002. To the extent that the trial court ordered Hubbell to pay restitution which accrued outside the time period included in the indictment as a part of his sentence, that order was erroneous.
. Although the written judgment entry does not indicate that the payment of the total arrearage was ordered as a condition of community control, we note that the court's oral pronouncement of sentence during the sentencing hearing suggests that the payment of Hubbell's arrearage was intended to be one of those conditions. The trial court ordered Hubbell to "pay child support or arrearage or comply with the seek work law."
. Accordingly, the amount of the trial court's restitution order will be vacated, and the case will be remanded for either recalculation of the amount of restitution, if the trial court intended the payment of restitution to be a part of his sentence, or for resentencing, if the trial court intended for Hubbell's restitution to be a condition of his community control. Put differently, upon remand, the trial court should either (1) reduce the amount of restitution ordered to that amount which represents arrearage for the period between September 1, 2000, and August 31, 2002, or (2) resentence Hubbell and specifically make payment of the entire amount of arrearage a condition of Hubbell's community control sanctions.
. Hubbell has asserted that an evidentiary hearing is required in order to make an accurate and impartial determination of the amount of his arrearage. We agree. Regardless of whether the trial court elects to resentence Hubbell, i.e. make payment of the total arrearage a condition of community control, or, instead, to reduce the amount of restitution ordered to that amount representing the arrearage for the two year period stated in the indictment, we believe that an evidentiary hearing is necessary to assure that the arrearage (whether the total amount or for the two year period) is properly calculated. We further believe that the trial court in this proceeding is the appropriate forum for conducting such a hearing.
. Hubbell's assignment of error is sustained. The amount of the ordered restitution will be vacated, and the case will be remanded either for reduction of the amount of restitution or for resentencing. The judgment is affirmed in all other respects.
FAIN, P.J. and BROGAN, J., concur.
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