State v. Charles H. Lizanich, 94-LW-5225
| Decision Date | 22 March 1994 |
| Docket Number | 94-LW-5225,93AP-1087 |
| Parties | State of Ohio, Plaintiff-Appellee v. Charles H. Lizanich, Defendant-Appellant |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Michael Miller, Prosecuting Attorney, and Steven L. Taylor, for appellee.
David B. Tyack, for appellant.
This is an appeal by defendant, Charles H. Lizanich, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas. Upon appeal, defendant presents two assignments of error:
On July 28, 1992, defendant was indicted on one count of nonsupport of his minor children in violation of R.C 2919.21. The indictment alleged that defendant had abandoned or failed to provide adequate support to his children from June 3, 1986 to July 27, 1992. The indictment further alleged in pertinent part that defendant had "failed to provide such support for a total accumulated period of twenty-six (26) weeks out of one hundred four (104) consecutive weeks."
Defendant initially entered a plea of not guilty. The matter was scheduled for trial on January 7, 1993. The record indicates that defendant appeared before the court on that date, at which time he made an oral motion to dismiss the indictment on the ground that he could not be convicted of a felony under R.C. 2919.21 unless he had previously been convicted of nonsupport or if there had been a court finding that he had failed to provide support for his children for twenty-six out of one hundred four consecutive weeks. Defendant intended that because there had been no such court finding made before the grand jury met to return the indictment as a fourth degree felony, he could be, at most guilty of a first degree misdemeanor under R.C. 2919.21
Defendant cited State v. Messer (1992), 62 Ohio Misc.2d 232, a case from the Wood County Common Pleas Court, in support of his contention that there must be a prior court finding of nonsupport in order to elevate nonsupport under R.C. 2919.21 from a first degree misdemeanor to a fourth degree felony.
In response, the prosecutor cited State v. Sanders (May 1, 1992), Wood App. No. 91WD109, unreported, in which the Wood County Court of Appeals held that the enhancement language in R.C. 2919.21 did not require that there be a prior court finding of nonsupport for twenty-six out of one hundred four consecutive weeks in order to charge the indictment. Instead, that court found R.C. 2919.21(E) simply to be a further specification for the trier of fact to determine in order to enhance the charge from a first degree misdemeanor to a fourth degree felony.
The trial court overruled defendant's motion, finding that Sanders effectively overruled Messer. The trial court further stated that the issue of whether defendant had failed to support his children for twenty-six out of one hundred four consecutive weeks would be submitted to the jury.
By entry dated June 2, 1993, defendant withdrew his not guilty plea and entered a plea of no contest. Defendant appeared before the trial court for sentencing on July 8, 1993 and, by entry dated July 13, 1993, the court imposed a sentence of eighteen months incarceration, with defendant to receive zero days jail time credit. The court suspended the sentence and placed defendant on probation for five years upon the following conditions:
"*** [1] That defendant abide by the rules and regulations of the Probation Department; [2] pay court costs herein; [3] obtain second job until arrears are caught up; [4] probation to set weekly payments; [5] any missed payments will result in conversion to work release or weekends in jail; [6] attend Consumer Credit Counseling to arrange finances; [7] Restitution Ordered in the amount of $10,910.03 and any additions."
Defendant has timely appealed his conviction and sentence. The statute at issue in this appeal, R.C. 2919.21, provides in pertinent part:
R.C. 2919.21 further provides:
***"
By his first assignment of error, defendant argues that the felony enhancement language of R.C. 2919.21(E) necessitates a finding that there exist a prior court determination of nonsupport in order to trigger the enhancement section. We find defendant's contention to be without merit.
Defendant cites Messer, supra, in support of his contention that the phrase "there has been a court finding" was intended to mandate that there must be a prior determination by a domestic relations court of a defendant's failure to support in order to enhance the penalty for nonsupport from a first degree misdemeanor to a fourth degree felony. However, as the trial court correctly noted, Messer has been effectively overruled by the holding in Sanders. As a result, Messer holds little precedential value in resolving this issue. While we are aware that Sanders is an unreported case and is, therefore, not binding upon this court, we agree with its determination that R.C. 2919.21(E) does not require a prior court determination of nonsupport in order to trigger the penalty enhancement section, but that the "court finding" language it refers to is an additional fact to be determined by the trier of fact which, if found, would enhance the offense. Furthermore, the Delaware County Court of Appeals recently followed and applied the holding of Sanders to a case on facts similar to those presented in the case at bar. State v. Bale (Dec. 7, 1993), Delaware App. No. 93CAA01001, unreported.
We find that the plain meaning of R.C. 2919.21(E) supports the conclusions of both Sanders and Bale for three reasons. First, had the General Assembly intended the phrase "court finding" to mean prior court finding," it could easily have done so by inserting the word "prior" or previous" into this provision as it did for the "previously has been convicted of" provision. Inasmuch as the General Assembly chose not to include the word "prior" or previous" in the provision at issue, it must be presumed that it did not intend that there...
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