[Cite as State v. Dobson,
2024-Ohio-4617.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 2024CA0019-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SHAWN DOBSON COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 19CR0445
DECISION AND JOURNAL ENTRY
Dated: September 23, 2024
SUTTON, Presiding Judge.
{¶1} Plaintiff-Appellant the State of Ohio appeals the judgment of the Medina County
Court of Common Pleas. For the reasons that follow, this Court affirms.
I.
Relevant Background Information
{¶2} On May 1, 2019, the Medina County grand jury indicted Mr. Dobson on three
counts of nonsupport of dependents from April 1, 2013 through March 31, 2019, in violation of
R.C. 2919.21(B), felonies of the fifth degree. Count I of the indictment covered the time period
from Apil 1, 2013, through March 31, 2015. Count II of the indictment covered the time period
from April 1, 2015, through March 31, 2017. Count III of the indictment covered the time period
from April 1, 2017, through March 31, 2019. Mr. Dobson was arraigned in 2024 and pleaded not
guilty to these charges.
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{¶3} Mr. Dobson filed a motion to dismiss the indictment arguing at the time of the
indictment, he did not owe a “current duty of child support[,]” and only owed child support
arrearages. In his motion, Mr. Dobson argued: (1) the indictment was barred by the six-year statute
of limitations in R.C. 2901.13(A)(1) because the alleged criminal conduct between 2013 and 2018
occurred more than six-years prior to Mr. Dobson’s arraignment; (2) the February 11, 2019
amendment to R.C. 2919.21(B) applies prospectively and not retroactively; and (3) R.C. 2919.21
indicates when the failure to pay child support does not meet the requisite 26 week time frame, it
constitutes a misdemeanor not a felony. The State opposed the motion arguing Mr. Dobson’s
alleged non-payment of child support is a continuing course of conduct and the indictment was
filed before the six-year statute of limitations would have run under R.C. 2901.13(A). 1 The State
further argued the February 11, 2019 amendment to R.C. 2919.21(B) applies retroactively.
{¶4} The trial court determined the February 11, 2019 amendment to R.C. 2919.21(B)
must be applied prospectively, stating:
If the retroactivity of a statute is not expressly stated in the plain terms, the
presumption in favor of prospective application controls. Moreover, the General
Assembly is presumed to know that it must include expressly retroactive language
to create that effect, and it has done so in the past. It is undisputed that the amended
version of R.C. 2919.21 does not expressly mention retroactivity. The General
Assembly’s failure to include such language means that this version of the statute
can be applied only prospectively.
(Internal citations omitted.) After making this determination, the trial court addressed each count
in the indictment as follows:
This [c]ourt finds, based upon the uncontroverted factual assertion of [Mr.] Dobson,
that [Mr.] Dobson did not have a current support obligation past July 2, 2014. The
indictment spans April 1, 2013, through March 31, 2019. From April 1, 2013 to
July 2, 2014, [Mr.] Dobson had a current support obligation that was not arrears
only. Therefore, the State of Ohio could prove at trial a felony violation of the
1
Mr. Dobson was incarcerated from July 3, 2012 to May 20, 2014, and his duty to pay
current child support terminated in 2014.
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statute that criminalized failure to pay current child support orders. Count I of the
indictment is not dismissed on that basis for the time period of April 1, 2013, to
July 2, 2014, but the remaining time period in Count I is dismissed.
...
As Ohio law did not criminalize failure to pay child support arrearages only orders
until February 11, 2019, Count II is dismissed in its entirety. Count III of the
[i]ndictment is not dismissed on that basis for the time period of February 11, 2019
to March 31, 2019, but the remaining time period in Count III is dismissed.
The trial court further determined the remaining time period in Count III, from February 11, 2019
to March 31, 2019, did not span a total of 26 weeks. Therefore, it constituted a misdemeanor and
not a felony. Pursuant to R.C. 2901.13(A)(1)(b), the trial court dismissed this portion of Count III
because it is barred by the two-year statute of limitations.
{¶5} The State appealed raising one assignment of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN AMENDING THE TIME PERIOD OF
COUNT I AND DISMISSING COUNTS II AND III OF THE INDICTMENT.
{¶6} In its sole assignment of error, the State argues the trial court erred in amending the
time period in Count I of the indictment and dismissing Counts II and III of the indictment.
Specifically, the State argues R.C. 2919.21(B)(1)(b) must be applied retroactively to the effective
date of the February 11, 2019 amendment to the statute.
{¶7} Pursuant to R.C. 1.48, “[a] statute is presumed to be prospective in its operation
unless expressly made retrospective.” “We do not address the question of constitutional
retroactivity unless and until we determine that the General Assembly expressly made the statute
retroactive.” Hyle v. Porter, 2008-Ohio-542, ¶ 9. “In order to overcome the presumption that a
statute applies prospectively, a statute must ‘clearly proclaim’ its retroactive application.” Id. at
¶ 10, quoting State v. Consilio,
2007-Ohio-4163, paragraph one of the syllabus. “Text that supports
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a mere inference of retroactivity is not sufficient to satisfy this standard; we cannot infer
retroactivity from suggestive language.” Id. (Emphasis in original.) “We therefore begin our
retroactivity analysis with the question of statutory interpretation.”
Hyle at ¶ 10.
{¶8} “Our paramount concern in examining a statute is the legislature’s intent in enacting
the statute.” Gabbard v. Madison Local School Dist. Bd. of Educ., 2021-Ohio-2067, ¶ 13. “To
discern that intent, we first consider the statutory language, reading all words and phrases in
context and in accordance with the rules of grammar and common usage.”
Id. “We give effect to
the words the General Assembly has chosen, and we may neither add to nor delete from the
statutory language.”
Id. “When the statutory language is unambiguous, we apply it as written
without resorting to rules of statutory interpretation or considerations of public policy.”
Id., citing
Zumwalde v. Madeira & Indian Hill Joint Fire Dist.,
2011-Ohio-1603, ¶ 23-24, 26. “In other
words, our review ‘starts and stops’ with the unambiguous statutory language.”
Id., quoting
Johnson v. Montgomery,
2017-Ohio-7445, ¶ 15.
{¶9} R.C. 2919.21, as amended on February 11, 2019, states in relevant part:
(B)(1) No person shall abandon, or fail to provide support as established by a court
order to, another person whom, by court order or decree, the person:
(a) Is legally obligated to support; or
(b) Was legally obligated to support, and an amount for support:
(i) Was due and owing prior to the date the person’s duty to pay current support
terminated; and
(ii) Remains unpaid.
(Emphasis added.) The 2019 amendment added section (B)(1)(b) to the statute. Prior to the 2019
amendment, R.C. 2919.21(B) stated, “[n]o person shall abandon, or fail to provide support as
established by a court order to, another person whom, by court order or decree, the person is legally
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obligated to support.” The General Assembly amended the statute to address the Supreme Court
of Ohio’s decision in State v. Pittman, 2016-Ohio-8314, which held “a person is not subject to
prosecution under R.C. 2919.21(B) for the nonpayment of a court's order to pay a child-support
arrearage when the person has no current obligation of support because the child who is the subject
of the order is emancipated.” Id. at ¶ 1.
{¶10} Here, while we acknowledge R.C. 2919.21(B) is written both in the present and
past tense regarding a person’s child support obligation, the General Assembly did not clearly
proclaim the statute retroactive by indicating it applied prior to the effective date of February 11,
2019. Indeed, the General Assembly could have expressly stated the amendment to the statute
applies retroactively to the effective date. However, here, while the mere use of the past tense
allows a person to be charged for a past due child support arrearage, which was due and owing
prior to the date the person’s current support terminated and remains unpaid, it does not clearly
proclaim the intent for this amendment to be effective prior to February 11, 2019. See Hyle at ¶
16 (“our finding that the General Assembly specifically made R.C. 2950.09 retroactive was based
in part on an express provision making the statute applicable to anyone who “was convicted of or
pleaded guilty to a sexually oriented offense prior to the effective date of this section, if the person
was not sentenced for the offense on or after” that date.”). (Emphasis added.) As to this matter,
the General Assembly remains able to speak in the future if it so chooses.
III.
{¶11} For the foregoing reasons, the State’s sole assignment of error is overruled. The
judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
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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 Medina, 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 Appellant.
BETTY SUTTON
FOR THE COURT
CARR, J.
HENSAL, J.
CONCUR.
APPEARANCES:
S. FORREST THOMPSON, Prosecuting Attorney, and STEFANIE H. ZARANEC, Assistant
Prosecuting Attorney, for Appellant.
SHERONDA D. DOBSON, Attorney at Law, for Appellee.
