A judge should have considered before trial a man’s claim that he could not be criminally charged for failing to pay child support after his daughter graduated high school, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court ruled that under the procedural rules for criminal trials, a judge should have decided in a pretrial proceeding whether a revised law imposing prison time for missed child support payments applied to Michael Swazey. The trial judge had determined the case could not be decided without a trial. Swazey pleaded guilty to three counts of felony nonsupport of a dependent to avoid a trial.

Writing for the Court majority, Justice Jennifer Brunner stated that the trial court made an error in concluding that it could only base a pretrial decision to dismiss a case on the information provided in Swazey’s indictment. Under the Ohio Rules of Criminal Procedure, Swazey should have been able to introduce information at the pretrial stage demonstrating the nonsupport law did not apply to his situation and that he could not be charged with the crime, she wrote.

Today, the Court stated it expressed no opinion on whether Swazey is correct, but directed the Medina County Common Pleas Court to consider his argument at the pretrial stage. The Court also ruled that Swazey had a right to appeal his conviction even though he pleaded guilty to the charges because he is challenging the constitutionality of the law.

Justices Patrick F. Fischer, Michael P. Donnelly, and Melody Stewart joined Justice Brunner’s opinion.

In a dissenting opinion, Justice R. Patrick DeWine stated the majority opinion was incorrect for two independent reasons.  First, the trial judge correctly determined that information to be introduced at a trial was necessary to determine if the law applied to Swazey’s case. Second, Swazey had voluntarily entered a guilty plea to the offenses and, as part of the plea agreement, explicitly waived his right to appeal. 

Father Contested Child Support Law
In December 2019, Swazey was indicted on three counts of felony nonsupport in violation of R.C. 2919.21(B). The indictment alleged he failed to pay support to his child, identified as “K.S.,” during portions of three 104-week time periods. The first time period ran from November 2013 to October 2015. The others were between November 2015 and October 2019. Because Swazey had been previously convicted under R.C. 2919.21(B) of nonpayment, he faced felony charges for these three counts.

Swazey pleaded not guilty. In March 2020, he filed a motion to dismiss the indictment. Swazey produced a court order that indicated his child support obligation ended in June 2014 when K.S. turned 18 years old and graduated from high school. He argued that at the time of his indictment, he only owed arrearages, which are missed payments that were due when K.S. was a minor. He argued the law at the time when K.S. was still a minor did not permit felony criminal charges for nonpayment of child support arrearages.

Swazey maintained that R.C. 2919.21(B) was amended in 2019 to allow for felony convictions based on arrearages. He argued that the prior version of the law did not apply to his case because he only owed arrearages and that the amended law impacted only cases that occurred after the law took effect in 2019.

The trial court denied the motion. The judge explained that Swazey’s argument was based on facts and evidence that were not in the indictment. Swazey’s arguments were “better suited” for a motion seeking acquittal at trial after the prosecutor's office presented its case against him, the judge ruled.

Instead of going to trial, Swazey pleaded guilty to all three counts. He was sentenced to 180 days in jail and two years of community control. Swazey then appealed his conviction to the Ninth District Court of Appeals.

The Ninth District reversed the trial court’s decision. The court found that under Crim.R. 12(C), Swazey could raise any objection to his charge if the issue could be determined “without a trial on the general issue.” The Ninth District concluded that the trial court could decide if R.C. 2919.21(B) applied to Swazey without conducting a trial. And because Swazey claimed his rights under the Ohio and U.S. constitutions were violated, he could appeal his conviction even if he pleaded guilty to the charges.

The Medina County Prosecutor’s Office appealed the decision to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Procedural Rule
Justice Brunner explained that Swazey’s argument is similar to one the Court addressed in its 2012 State v. Palmer decision. In Palmer, a man convicted of sex offenses in the 1990s challenged his conviction for not complying with sex offender reporting requirements implemented in a 2007 law. The Supreme Court ruled the man could challenge an indictment as being defective when it alleges a violation of a statute that does not apply to the accused. Determining whether the law applies did not require a trial court to decide the “general issue” in the case and could be decided in pretrial proceedings, the Court ruled in Palmer.

The Court majority today ruled that under Crim.R. 12(C), the trial court is not limited to only the information in the indictment, but also can consider other information including briefs , affidavits, exhibits, and testimony.

“Holding otherwise would impose an arbitrary restriction on the trial court’s consideration of motions to dismiss that is not supported by Crim.R. 12. The rule as written promotes judicial economy and preserves the resources of courts, attorneys, and litigants by streamlining trials,” the opinion stated.

The Court explained that the “general issue” for the trial would determine if Swazey actually violated the law by not paying child support when he was ordered to do so. But Swazey’s argument is not based on whether he paid or not, but rather whether the law in its former or current state allowed him to be charged with felonies for not paying. A judge’s decision on how to apply the old law or whether it is unconstitutional to retroactively apply the new law does not require a trial, the Court concluded.

In general, a person who pleads guilty to criminal charges cannot appeal a sentence, the opinion stated. However, under U.S. Supreme Court decisions, the majority found there is a narrow exception when the person is not contesting that the law was violated, but rather that the law is unconstitutional when applied to the accused’s case. Swazey has the right to challenge the constitutionality of his conviction, the Court stated.

With the case being returned to the trial court, once the trial court considers Swazey’s argument, it can determine if any or all of the three charges should stand. If Swazey’s arguments fail, the trial court can reinstate his conviction, the Court concluded.

Charges Apply for Nonpayment, Dissent Maintained
In his dissent, Justice DeWine stated the majority left out key facts that demonstrate the trial court was correct to defer consideration of the merits of Swazey’s motion until the close of evidence. He explained that even if the court accepted Swazey’s arguments about retroactivity, Swazey could still be convicted if the prosecutor proved certain facts.

To fully consider Swazey’s arguments, the trial court correctly determined that evidence outside of the indictment needed to be considered, the dissent stated. Based on this, the dissent concluded that the trial court was correct in finding that it was premature to consider dismissing the case based on a pretrial motion.

Justice DeWine also explained that the majority’s opinion was wrong for a second reason:  Swazey relinquished his right to appeal through his entry of a guilty plea.  The dissent noted that under Ohio law a guilty plea constitutes “a complete admission of his guilt,” and that Swazey signed a written plea agreement waiving his right to appeal.  In addition, Swazey acknowledged to the trial judge in open court that he understood that he was giving up his right to appeal by pleading guilty. 

“In the context of this case, Swazey’s decision to plead guilty made sense. Because Swazey had previously been convicted of nonsupport, he faced up to 18 months in prison for each of the three counts in the indictment,” the dissent stated.

Swazey’s right to challenge his sentence was curtailed by his agreement to waive his right to appeal, the dissent stated. The dissent also noted that the narrow exception to the guilty plea waiver rule relied upon by the majority only applies to certain constitutional arguments that were not made in this case.  Justice DeWine commented that the majority’s decision to allow the reopening of trial proceedings in this case was unprecedented, explaining, “I have not found—and the majority does not identify—a single reported case” authorizing such a procedure. 

2022-0382. State v. Swazey, Slip Opinion No. 2023-Ohio-4627.

View oral argument video of this case.

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