State v. Morgan , 2018 Ohio 1834 ( 2018 )


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  • [Cite as State v. Morgan, 
    2018-Ohio-1834
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 105682
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    CHRISTIAN N. MORGAN
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-16-608584-A
    BEFORE: Keough, J., McCormack, P.J., and Jones, J.
    RELEASED AND JOURNALIZED: May 10, 2018
    ATTORNEY FOR APPELLANT
    Victoria Bader
    Assistant State Public Defender
    250 East Broad Street, Suite 1400
    Columbus, Ohio 43215
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    By: Scott C. Zarzycki
    Assistant County Prosecutor
    The Justice Center, 8th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    KATHLEEN ANN KEOUGH, J.:
    {¶1} Defendant-appellant, Christian Morgan, appeals his sentence following a
    guilty plea. For the reasons that follow, we affirm.
    {¶2} In March 2016, Morgan, age 17, was charged in a juvenile court complaint,
    which alleged that he committed two second-degree felony offenses of felonious assault,
    if committed as an adult. It was alleged that during an altercation at a laser tag facility,
    Morgan assaulted the victim who suffered severe and serious physical harm. Following
    a hearing, the juvenile court found Morgan not amenable to juvenile court treatment and
    transferred the case to the general division of the common pleas court.
    {¶3} In August 2016, Morgan was indicted for one count of felonious assault in
    violation of R.C. 2903.11(A)(1); he subsequently pleaded guilty to attempted felonious
    assault. At sentencing, the trial court considered a presentence investigation report, the
    victim’s impact statement, and mitigation statements by Morgan and his attorney. The
    court sentenced Morgan to three years in prison and ordered the stipulated restitution
    amount of $7,670.93.
    {¶4} Morgan was granted leave to file a delayed appeal, and he now raises three
    assignments of error, which will be addressed together where appropriate.
    I. Restitution
    {¶5} In his first assignment of error, Morgan contends that the trial court erred
    when it imposed a financial sanction without considering his present and future ability to
    pay the sanction, in violation of R.C. 2929.19(B)(5). He claims in his third assignment
    of error that he was denied effective assistance of trial counsel because his attorney failed
    to object when the financial sanction was imposed without any consideration of present
    and future ability to pay.
    {¶6} R.C. 2929.18(A)(1) permits a trial court, as part of a sentence, to order
    restitution to the victim of the offender’s crime in an amount based on the victim’s
    economic loss. Before imposing a financial sanction, the trial court must consider “the
    offender’s present and future ability to pay the amount of the sanction or fine.” R.C.
    2929.19(B)(5).
    {¶7} However, the statute does not require the trial court to consider any specific
    factors in making this determination, and it does not require the trial court to expressly
    state that it considered a defendant’s ability to pay. State v. Aniton, 8th Dist. Cuyahoga
    No. 102440, 
    2015-Ohio-4080
    , ¶ 19, citing State v. Tate, 2d Dist. Montgomery No. 25386,
    
    2013-Ohio-5167
    , ¶ 52.
    “The record should, however, contain ‘evidence that the trial court
    considered the offender’s present and future ability to pay before imposing
    the sanction of restitution.’ The trial court may comply with this
    obligation ‘by considering a presentence-investigation report, which
    includes information about the defendant’s age, health, education, and work
    history.’ ‘The court’s consideration * * * may be inferred from the record
    under appropriate circumstances.’”
    (Citations omitted.) Aniton at 
    id.,
     quoting Tate at 
    id.
    {¶8} In this case, the record demonstrates that the trial court considered Morgan’s
    present and future ability to pay the restitution order. Although the trial court did not
    specifically state on the record the exact words that it had considered Morgan’s present
    and future ability to pay restitution, the court had the benefit of a presentence
    investigation report, which included Morgan’s age and employment history. Absent any
    evidence to the contrary, we can infer that the trial court considered Morgan’s ability to
    pay because the relevant information was contained in the presentence report. See Tate
    at ¶ 52-54 (although trial court did not state it reviewed the presentence report, absent any
    evidence to the contrary, the court’s consideration may be inferred from the record).
    Additionally, defense counsel referenced the presentence investigation report during
    mitigation and highlighted Morgan’s employment as a justification for the imposition of
    community control sanctions.
    {¶9} Moreover, Morgan stipulated to the restitution order at sentencing. (Tr. 16.)
    When the parties stipulate to the amount of restitution, this “serve[s] as a sufficient basis
    to support the trial court’s order and precludes defendant from complaining about it now
    on appeal.” State v. Hody, 8th Dist. Cuyahoga No. 94328, 
    2010-Ohio-6020
    , ¶ 25, citing
    State v. Sancho, 8th Dist. Cuyahoga No. 91903, 
    2009-Ohio-5478
    . Accordingly, we find
    no error by the trial court.
    {¶10} We also find that Morgan was not deprived of effective assistance of
    counsel by counsel failing to object to the restitution order. To establish ineffective
    assistance of counsel, a defendant must demonstrate that (1) counsel’s performance fell
    below an objective standard of reasonable representation and (2) he was prejudiced by
    that performance. Strickland v. Washington, 
    466 U.S. 668
    , 687-688, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984). Prejudice is established when the defendant demonstrates “a
    reasonable probability that, but for counsel’s unprofessional errors, the result of the
    proceeding would have been different.         A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.” Strickland at 694.
    {¶11} The failure to prove either prong of the Strickland two-part test makes it
    unnecessary for a court to consider the other prong. State v. Madrigal, 
    87 Ohio St.3d 378
    , 388-389, 
    721 N.E.2d 52
     (2000), citing Strickland at 697. Finding that the record
    demonstrates that the trial court considered Morgan’s present and future ability to pay and
    Morgan stipulated to the restitution amount, we cannot say that Morgan was prejudiced
    by his counsel’s failure to object. Moreover, he makes no argument on appeal that his
    counsel’s stipulation regarding restitution was in error or made without his consent.
    {¶12} Accordingly, Morgan’s first and third assignments of error are overruled.
    II. Sentence
    {¶13} Morgan contends in his second assignment of error that the trial court erred
    when it sentenced him to three years in prison for attempted felonious assault because the
    sentence is not supported by the record, in violation of R.C. 2953.08(G). Specifically, he
    claims that the trial court failed to consider mitigating factors, including his age, genuine
    remorse, and no prior ODYS commitment, before imposing the maximum prison sentence
    for a third-degree felony.
    {¶14} Appellate review of felony sentences is governed by R.C. 2953.08, which
    provides that when reviewing felony sentences, this court may increase, reduce, modify a
    sentence, or vacate and remand for resentencing if we clearly and convincingly find that
    the record does not support the sentencing court’s statutory findings, if applicable, or the
    sentence is contrary to law. R.C. 2953.08(G)(2); State v. Marcum, 
    146 Ohio St.3d 516
    ,
    
    2016-Ohio-1002
    , 
    59 N.E.3d 123
    , ¶ 22. A sentence is contrary to law if (1) the sentence
    falls outside the statutory range for the particular degree of offense, or (2) the trial court
    failed to consider the purposes and principles of felony sentencing set forth in R.C.
    2929.11 and the sentencing factors in R.C. 2929.12.            State v. Maddox, 8th Dist.
    Cuyahoga No. 105140, 
    2017-Ohio-8061
    , ¶ 31, citing State v. Hinton, 8th Dist. Cuyahoga
    No. 102710, 
    2015-Ohio-4907
    .
    {¶15} In this case, a three-year prison sentence falls within the statutory range for a
    third-degree felony. Additionally, the trial court found, although no longer required to
    do so before imposing the maximum sentence, that Morgan committed the worst form of
    the offense. (Tr. 27.) Finally, the trial court stated in its sentencing journal entry that it
    considered the required statutory factors and “that prison is consistent with the purpose of
    R.C. 2929.11.” This is sufficient to satisfy the court’s obligation under R.C. 2953.08.
    State v. Clayton, 8th Dist. Cuyahoga No. 99700, 
    2014-Ohio-112
    , ¶ 9. Accordingly,
    Morgan’s prison sentence is not contrary to law.
    {¶16} Although Morgan contends that his young age, no prior commitments to
    ODYS, and genuine remorse were sufficient mitigating factors to either impose
    community control sanctions or a lesser prison term, Morgan’s three-year prison sentence
    is supported by the record. The trial court found that Morgan committed the worst form
    of the offense after the victim explained to the court how he was traumatically affected,
    both physically and emotionally. The record includes photographs and the victim’s
    medical records demonstrating the extent of his injuries, including a broken nose,
    concussion, loss of his two front teeth, and broken facial bones. Additionally, the record
    reflects the trial court’s consideration of protecting the public when it agreed with the
    victim’s statement that “his worst fear is that it ends up happening to someone else.” (Tr.
    24-25.)   Finally, although Morgan had no prior commitments to ODYS, the record
    reflects that this case was not his first criminal offense, and subsequent to the instant case,
    another delinquency complaint involving a stolen vehicle was filed against him.
    {¶17} Accordingly, Morgan’s sentence is within the statutory range and the record
    reflects that the trial court considered the purposes and principles of felony sentencing set
    forth in R.C. 2929.11 and 2929.12. Furthermore, under our review of the facts and
    circumstances of the case, we find that the record supports the sentence. Morgan’s
    second assignment of error is overruled.
    {¶18} Judgment affirmed.
    It is ordered that appellee recover from appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution. The defendant’s conviction having
    been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
    for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    KATHLEEN ANN KEOUGH, JUDGE
    TIM McCORMACK, P.J., and
    LARRY A. JONES, SR., J., CONCUR