State v. Seals , 2018 Ohio 2028 ( 2018 )

[Cite as State v. Seals, 2018-Ohio-2028.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1177
Appellee Trial Court No. CR0201302196
v.
Sequoia Seals DECISION AND JUDGMENT
Appellant Decided: May 25, 2018
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Julia R. Bates, Lucas County Prosecuting Attorney, and
Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Sequoia Seals, appeals the June 19, 2017 judgment of
the Lucas County Court of Common Pleas which, following appellant’s admission to a
community control violation, sentenced him to three years of imprisonment. For the
reasons that follow, we affirm, in part, and reverse, in part.
{¶ 2} This case stems from a burglary on July 12, 2013, in Toledo, Lucas County,
Ohio. Appellant was indicted on July 22, 2013, on one count of burglary, R.C.
2911.12(A)(2), (D), a second-degree felony. On September 3, 2013, appellant entered a
guilty plea to a third-degree felony count of burglary, R.C 2911.12(A)(3), (D). The
sentencing hearing was held on September 17, 2013, and appellant was placed on three
years of community control with various requirements including drug and alcohol
treatment and random drug testing. He was notified that if he violated the terms of
community control he would be sentenced to 36 months of imprisonment. The judgment
entry was journalized on September 18, 2013.
{¶ 3} On February 10, 2014, appellant was found to have violated the terms of
community control; however, community control was continued. In April 2015,
appellant violated the terms of community control and it was extended to September 17,
2017. In July 2016, appellant violated the terms of community control; the matter was
transferred to drug court in October 2016, and community control was extended to
September 17, 2018.
{¶ 4} On June 15, 2017, appellant was unsuccessfully terminated from drug court
and sentenced to his original, 36-month prison term. The judgment entry was journalized
on June 19, 2017, and this appeal followed.
{¶ 5} Appellant’s appointed counsel has submitted a request to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967). Counsel for appellant asserts that after a conscientious examination of the record,
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he has concluded that the trial court did not commit any error prejudicial to appellant.
Counsel must also furnish his client with a copy of the brief and request to withdraw and
allow the client sufficient time to raise any matters that he chooses. Id. Once these
requirements have been satisfied, the appellate court must then conduct a full
examination of the proceedings held below to determine if the appeal is indeed frivolous.
If the appellate court determines that the appeal is frivolous, it may grant counsel’s
request to withdraw and dismiss the appeal without violating constitutional requirements
or may proceed to a decision on the merits if state law so requires. Id. Appellant has not
filed a brief.
{¶ 6} Consistent with Anders, counsel for appellant has asserted two potential
assignments of error:
First Potential Assignment of Error: Appellant’s sentence should be
vacated based on the trial court’s failure to comply with R.C. 2929.11 and
2929.12.
Second Potential Assignment of Error: The trial court committed
prejudicial error by imposing costs without consideration of appellant’s
ability to pay.
{¶ 7} Appellant’s counsel’s first potential assignment of error is that his sentence
is contrary to law because the trial court failed to comply with R.C. 2929.11 and 2929.12,
which serve as “an overarching guide for trial judges to consider in fashioning an
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appropriate sentence.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶ 17.
{¶ 8} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, this
court recognized that the abuse of discretion standard in Kalish, though no longer
controlling, can still provide guidance for determining whether a felony sentence is
clearly and convincingly contrary to law. Id. at ¶ 15. Kalish determined that a sentence
was not clearly and convincingly contrary to law where the trial court had considered the
R.C. 2929.11 purposes and principles of sentencing, had considered the R.C. 2929.12
seriousness and recidivism factors, had properly applied postrelease control, and had
imposed a sentence within the statutory range. Id.; Kalish at ¶ 18.
{¶ 9} In sentencing appellant, the trial court stated at the June 15, 2017 sentencing
hearing that it considered the record in the case, the presentence investigation report, the
oral statement provided to the court, and the victim statement. The court then stated that
it considered the principles and purposes of felony sentencing and found that appellant
could continue on community control. As additional terms, he ordered that appellant
serve 180 days in the Correctional Treatment Facility and then serve 90 days on
electronic monitoring. Appellant then stated that he did not wish to enter the treatment
facility and would rather be sent to jail.
{¶ 10} The court again indicated that it considered the purposes of sentencing and
imposed the maximum sentence of 36 months of imprisonment. Appellant was also
given postrelease control and appeal notifications. The court’s June 19, 2017 judgment
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entry reflected these findings and specifically referenced R.C. 2929.11 and 2929.12.
Further, as set forth above, at appellant’s initial, 2013 sentencing hearing he was
informed that if he violated the terms of community control he would be sentenced to 36-
months of imprisonment. Appellant indicated that he understood.
{¶ 11} Based on the foregoing, we find that the trial court complied with the
felony sentencing statutes in sentencing appellant to a maximum, 36-month sentence.
Accordingly, appellant’s counsel’s first potential assignment of error is not well-taken.
{¶ 12} In appellant’s counsel’s second potential assignment of error, he contends
that the trial court erred by failing to make specific findings regarding appellant’s ability
to pay costs of prosecution, appointed counsel, or confinement.
{¶ 13} With regard to the costs of prosecution, R.C. 2947.23(A)(1)(a) provides
that the trial court shall include in every sentencing judgment the costs of prosecution
without consideration of whether the defendant has the ability to pay such costs. State v.
Rohda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 13. A defendant has the
ability to file a motion for waiver of payment of the court costs; the trial court has the
discretion to waive payment of court costs. R.C. 2949.092; State v. Joseph, 125 Ohio
St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11. R.C. 2947.23(C) provides that the trial
court retains jurisdiction to address the waiver, suspension, or modification of the
payment of the court costs. Thus, at the time of sentencing appellant need not have
moved for waiver of the payment of costs. State v. Farnese, 4th Dist. Washington No.
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15CA11, 2015-Ohio-3533, ¶ 12-16. Accordingly, we find that the trial court did not err
by imposing the costs of prosecution.
{¶ 14} Unlike the costs of prosecution, the imposition of the costs of confinement
and appointed counsel are premised on a finding of a defendant’s present or future ability
to pay. State v. Johnson, 6th Dist. Lucas No. L-16-1165, 2017-Ohio-8206, ¶ 24, citing
R.C. 2929.18(A)(5)(1)(ii) and 2941.51(D). Such a finding need not be made at a formal
hearing, but the record must contain some evidence that the court considered the
defendant’s ability to pay. Id., citing State v. Maloy, 6th Dist. Lucas No. L-10-1350,
2011-Ohio-6919, ¶ 13.
{¶ 15} The record here is devoid of evidence showing that the trial court
considered appellant’s ability to pay or made a finding that appellant has, or reasonably
will have, the ability to pay before imposing the costs of confinement and appointed
counsel. At the sentencing hearing, the court merely stated that appellant was “ordered to
pay the applicable costs of th[e] prosecution.”
{¶ 16} Absent such evidence, the record does not support the trial court’s
statement in the sentencing judgment entry that “[d]efendant found to have, or reasonably
may be expected to have, the means to pay all or part of the applicable costs of
supervision, confinement, assigned counsel, and prosecution * * *.” Thus, we find that
the imposition of the costs of confinement and appointed counsel are contrary to law.
Accordingly, we find appellant’s counsel’s second potential assignment of error well-
taken, and we vacate that portion of the judgment entry.
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{¶ 17} Based on the foregoing, the judgment of the Lucas County Court of
Common Pleas is affirmed, in part, and reversed, in part. The portion of the court’s
June 19, 2017 judgment entry requiring appellant to pay the costs of his confinement and
appointed counsel is vacated. The judgment of conviction is affirmed in all other
respects. Appointed counsel’s unopposed motion to withdraw is granted. Appellant and
appellee are ordered to equally pay the costs of this appeal pursuant to App.R. 24(A). The
clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed, in part,
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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