State v. Johnson , 2021 Ohio 3380 ( 2021 )

[Cite as State v. Johnson, 2021-Ohio-3380.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-20-037
Appellee Trial Court No. 19CR1155
v.
Stephan L. Johnson DECISION AND JUDGMENT
Appellant Decided: September 24, 2021
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Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.
John F. Potts, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from an November 2, 2020 judgment of the Sandusky
County Court of Common Pleas, sentencing appellant to a six-year term of incarceration
on one count of trafficking in heroin, in violation of R.C. 2925.03(A), a felony of the
second degree, and a two-year term of incarceration on one count of having weapons
while under a disability, in violation of R.C. 2923.13(A), a felony of the third degree,
with the sentences ordered to run concurrently. For the reasons set forth below, this court
affirms the judgment of the trial court.
{¶ 2} Appellant, Stephan Johnson, sets forth the following two assignments of
error:
I. IT CONSTITUTED ERROR TO DENY WAIVER OF THE
MANDATORY $7500.00 FINE WITHOUT HOLDING A HEARING.
II. IT IS CONTRARY TO LAW TO SENTENCE DEFENDANT
TO SIX (6) YEARS OF MANDATORY INCARCERATION.
{¶ 3} The following undisputed facts are relevant to this appeal. On December 12,
2019, appellant, who possesses a criminal history of predominantly drug and alcohol
related offenses, was stopped by the Fremont Police Department. Appellant was driving
a motor vehicle while under a license suspension and did not own the vehicle that he was
driving.
{¶ 4} During the traffic stop in this case, approximately $1,223.00 in cash was
recovered from appellant’s person. A search warrant was then obtained for appellant’s
residence. In the course of the ensuing search, 60 grams of heroin and a 9mm handgun
equipped with a silencer were recovered, reflective of appellant’s unlawful activities.
2.
{¶ 5} The presentence investigation report prepared in the course of this matter
encompasses considerable factual information regarding appellant relevant to our
disposition of this case.
{¶ 6} On March 20, 2020, appellant was indicted on one count of heroin
possession, in violation of R.C. 2925.11(A), a felony of the first degree, one count of
trafficking in heroin, in violation of R.C. 2925.03(A), a felony of the first degree, and one
count of possession of weapons while under disability, in violation of R.C. 2923.13(A), a
felony of the third degree.
{¶ 7} On September 8, 2020, pursuant to a negotiated plea agreement, appellant
entered guilty pleas to one count of the lesser included offense of trafficking in heroin, in
violation of R.C. 2925.03(A), as reduced to a felony of the second degree, and to the
count of possession of weapons while under disability, in violation of R.C. 2923.13(A), a
felony of the third degree. In exchange, the remaining first degree felony possession of
heroin offense was dismissed. The case was referred by the trial court for preparation of
a presentence investigation report.
{¶ 8} On October 27, 2020, the case proceeded to sentencing. The trial court
reviewed and considered the record of evidence, including the presentence investigation
report, and heard from all parties.
{¶ 9} Appellee conveyed to the court, “The Defendant has prior felony offenses,
including prior offenses of possession. It mentions a heroin conviction in 2016. He’s
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previously been on community control from this Court and had a number of probation
violations.”
{¶ 10} Counsel for appellant stated, in relevant part, “[H]e’s not going to get many
more breaks. He does have a significant record * * * [W]e always defer to the Court to
fashion an appropriate sentence. I would ask the Court to run the two charges
concurrent.”
{¶ 11} Appellant directly stated to the court on his own behalf, “I know I made
mistakes. I know I’m in trouble for it right now * * * You know, I worked four years
prior to this. I was still working when I got in trouble [for these offenses].” (Emphasis
added).
{¶ 12} Ultimately, the trial court determined that, “The Court will also find that
Defendant has not been rehabilitated * * * and has not responded favorably to sanctions
previously imposed for criminal convictions.” (Emphasis added).
{¶ 13} The court further noted that, “[D]efendant seems to deny that there is an
issue when he enters substance treatment, and the Court will also find that Defendant
does not show any genuine remorse for the offense.”
{¶ 14} The trial court sentenced appellant to a mandatory six-year term of
incarceration on the trafficking in heroin conviction, ordered to be served concurrently, as
requested by appellant, to the two-year term of incarceration imposed on the
accompanying possession of weapons while under disability conviction.
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{¶ 15} The trial court next considered appellant’s motion for a full waiver of the
mandatory statutory fine based upon claimed indigency, along with the supporting
affidavit.
{¶ 16} The trial court concluded, “The Court has considered the memorandum,
information and Affidavit * * * [T]he Court is going to deny that the Defendant be
relieved of that mandatory fine obligation.”
{¶ 17} The trial court determined that the evidence showed that appellant is 31-
years-old, educated, in good health, on no medications, and not under any medical
treatment, “[T]he Court sees no reason why the defendant should be found indigent.”
{¶ 18} R.C. 2929.18(A)(3)(b) authorizes the trial court to impose a maximum fine
of $15,000.00 for a second degree felony conviction such as the one in this case. The
trial court imposed a fine of $7,500.00, half of the statutorily authorized amount.
{¶ 19} This appeal ensued.
{¶ 20} In the first assignment of error, appellant argues that the trial court erred in
denying appellant’s motion for a full fine waiver, “[W]ithout holding a [separate] hearing
to determine whether defendant was indigent.” We do not concur.
{¶ 21} In support of the first assignment, appellant expressly asserts that the
imposition of the fine should be considered improper given that appellant was
unemployed at the time of sentencing, provides financial support for “[A]t least five (5)
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minor children, and the $1,223.00 in cash recovered from appellant’s person was subject
to forfeiture.” We are not convinced.
{¶ 22} R.C. 2929.19(B)(5) establishes that, “Before imposing a financial sanction
under section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised
Code, the court shall consider the offender’s present and future ability to pay the amount
of the sanction or fine.”
{¶ 23} Appellant’s dispute of the fine in this case is subject to the abuse of
discretion standard of review on appeal. State v. Barker, 2d Dist. Montgomery No.
26061, 2014-Ohio-3946, ¶ 16.
{¶ 24} Demonstration of an abuse of discretion mandates more than showing a
mere error in law or judgment. Rather, it must be shown that the disputed trial court
action was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 25} We are guided in our consideration of this matter by the considerations that
were undertaken by the Second District in the analogous case of State v. Davenport, 85
N.E.3d 443, 2017-Ohio-688.
{¶ 26} In Davenport, the trial court similarly imposed a $7,500.00 mandatory
statutory pursuant to R.C. 2929.18 following appellant’s conviction for one count of
possession of heroin, in violation of R.C. 2925.11(A), a felony of the second degree.
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{¶ 27} Comparable to the instant case, in Davenport it was likewise argued on
appeal that the fine was improper both due to not conducting a separate ability to pay
hearing and indigency claims.
{¶ 28} With respect to conducting a separate hearing, as held at ¶ 31 in Davenport,
“A hearing on a defendant’s ability to pay is not required. Nor is a court required to
make findings. All that is required is that the trial court consider a defendant’s ability to
pay * * * [A] trial court is not required to expressly state that it considered [a
defendant’s] ability to pay a fine * * * [A] reviewing court may infer that a trial court
considered the issue.” (Emphasis added).
{¶ 29} As regards claims of indigency, as a basis to dispute the R.C. 2929.18
statutory fine imposed, the Davenport court clearly held at ¶ 33-35, “[B]eing indigent
and being unable to pay are not the same * * * [A] finding of indigence for purposes of
appointed counsel does not shield the defendant from paying a fine * * * This is because
the ability to pay a fine over time is not equivalent to the ability to pay legal counsel a
retainer fee at the onset of criminal proceedings.” (Emphasis added).
{¶ 30} The Davenport court further noted in regards to indigency considerations,
at ¶ 34, that trial courts can properly consider the issue, “[B]y reviewing a pre-sentence
investigation report that contains enough pertinent information.” (Emphasis added).
{¶ 31} As applied to the instant case, the record of evidence, including the detailed
presentence report, reflects that appellant is able-bodied, is a high school graduate, has
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taken coursework in the skilled trades at Terra Community College, is literate, in good
health, and will be approximately 37-years-old upon release.
{¶ 32} The presentence report further showed that appellant possessed gainful,
full-time employment at the time of his arrest in this case and reflected appellant’s ability
to obtain gainful employment with multiple employers throughout Ohio.
{¶ 33} In State v. Nobles, 6th Dist. Lucas No. L-15-1273, 2016-Ohio-7529, this
court concluded at ¶ 11, under comparable considerations, “The record reflects that
appellant will have served the sentence and be released from prison when appellant is
approximately 39 years of age. The record reflects appellant to be able-bodied, attended
school through the 12th grade, is literate, and possesses no known issues which would
prohibit appellant’s ability to obtain employment upon release.”
{¶ 34} Similarly, this court held in State v. Neal, 6th Dist. Lucas No. L-14-1276,
¶17, “Appellant is twenty-one years old, healthy, and possesses a successful employment
history * * * There is nothing demonstrating an inability of appellant to be gainfully
reemployed upon release.”
{¶ 35} Accordingly, upon an application of the above-discussed applicable statutes
and precedent to the facts and circumstances of this of this case, the record encompasses
ample evidence, as clearly reflected in the presentence investigation report, of appellant’s
ability to pay the R.C. 2929.18 felony fine.
8.
{¶ 36} We find that the imposition of the statutory fine was not unreasonable,
arbitrary, or unconscionable. Appellant’s first assignment of error is found not well-
taken.
{¶ 37} In the second assignment of error, appellant summarily concludes that the
six-year term of incarceration imposed in this case was contrary to law. We do not
concur.
{¶ 38} In support of the second assignment, appellant emphasizes that the six-year
term of incarceration imposed was greater than the five-year term of incarceration
recommended by the prosecution at sentencing. Appellant then concludes that, “The
court below gave no significant consideration to defendant’s need for [drug and alcohol]
rehabilitation.” (Emphasis added). The record of evidence runs counter to appellant’s
position.
{¶ 39} R.C. 2953.08(G)(2) governs appellate felony sentence review. As held by
this court in State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶11,
“R.C. 2953.08(G)(2) establishes that an appellate court may increase, reduce, modify, or
vacate and remand a disputed sentence if it clearly and convincingly finds either * * *
that the record does not support the sentencing court’s [relevant statutory] findings * * *
[or] that the sentence is otherwise contrary to law.”
{¶ 40} Appellant maintains that the sentence was unlawful through the unilateral
claim that the trial court did not properly consider appellant’s need for substance
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rehabilitation. Appellant’s position appears rooted in the notion that appellant should
have been placed in substance treatment, in lieu of incarceration, as the trial court has
done with appellant on prior occasions.
{¶ 41} R.C. 2929.14 (2)(a) establishes that for second degree felony convictions,
such as appellant’s conviction for heroin trafficking in this case, “[T]he prison term shall
be an indefinite term with the stated minimum term selected by the court of two, three,
four, five, six, seven, or eight years.”
{¶ 42} Thus, the record clearly shows that appellant’s non-maximum, six-year
prison term fell well within the permissible statutory range. The record further reflects
that the trial court made no relevant statutory findings without supporting clear and
convincing evidence from the record.
{¶ 43} With respect to appellant’s generic claim that the sentence should be
construed as unlawful based upon the alleged failure of the trial court to adequately
consider appellant’s “need for rehabilitation,” we find that the record of the proceedings
from below clearly refutes this position.
{¶ 44} Contrary to appellant’s characterization, the record reflects that the trial
court explicitly considered, focused upon, and commented upon, appellant’s substance
use issues in connection to crafting appellant’s sentence.
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{¶ 45} The trial court concluded that the record of evidence demonstrated that
appellant, “[H]as not been rehabilitated * * * and has not responded favorably to
sanctions previously imposed for criminal convictions.”
{¶ 46} The record reflects that the trial court clearly considered appellant’s need
for rehabilitation.
{¶ 47} More importantly, as held in State v. Jones, 163 Ohio St.3d 242, 169
N.E.3d 649, 2020-Ohio-6729, ¶ 42, “Nothing in R.C. 2953.08(G)(2) permits an appellate
court to independently weigh the evidence in the record and substitute its judgment for
that of the trial court concerning the sentence that best reflects compliance with R.C.
2929.11 and 2929.12.” Accord State v. Pyle, 6th Dist. Sandusky No. S-20-023, 2021-
Ohio-1075, ¶ 21.
{¶ 48} Thus, pursuant to Jones, even assuming arguendo that an appellate court
does not concur with a disputed trial court sentence, in circumstances such as those
presented in this case, it nevertheless would fail to warrant granting the assignment and
remanding the case for resentencing.
{¶ 49} On consideration whereof, we find that appellant has failed to demonstrate
that the felony sentence in this case was contrary to law. As such, we find appellant’s
second assignment of error not well-taken.
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{¶ 50} Wherefore, the judgment of the Sandusky County Court of Common Pleas
is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, P.J.
____________________________
Myron C. Duhart, 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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