State v. Garrison , 2018 Ohio 463 ( 2018 )

[Cite as State v. Garrison, 2018-Ohio-463.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2017-0018
STEPHEN M. GARRISON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2016-0373
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 2, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX TONY A. CLYMER
Prosecuting Attorney 1420 Matthias Drive
Muskingum County, Ohio Columbus, Ohio 43224
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0018 2
Hoffman, J.
{¶1} Appellant Stephen M. Garrison appeals the judgment entered by the
Muskingum County Common Pleas Court convicting him of domestic violence (R.C.
2919.25(A)) and sentencing him to thirty-six months incarceration. Appellee is the state
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 8, 2016, Appellant and his girlfriend of twelve years, N.D.,
were watching The Walking Dead on television at their neighbor’s apartment. N.D.
walked back to the apartment she shared with Appellant and their two children to get
something to drink. Her friend Miranda Hardy came to the apartment and showed N.D.
a conversation on her phone between Hardy and Appellant in which they were sexting.
{¶3} N.D. confronted Appellant about the phone messages. Appellant denied it,
became upset, and spit in N.D.’s face. He grabbed the phone from N.D. and grabbed her
left arm, leaving a bruise. He shoved her against a wall and scratched her, and also threw
tea on her shirt. After Appellant spit in her face, N.D. grabbed Appellant’s genitalia and
punched him.
{¶4} Hardy witnessed Appellant grabbing N.D.’s arm and pushing her down the
hallway. N.D. asked Hardy to call 911.
{¶5} Deputy Brandon Hamilton responded to the 911 call. When he arrived on
the scene, N.D. was frantic and pacing. He noticed bruising on the inside of N.D.’s arm.
He took photographs of her arm, a scratch on her stomach, and the tea on her shirt.
Muskingum County, Case No. CT2017-0018 3
{¶6} Appellant was indicted by the Muskingum County Grand Jury with one count
of domestic violence with two prior offenses, a felony of the third degree. The case
proceeded to jury trial.
{¶7} Appellant testified at trial did not hit, push, or attack N.D. He denied spitting
in her face, claiming due to a partial plate, he cannot spit without his tooth coming out.
He testified he contacted Hardy about N.D.’s allegations Hardy and her boyfriend stole
something from N.D. and Appellant. When N.D. became upset with him for contacting
Hardy, he went to the neighbor’s apartment to stop the argument. Eventually he went
back to the apartment to get cigarette money from N.D. N.D. met him in the hallway,
where she called him a liar and a cheat, punched him in the throat, and grabbed his
genitals and squeezed.
{¶8} Appellant was convicted as charged and sentenced to thirty-six months
incarceration. From the March 9, 2017 judgment of conviction and sentence Appellant
prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ERRED BY ADMITTING STATE’S EXHIBITS
ONE THROUGH FIVE SINCE THE PHOTOGRAPHS DID NOT
ACCURATELY DEPICT THE CONTENTS IN VIOLATION OF
APPELLANT’S RIGHT TO A FAIR AND IMPARTIAL TRIAL.
II. THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN IT FAILED TO GIVE A JURY
INSTRUCTION AS TO THE LESSER-INCLUDED OFFENSE OF
Muskingum County, Case No. CT2017-0018 4
DISORDERLY CONDUCT OR A JURY INSTRUCTION OF SELF-
DEFENSE WHEN THE EVIDENCE AT TRIAL WARRANTED BOTH.
III. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND
FEDERAL CONSTITUTIONS.
IV. THE GUILTY VERDICT FOR DOMESTIC VIOLENCE AGAINST
APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND CONTRARY TO LAW.
V. THE TRIAL COURT PLAINLY ERRED IN IMPOSING THE
MAXIMUM SENTENCE FOR APPELLANT’S CONVICTION RENDERING
THE SENTENCE CONTRARY TO LAW.
VI. THE TRIAL COURT PLAINLY ERRED IN ASSESSING COURT
COSTS AGAINST APPELLANT WITHOUT INQUIRING ABOUT
APPELLANT’S PRESENT OR FUTURE ABILITY TO MAKE THE
PAYMENTS AND SINCE THE IMPOSITION OF COURT COSTS MAY
NOT BE IMPOSED UPON DEFENDANTS AS CRIMINALLY
ENFORCEABLE SANCTIONS BUT MUST BE PURSUED IN CIVIL
COLLECTION PROCEEDINGS.
I.
{¶9} Appellant argues the court erred in admitting the photographs of N.D. taken
at the scene by Deputy Brandon Hamilton because the testimony established they did not
accurately depict N.D.’s injuries.
Muskingum County, Case No. CT2017-0018 5
{¶10} Evid. R. 901(A) provides, “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent claims.” Accordingly,
a photograph is admissible in evidence if it is shown to be an accurate representation of
what or whom it purports to represent. State v. Hannah, 54 Ohio St.2d 84, 88, 374 N.E.2d
1359, 1362–63 (1978). “A duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original.” Evid. R.
1003.
{¶11} The photographs admitted into evidence were copies of the original
photographs taken by Deputy Hamilton. Dep. Hamilton initially testified the photographs
were a fair and accurate depiction of N.D. on the night in question. Tr. 193. However, he
later noted the photographs did not show the tea he observed on her shirt, and did not
depict the scratch. Tr. 194,195.
{¶12} On cross-examination, the deputy testified the copies were not as clear as
the photographs he took because they were missing the stains on her shirt and the
scratch on her stomach, and the bruise on her arm appeared darker in real life than on
the copy of the photograph. Tr. 204, 207. He testified the pictures were accurate, but
the quality was not good. Tr. 205. However, on further questioning, he testified the
photos were not an accurate depiction of what she looked like on the night in question.
Tr. 206. Finally, on redirect examination, he testified the photographs were not as clear
as what they should be. Tr. 219.
Muskingum County, Case No. CT2017-0018 6
{¶13} Appellant objected to admission of the photographs on the basis they were
not accurate. The court admitted the photographs, stating, “The accuracy will have to be
argued.” Tr. 237.
{¶14} Unless the defendant has been materially prejudiced by the improper
admission of evidence, an appellate court should not disturb the decision of the trial court.
State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240 (2002). Assuming
arguendo admission of the photographs was error, Appellant has not demonstrated
prejudice from their admission. The deputy testified the photographs did not accurately
depict the extent of her bruising, nor the existence of tea on her shirt and a scratch on her
stomach. Admission of photographs depicting less serious and fewer injuries than those
testified to by N.D. was not prejudicial to Appellant’s case, and Appellant has not
demonstrated prejudicial error.
{¶15} The first assignment of error is overruled.
II.
{¶16} In his second assignment of error, Appellant argues the trial court
committed plain error in failing to instruct the jury on the lesser-included offense of
disorderly conduct and the defense of self-defense.
{¶17} Appellant concedes he did not request an instruction on the lesser-included
offense of disorderly conduct or on self-defense. Failure to object before the jury retires,
absent plain error, constitutes waiver. State v. Williford, 49 Ohio St.3d 247, 551 N.E.2d
1279 (1990). The Ohio Supreme Court has recently clarified the standard of review for
plain error:
Muskingum County, Case No. CT2017-0018 7
Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain
errors or defects affecting substantial rights” notwithstanding an accused's
failure to meet his obligation to bring those errors to the attention of the trial
court. However, the accused bears the burden to demonstrate plain error
on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,
19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal
rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
Even if the error is obvious, it must have affected substantial rights,
and “[w]e have interpreted this aspect of the rule to mean that the trial
court's error must have affected the outcome of the trial.” Id. We recently
clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, that the accused is “required to demonstrate a reasonable probability
that the error resulted in prejudice—the same deferential standard for
reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. at ¶
22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–83, 124
S.Ct. 2333, 159 L.Ed.2d 157 (2004).
If the accused shows that the trial court committed plain error
affecting the outcome of the proceeding, an appellate court is not required
to correct it; we have “admonish[ed] courts to notice plain error ‘with the
utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759
Muskingum County, Case No. CT2017-0018 8
N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus.
State v. Thomas, 2017-Ohio-8011, ¶¶ 32-34.
{¶18} A trial court is required to instruct on a lesser-included offense only where
the evidence at trial would reasonably support both an acquittal on the crime charged and
a conviction upon the lesser-included offense. State v. Deanda, 136 Ohio St.3d 18, 2013–
Ohio–1722.
{¶19} Appellant argues he was entitled to an instruction on the lesser-included
offense of disorderly conduct as defined by R.C. 2917.11(A)(1), “No person shall
recklessly cause inconvenience, annoyance, or alarm to another by…[e]ngaging in
fighting, in threatening harm to persons or property, or in violent or turbulent behavior[.]”
He was convicted of domestic violence in violation of R.C. 2919.25(A), which provides,
“No person shall knowingly cause or attempt to cause physical harm to a family or
household member.”
{¶20} Appellant argues it is uncontroverted N.D. punched him in the throat and
grabbed his groin, which fits in the definition of fighting. However, he testified he did not
engage in fighting, and simply withstood her attack. Therefore, the evidence does not
reasonably support an acquittal of domestic violence and a conviction upon the lesser
included offense of domestic violence. Appellant has not demonstrated plain error in the
court’s failure to sua sponte instruct the jury on disorderly conduct.
{¶21} Appellant also argues the court committed plain error in failing to instruct
the jury on self-defense. In order to establish the affirmative defense of self-defense, the
Muskingum County, Case No. CT2017-0018 9
Appellant generally has to show three elements: (1) the defendant was not at fault in
creating the violent situation; (2) the defendant has a bona fide belief that he was in
imminent danger of death or great bodily harm and that his only means of escape was
the use of force; and (3) the defendant did not violate any duty to retreat. State v. Robbins,
58 Ohio St.2d 74, 388 N.E.2d 755 (1979).
{¶22} In State v. Perry, 5th Dist. Richland No. 02-CA-77, 2003-Ohio-6097, the
defendant argued the court erred in failing to instruct the jury on self-defense in his
domestic violence prosecution. However, he testified at trial he never hit her. We
accordingly found no error in refusing to give the self-defense instruction. Id. at ¶27.
Likewise, we find no plain error here in the court’s failure to instruct the jury on self-
defense as Appellant testified he did not touch N.D.
{¶23} The second assignment of error is overruled.
III.
{¶24} In his third assignment of error, Appellant argues his trial counsel was
ineffective.
{¶25} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989). In other words, appellant must show that counsel’s conduct so undermined
Muskingum County, Case No. CT2017-0018 10
the proper functioning of the adversarial process that the trial cannot be relied upon as
having produced a just result. Id.{¶26} Appellant first argues counsel was ineffective in failing to tell the jury during
voir dire or opening statement they must acquit if the State failed to prove any element of
the offense. The trial court instructed the jury, “The Defendant must be acquitted unless
the State produces evidence which convinces you beyond a reasonable doubt of every
essential element of the offense charged in the indictment.” Tr. 347. A jury is presumed
to follow the instructions given it by a trial judge. E.g., State v. Garner, 74 Ohio St.3d 49,
1995-Ohio-168, 656 N.E.2d 623. Therefore, Appellant has not demonstrated if counsel
had raised this issue to the jury during voir dire or opening statement, the result of the
proceeding would have been different.
{¶27} Appellant next argues counsel was ineffective in failing to follow up
regarding witness Phil Smith’s testimony he was confused as to how the victim would
have a bruise so quickly after the incident. Appellant argues instead of giving up after the
court sustained objections on the basis of foundation and speculation, counsel should
have attempted to lay a proper foundation regarding Smith’s knowledge of bruising. He
argues the error became more prejudicial when counsel failed to object to testimony from
Deputy Hamilton regarding his opinion the bruise appeared to be fresh. The record does
not demonstrate had counsel questioned Smith further, she would have been able to lay
a foundation for Smith to express an opinion the bruise did not appear fresh. Appellant
has not demonstrated prejudice.
{¶28} Appellant argues counsel failed to file a motion for appointment of a medical
expert to review the photographs. Appellant concedes we have no way of knowing if the
Muskingum County, Case No. CT2017-0018 11
opinion of an appointed medical expert would be favorable to him or prejudicial to him,
and therefore he has not demonstrated a reasonable probability of a change in the
outcome had counsel sought appointment of an expert.
{¶29} Next Appellant argues counsel erred in continuing to cross-examine Deputy
Hamilton regarding the accuracy of the photographs after eliciting testimony the pictures
did not accurately depict the injuries. He specifically argues the following question was
ineffective:
Q: Are you asking the jury to believe your testimony over what is
depicted in those photographs in your hand?
A: I would just like to see better quality photographs, is all I’m saying.
Tr. 208.
{¶30} The question followed counsel’s cross-examination of the officer concerning
whether he could recall independently what N.D.’s bruises looked like when he had
responded to about 150 calls after this incident. Appellant further argues counsel engaged
in unnecessary cross-examination of Deputy Hamilton regarding his experience with
bruising and his memory of the appearance of the scratch on her stomach. He argues
this allowed the jury to hear cumulative evidence which bolstered the State’s case.
{¶31} Trial counsel's decision to cross-examine a witness and the extent of such
cross-examination are tactical matters. State v. Diaz, 9th Dist. Lorain No. 04CA008573,
2005-Ohio-3108, ¶ 26. As such, decisions regarding cross-examination cannot form the
Muskingum County, Case No. CT2017-0018 12
basis for a claim of ineffective assistance of counsel. Id. Appellant has not demonstrated
counsel was ineffective in the cross-examination of Deputy Hamilton.
{¶32} Appellant argues counsel was ineffective by stipulating to his two prior
convictions rather than requiring the State to call witnesses from Logan County to
authenticate the judgments. The decision to stipulate to prior convictions may be sound
trial strategy, avoiding testimony which further emphasized Appellant’s prior record. See
State v. Blackburn, 11th Dist. Trumbull No. 2001-T-0052, 2003-Ohio-605, ¶ 39. Further,
Appellant has not demonstrated had counsel not entered the stipulation, the State would
have been unable to prove the prior convictions and the result of the proceeding would
have been different.
{¶33} Appellant argues counsel was ineffective for calling Detective Steve Welker
as a witness and questioning him regarding his failure to obtain an interpreter before
talking to N.D., who is hearing impaired. It appears counsel called Welker to attempt to
demonstrate the police investigation and reports of the incident were incomplete. We
have reviewed the testimony of Detective Welker and the entire transcript, and although
Welker’s testimony was not particularly helpful to Appellant’s case, Appellant has not
demonstrated in the absence of Welker’s testimony, the result of the proceeding would
have been different.
{¶34} Appellant argues during the cross-examination of Detective Welker,
counsel failed to object to speculative testimony. He argues without objection, Welker
testified N.D. knew someone in another apartment heard Appellant yelling at her, but
because the physical contact would not have been audible in another apartment, this
witness would not have added anything the police did not already know. Tr. 252-253.
Muskingum County, Case No. CT2017-0018 13
Competent counsel may reasonably hesitate to object to potential errors in the jury's
presence because objections may be considered bothersome by the jury and may tend
to interrupt the flow of a trial. State v. Howell, 5th Dist. Delaware No. 15 CAA 12 0098,
2016-Ohio-7749, ¶ 39, appeal not allowed, 150 Ohio St.3d 1409, 2017-Ohio-6964, 78
N.E.3d 909. Thus counsel’s failure to object may have been sound trial strategy. Further,
Appellant has not demonstrated in the absence of this testimony concerning an unknown
possible witness, the result of the trial would have been different.
{¶35} Appellant argues counsel was ineffective in putting him on the witness
stand. He argues his testimony allowed the prosecutor to cross-examine him concerning
his prior convictions, as well as allegations in a pending case against Appellant involving
N.D., and a prior case in which he was charged but not convicted.
{¶36} The advice provided by counsel to his or her client regarding the decision
to testify is “a paradigm of the type of tactical decision that cannot be challenged as
evidence of ineffective assistance.” State v. Winchester, 8th Dist. Cuyahoga No. 79739,
2002-Ohio-2130, ¶ 12, citing Hutchins v. Garrison, 724 F.2d 1425, 1436 (C.A.4, 1983),
cert. denied, 464 U.S. 1065, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984). See, also, Jones v.
Murray (C.A.4, 1991), 947 F.2d 1106, 1116, fn. 6. Nonetheless, a claim for ineffective
assistance of counsel may be successful if the record demonstrates the defendant's
decision whether or not to testify was the result of coercion. Id., citing Lema v. United
States, 987 F.2d 48, 52-53 (C.A.1, 1993). Nothing in the record suggests Appellant’s
decision to testify was the result of coercion. A defendant in a criminal case has the due
process right to take the witness stand and to testify in his or her own defense. Rock v.
Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The record does not
Muskingum County, Case No. CT2017-0018 14
demonstrate Appellant did not choose to testify of his own free will, and he therefore
cannot challenge his decision to testify as ineffective assistance of counsel.
{¶37} Finally, Appellant argues counsel was ineffective for failing to request jury
instructions for the lesser-included offense of disorderly conduct or self-defense. As
discussed in Appellant’s second assignment of error earlier in this opinion, the evidence
in the case did not support either instruction. Appellant has not demonstrated had counsel
requested either instruction, the result of the proceeding would have been different.
{¶38} The third assignment of error is overruled.
IV.
{¶39} In his fourth assignment of error, Appellant argues the conviction is against
the manifest weight of the evidence.
{¶40} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶41} Appellant was convicted of domestic violence in violation of R.C.
2929.25(A), which provides, “No person shall knowingly cause or attempt to cause
physical harm to a family or household member.”
Muskingum County, Case No. CT2017-0018 15
{¶42} Appellant argues the photographs were not good quality, and questions
were raised concerning the freshness of the bruise on N.D.’s arm. He notes N.D. had
prior convictions for domestic violence and falsification, and admitted to punching
Appellant in the throat and grabbing his genitals. He takes issue with the lack of a deaf
interpreter when police arrived on the scene and spoke to N.D., and with the failure of the
police to also charge N.D. with domestic violence. He argues Hardy’s testimony is not
credible because she did not see N.D. punch or grab him, and the number of times he
spit on N.D. was unclear from the testimony.
{¶43} N.D. and Hardy both testified Appellant spit on N.D., grabbed her arm,
pushed her, and threw tea on her. N.D. testified the bruise on her arm was caused by
Appellant. Hardy testified she saw Appellant grab N.D.’s arm in the same location as the
bruise. Deputy Hamilton testified that in his recollection, the bruise was darker than it
appeared in the photograph, and it appeared to be fresh. While Phil Smith testified he
did not see the physical altercation between Appellant and N.D., Hardy testified he was
not there when Appellant put his hands on N.D. Based on the testimony presented at
trial, we do not find the jury lost its way in convicting Appellant of domestic violence, and
the judgment is not against the manifest weight of the evidence.
{¶44} The fourth assignment of error is overruled.
V.
{¶45} In his fifth assignment of error, Appellant argues the court erred in
sentencing him to the maximum sentence of thirty-six months.
Muskingum County, Case No. CT2017-0018 16
{¶46} R.C. 2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1. When hearing
an appeal of a trial court's felony sentencing decision, “[t]he appellate court may increase,
reduce, or otherwise modify a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court for resentencing.” R.C.
2953.08(G)(2).
{¶47} Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase,
reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the
matter to the sentencing court for resentencing” if the court finds by clear and convincing
evidence “(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b)
[t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b). “An appellate
court will not find a sentence clearly and convincingly contrary to law where the trial court
considers the principles and purposes of R.C. 2929.11, as well as the factors listed in
R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within
the permissible statutory range.” State v. Ahlers, 12th Dist. Butler No. CA2015–06–100,
2016–Ohio–2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No. CA2014–02–016,
2014–Ohio–5191, ¶ 6.
{¶48} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are
to protect the public from future crime by the offender and others and to punish the
offender using the minimum sanctions the court determines accomplish those purposes
without imposing an unnecessary burden on state or local government resources. To
achieve these purposes, the sentencing court shall consider the need for incapacitating
the offender, deterring the offender and others from future crime, rehabilitating the
Muskingum County, Case No. CT2017-0018 17
offender, and making restitution to the victim of the offense, the public, or both. R.C.
2929.11(A).
{¶49} R.C. 2929.12 lists general factors which must be considered by the trial
court in determining the sentence to be imposed for a felony, and gives detailed criteria
which do not control the court's discretion but which must be considered for or against
severity or leniency in a particular case. The trial court retains discretion to determine the
most effective way to comply with the purpose and principles of sentencing as set forth in
R.C. 2929.11. R.C. 2929.12.
{¶50} Among the various factors that the trial court must consider and balance
under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the
victim as a result of the offense; (2) whether the offender has a history of criminal
convictions; (3) whether the offender has not responded favorably to sanctions previously
imposed by criminal convictions; and (4) whether the offender shows genuine remorse
for the offense. R.C. 2929.12.
{¶51} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony
sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109
Ohio St.3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.
{¶52} Appellant argues the victim induced or facilitated the offense, he acted
under strong provocation from the victim and Miranda Hardy, he did not expect to cause
physical harm to N.D. by grabbing her arm, and there were substantial grounds to mitigate
his conduct, including the court’s failure to instruct the jury on the lesser-included offense
of disorderly conduct.
Muskingum County, Case No. CT2017-0018 18
{¶53} The judgment entry of sentencing recites the trial judge considered the
principles and purposes of sentencing under R.C. 2929.11 and balanced the seriousness
and recidivism factors under R.C. 2929.12. The court further noted in the judgment
Appellant was on community control at the time of the offense, he has three prior felony
convictions, there were minor children present at the time of the commission of the
offense, and Appellant was charged with two new felony offenses while on bond in the
instant case.
{¶54} At the sentencing hearing, the trial court noted on the record:
First, you were on community control out of Logan County at the time
this occurred, for criminal nonsupport. And at that point in time, for a period
of time from 3-3-15 through sometime in 2016, they didn’t know your
whereabouts. They suspended your community control. They scheduled
four hearings between August – between January of ’16 and August of ’16,
which were never – were always continued. They did, on August the 24th
of ’16, indicate that your community control was continued. Therefore, you
were not being very cooperative on community control.
You have three prior felonies; convictions. These include
intimidation of a witness, as well as a felony domestic violence, as well as
trafficking in marijuana.
You had attended the CBCF at one point in time. Though, you do
not mention that at the presentence investigation in this case.
Muskingum County, Case No. CT2017-0018 19
Court also finds that at the time you were out on bond you resulted
in new charges being filed against you and the revocation of your bond for
aggravated burglary and domestic violence involving the same victim.
Therefore, the Court finds that due to the relationship and the fact
there were children present, your prior history, and your propensity to
commit crimes, that the maximum sentence would be appropriate in this
case.
Sent. Tr. 9-10.
{¶55} Based on the findings of the court, we find no error in imposition of the
maximum sentence in this case. The fifth assignment of error is overruled.
VI.
{¶56} Appellant argues the court erred in ordering him to pay court costs.
{¶57} Appellant first argues the court erred in failing to inquire about his current
and future ability to pay costs, as he was represented by court-appointed counsel and
therefore clearly indigent. The record demonstrates Appellant filed an affidavit of
indigency and counsel was appointed on December 2, 2016. However, retained counsel
entered an appearance on January 19, 2017.
{¶58} Appellant relies on this Court’s opinion in State v. Walker, 5th Dist. Richland
No. 09CA88, 2016-Ohio-8615, ¶ 58, appeal not allowed, 149 Ohio St.3d 1420, 2017-
Ohio-4038, 75 N.E.3d 237, reconsideration denied, 150 Ohio St.3d 1412, 2017-Ohio-
6964, 78 N.E.3d 911, in which we held as follows:
Muskingum County, Case No. CT2017-0018 20
In State v. Joseph, 125 Ohio St.3d 76, 2010–Ohio–954, 926 N.E.2d
278, the Supreme Court held that it is reversible error under Crim.R. 43(A)
for a trial court to impose costs in its sentencing entry when it did not impose
those costs in open court at the sentencing hearing. Id. at ¶ 22. The Court
reasoned that the defendant was denied the opportunity to claim indigence
and to seek a waiver of the payment of court costs before the trial court
because the trial court did not mention costs at the sentencing hearing. Id.
The same is true in the instant case. Here, appellant was not given an
opportunity at the sentencing hearing to seek a waiver of the payment of
costs because the trial court did not mention costs at the sentencing
hearing. Joseph, 2010–Ohio–954 at ¶ 13. We thus vacate the order to pay
costs and remand the matter to the trial court to permit appellant to argue
for waiver of court costs.
{¶59} Likewise, in State v. Pennington, 5th Dist. Guernsey No. 16CA14, 2017-
Ohio-1423, we found the trial court erred in failing to mention court costs in open court,
thus denying the defendant and opportunity to seek a waiver of court costs. Id. at ¶¶26-
27.
{¶60} In the instant case, the trial court informed Appellant in open court at the
sentencing hearing, “You will also be ordered to pay the court costs in this matter.” Sent.
Tr. 10. Therefore, the instant case is distinguishable from Walker and Pennington as
Muskingum County, Case No. CT2017-0018 21
Appellant was informed he would be ordered to pay costs, and was given an opportunity
to seek a waiver of payment of costs based on indigency.
{¶61} Appellant further argues the imposition of court costs was error because
they must be pursued in civil collection proceedings, citing State v. Eubanks, 2nd Dist.
Champaign No. 2015-CA-39, 2017-Ohio-2681, and State v. Ragland, 2nd Dist.
Champaign No. 2015-CA-36, 2017-Ohio-2783. The cited cases from the Second District
found error in the inclusion of costs and court-appointed counsel fees in a post-
confinement repayment plan, but did not prohibit the inclusion of court costs in the
sentencing entry. In fact, Ragland recognized court costs would be included in the
sentencing entry as a part of the sentence:
We review a trial court's imposition of a repayment schedule for court
costs under an abuse of discretion standard. See State v. Gullett, 4th Dist.
Gallia No. 09CA4, 2010–Ohio–2785, ¶ 10. Pursuant to R.C. 2947.23, the
trial court was required to “include in the sentence the costs of prosecution
* * * and render a judgment against the defendant for such costs.” However,
court costs are distinct from criminal punishment. This is because “although
costs in criminal cases are assessed at sentencing and are included in the
sentencing entry, costs are not punishment, but are more akin to a civil
judgment for money.” State v. Threatt, 108 Ohio St.3d 277, 2006–Ohio–
905, 843 N.E.2d 164, ¶ 15. An order to pay court costs is essentially a
judgment on a contractual debt where the court is the creditor and the party
ordered to pay court costs is the debtor. State v. Lamb, 163 Ohio App.3d
Muskingum County, Case No. CT2017-0018 22
290, 2005–Ohio–4741, 837 N.E.2d 833, ¶ 13 (2d Dist.). As such, the
creditor, i.e., the court, can collect only the money it is due by the methods
provided for the collection of civil judgments. Id.Ragland, supra, ¶ 13.
{¶62} In the instant case, the court costs were not included in a post confinement
repayment schedule and the concerns addressed by the Second District in the cited
cases are not applicable.
{¶63} The sixth assignment of error is overruled.
{¶64} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, J.
Wise, John, P.J. and
Baldwin, J. concur