State v. Price , 2016 Ohio 7633 ( 2016 )

[Cite as State v. Price, 2016-Ohio-7633.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1031
Appellee Trial Court No. CR0201402776
v.
Oscar Price DECISION AND JUDGMENT
Appellant Decided: November 4, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, Claudia A. Ford,
Assistant Prosecuting Attorney, for appellee.
Steven Casiere, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Oscar Price, appeals the imposition of costs and consecutive
sentences from the January 20, 2016 judgment of the Lucas County Court of Common
Pleas. For reasons that follow, we affirm.
Assignments of Error
{¶ 2} Appellant sets forth the following assignments of error:
1. The findings made by the trial court when imposing consecutive
sentences were not supported by the record.
2. The trial court erred in ordering Appellant to pay costs for
confinement and assigned counsel fees.
Background Facts
{¶ 3} In August 2014, police received a tip appellant was trafficking in drugs. The
police conducted surveillance and arrested appellant for the trafficking.
{¶ 4} On November 6, 2014, the Lucas County Grand Jury indicted appellant and
he was charged with trafficking heroin, cocaine, and marijuana, all felonies of the fourth
degree, and with possession of heroin and cocaine, felonies of the fifth degree.
{¶ 5} On January 26, 2015, appellant entered an Alford plea to trafficking heroin
and to amended charges for trafficking cocaine and marijuana. The amended charges
were made fifth degree felonies and the possession charges were dismissed.
{¶ 6} At the plea hearing, the trial court informed appellant of consequences
resulting from his plea. Specifically, the court informed appellant of “the potential of
running the sentences consecutive[,]” and of the potential 42-month prison term.
Appellant was also informed, among others, that his plea triggered a violation of his
probation, of his waiver of right to jury, and of his right to appeal.
2.
{¶ 7} On February 11, 2015, appellant was sentenced to 17 months for trafficking
heroin and 11 months for both the amended trafficking cocaine and marijuana charges.
Appellant’s sentences were set to run consecutively.
{¶ 8} Appellant timely appealed the February 11, 2015 judgment, asserting a sole
assignment of error that the trial court erred in imposing consecutive sentences.
Appellant did not, however, appeal the imposition of court costs and the cost of
confinement.
{¶ 9} On November 17, 2015, this court vacated the sentence and remanded this
matter for resentencing because the trial court failed to make the required findings under
R.C. 2929.14(C)(4). The resentencing was not a do novo sentencing and the scope of
remand was limited to make findings as to whether the imposition of consecutive
sentences was necessary to protect the public from future harm or to punish appellant.
{¶ 10} On January 15, 2016, appellant was resentenced. The trial court imposed
the same sentence as was imposed February 11, 2015. The sentence was journalized
January 20, 2016.
{¶ 11} On February 17, 2016, appellant filed a notice of appeal. He now
challenges the consecutive sentences and imposition of costs from the January 20, 2016
judgment.
Assignment of Error No. 1
{¶ 12} In the first assignment of error, appellant argues the trial court erred in
imposing consecutive sentences because the record does not support the sentences were
3.
necessary to protect the public from future harm or to punish the offender. Appellee
contends the record supports imposing consecutive sentences because the trial court made
necessary findings under R.C. 2929.14(C)(4) and engaged in the appropriate analysis.
{¶ 13} An appellate court reviews consecutive sentences using the standard set
forth in R.C. 2953.08. See State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-
1000, ¶ 10. Pursuant to R.C. 2953.08, “[a]n appellate court may vacate or modify a
felony sentence on appeal only if it determines by clear and convincing evidence that the
record does not support the trial court’s findings under relevant statutes or that the
sentence is otherwise contrary to law.” State v. Marcum, Slip Opinion No. 2016-Ohio-
1002, ¶ 23.
{¶ 14} R.C. 2929.14(C)(4) requires the court to make three findings: (1)
consecutive sentences are necessary to protect the public from future harm or to punish
the offender, (2) consecutive sentences are not disproportionate to the seriousness of the
offense, and (3) one of the conditions in R.C. 2929.14(C)(4)(a)-(c) exists. See State v.
Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437, ¶ 10.
{¶ 15} The trial court is not required to state specific words or phrases when the
record reveals the trial court engaged in the appropriate analysis. Jude at ¶ 7, citing State
v. Wright, 6th Dist. Lucas No. L-13-1058, 2013-Ohio-5903, ¶ 33. The findings required
under R.C. 2929.14(C)(4) must be made in the sentencing entry and supported by the
record. Jude at ¶ 10.
4.
{¶ 16} Here, appellant concedes R.C. 2929.14(C)(4) was complied with aside
from the trial court failing to show consecutive sentences were “necessary to protect the
public from future harm or to punish the offender.” See R.C. 2929.14(C)(4).
Findings Made at Sentencing
{¶ 17} At the January 15, 2016 hearing and in the January 20, 2016 entry, the trial
court stated consecutive sentences were necessary to both protect the public from future
crime and punish appellant. Specifically, at the January 15 sentencing hearing, the trial
court pertinently stated:
Court continues to be persuaded that defendant is not amenable to
community control and that prison is consistent with the purposes of the
sentencing statute. It’s hereby ordered the defendant serve a term of 17
months as to Count 1, 11 months as to Count 5, and 11 months as to Count
3. The sentences are ordered to be served consecutive to one another.
Consecutive sentences being necessary to fulfill the purpose of Revised
Code 2929.11 and 2929.14(E) (sic) and not disproportionate to the
seriousness of the offender’s conduct or the danger the offender poses. The
court further finds to protect the public from future crime and/or punish this
offender, the defendant in this particular case was under community control
when the offense was committed and the defendant’s criminal history
requires consecutive sentences[.]
In the January 20 journal entry, the court pertinently stated:
5.
Being necessary to fulfill the purposes of R.C. 2929.11 and
2929.14(C)(4), consecutive sentences are necessary to protect the public
from future crime or to punish the offender and are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender
poses to the public. The court further finds the defendant was on
community control, the harm was great or unusual such that no single
prison term is adequate, and the defendant’s criminal history demonstrates
that consecutive sentences are necessary to protect the public, therefore the
sentences are ordered to be served consecutively.
{¶ 18} Consequently, the record supports the trial court made the necessary
findings under R.C. 2929.14(C)(4).
{¶ 19} Moreover, the record reveals appellant had a lengthy criminal history,
which included being charged with over 40 misdemeanors and 4 felonies, the fact that
trafficking for which appellant was accused allegedly occurred within 1000 feet of a
school, and appellant violated a community control sanction when his plea was accepted
by the trial court. Therefore, the trial court did not err in imposing consecutive sentences,
as the necessary findings were made and the record reveals the appropriate analysis
occurred.
{¶ 20} Accordingly, appellant’s first assignment of error is not well taken.
6.
Assignment of Error No. 2
{¶ 21} In the second assignment of error, appellant argues the trial court erred by
imposing costs of attorney fees and confinement without considering his present and
future ability to pay. Appellee contends the trial court did not err because the record
indicates the trial court properly addressed and considered appellant’s ability to pay.
{¶ 22} “R.C. 2929.18(A)(5)(a)(ii) requires that the trial court impose against all
convicted defendants a financial sanction for the costs of confinement in a state
institution to the extent he is able to pay.” State v. Tebary, 6th Dist. Lucas No. L-15-
1235, 2016-Ohio-3095, ¶ 12. “Likewise, R.C. 2941.51(D) provides that the cost of
appointed counsel must be paid by the county as approved by the court.” Id.
{¶ 23} “The court can order the defendant to pay all or a part of the cost of
appointed counsel but only if the court determines that the offender has, or reasonably
may be expected to have, the means to meet some part of the costs of the services
rendered.” (Quotations omitted.) Id.
Res Judicata and Void Aspects
{¶ 24} “It is a longstanding principle that an offender’s sentence that does not
properly include a statutorily mandated term is contrary to law.” See State v. Moore, 135
Ohio St. 3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 14, citing Colegrove v. Burns, 175
Ohio St. 437, 195 N.E.2d 811 (1964).
7.
{¶ 25} Failure to consider an offender’s ability to pay is a void aspect of a
sentence which requires resentencing. See Moore at ¶ 13-14, citing State v. Fischer, 128
Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
{¶ 26} Without timely appeal, only void aspects of a sentence can be challenged
because “[t]he remainder of the sentence, which the defendant did not successfully
challenge, remains valid under the principles of res judicata.” Fischer at ¶ 17.
{¶ 27} Here, appellant challenged his consecutive sentences but failed to challenge
costs in his July 2015 direct appeal. Therefore, the scope of his January 2016
resentencing was limited to addressing the imposition of consecutive sentences
successfully challenged on direct appeal. Thus, appellant can only challenge void aspects
of his February 11, 2015 sentence.
{¶ 28} Of the costs he now challenges, only failure to properly address mandatory
cost of confinement, which is mandated under R.C. 2929.18(A), has been deemed a void
aspect by the Supreme Court of Ohio. See Moore at ¶ 17.
{¶ 29} Accordingly, appellant can only challenge cost of confinement because his
challenge to cost of appointed counsel is barred res judicata.
Cost of Confinement
{¶ 30} R.C. 2929.18(A)(5)(a)(ii) specifically states the cost of confinement “shall
not exceed the total amount of reimbursement the offender is able to pay as determined at
a hearing and shall not exceed the actual cost of the confinement.”
8.
{¶ 31} “[W]hile a sentencing court is not required to hold a hearing when
determining whether to impose a financial sanction under this provision, the record must
contain some evidence that the court considered the offender’s ability to pay such a
sanction.” State v. Bowman, 6th Dist. Lucas No. L-11-1300, 2014-Ohio-3851, ¶ 34.
{¶ 32} For example, in State v. Hocker, 7th Dist. Belmont No. 12 BE 31, 2013-
Ohio-5522, the appellate court vacated a portion of a sentencing entry which imposed
cost of confinement and remanded for a determination of the offender’s ability to pay.
The record contained no statements the offender’s ability to pay was considered prior to
imposing the cost. Id. at ¶ 20. Specifically, the prosecution did not address it below, the
sentencing entry contained no language referencing it, and the sentencing hearing
transcript did not reflect the court addressed it in open court. Id.
{¶ 33} Contrary to Hocker, the record here reflects the offender’s ability to pay
was considered prior to imposing the cost of confinement.
{¶ 34} At the February 11, 2015 hearing, the court stated: “Defendant is 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 as authorized by law, and you’re
ordered to reimburse the State of Ohio and Lucas County for such costs.”
{¶ 35} The February 2015 sentencing entry also stated: “Defendant 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 as authorized by
law. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs.”
9.
{¶ 36} Therefore, the record contains evidence the trial court properly considered
and addressed the offender’s ability to pay the cost of confinement sanction, and further
challenge is barred by res judicata.
{¶ 37} Accordingly, appellant’s second assignment of error is not well-taken.
Conclusion
{¶ 38} The judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant is ordered to pay 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.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
10.