State v. Lloyd , 2015 Ohio 3636 ( 2015 )

[Cite as State v. Lloyd, 2015-Ohio-3636.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2015-05-038
: OPINION
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:
DAMON SHAWN LLOYD, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 06 CR 23706
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
Damon Shawn Lloyd, #A547349, Chillicothe Correctional Institution, P.O. Box 5500,
Chillicothe, Ohio 45601, defendant-appellant, pro se
RINGLAND, J.
{¶ 1} Defendant-appellant, Damon Shawn Lloyd, appeals from a decision of the
Warren County Court of Common Pleas modifying his sentence and denying his motion for
resentencing.
{¶ 2} Following a bench trial, Lloyd was found guilty of one count of murder in
violation of R.C. 2903.02(A) with a firearm specification. He was sentenced to 15 years to life
Warren CA2015-05-038
in prison with a consecutive three-year prison term for the firearm specification, along with
various financial sanctions.
{¶ 3} Years later, Lloyd filed a motion for resentencing based on a void judgment.
Therein, Lloyd argued the portion of his sentence relating to costs, fees and restitution was
void because the trial court failed to advise him that he could be ordered to perform
community service if he failed to pay those financial sanctions. The trial court vacated that
portion of Lloyd's sentence related to costs, court-appointed counsel fees and other fees, but
otherwise denied Lloyd's motion for resentencing.
{¶ 4} Lloyd now appeals, raising three assignments of error for review. For ease of
discussion, the assignments of error will be discussed out of order.
{¶ 5} Assignment of Error No. 2:
{¶ 6} THE TRIAL COURT ERRED AS A MATTER OF LAW, AND ABUSED ITS
DISCRETION, WHEN IT VIOLATED R.C. 2929.19(B)(6), WHEN THE TRIAL COURT
FAILED TO PROVIDE, BEFORE IMPOSING A FINANCIAL SANCTION UNDER SECTION
2929.18 OF THE REVISED COSE, THAT THE TRIAL COURT SHALL CONSIDER THE
OFFENDER'S PRESENT AND FUTURE ABILITY TO PAY THE AMOUNT OF THE
SANCTION OR FINE.
{¶ 7} Lloyd's original judgment entry of sentence stated: "Defendant is ordered to pay
any restitution, all prosecution costs, court appointed counsel costs and any fees permitted
pursuant to R.C. 2929.18(A)(4), for which execution is hereby ordered." However, the entry
did not set forth the amount of restitution to be paid. The court also declined to check the
box finding Lloyd capable of paying restitution. The state argues that the doctrine of res
judicata bars Lloyd from raising the issue of restitution where he could have raised it on direct
appeal.
{¶ 8} We find that the restitution order was contrary to statute. R.C. 2929.18
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provides that an offender may be ordered to pay restitution and sets out several
requirements should the court impose restitution, including requiring the court to determine at
sentencing the amount of restitution to be paid. The imposition of restitution in the judgment
entry of sentence without such a determination was contrary to statute, and therefore, void.
State v. Gipson, 12th Dist. Warren No. CA2011-02-015, 2011-Ohio-5747, ¶ 14. Accordingly,
the doctrine of res judicata does not bar Lloyd from arguing that the trial court erred in
imposing restitution.
{¶ 9} In denying Lloyd's motion for resentencing, the trial court found that it had
"declined to find the Defendant has or is reasonably expected to have the means to pay the
financial sanctions" in the original judgment entry of sentencing. A review of the original
judgment entry of sentencing confirms that finding. The trial court has thus acknowledged
that it did not intend to order Lloyd to pay any financial sanctions. Therefore, the trial court's
restitution order is hereby vacated.
{¶ 10} Lloyd's second assignment of error is hereby sustained to the extent the
imposition of restitution in the original judgment entry of sentence was void.
{¶ 11} Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT ERRED AS A MATTER OF LAW, AND ABUSED ITS
DISCRETION, WHEN IT VIOLATED R.C. 2947.23(A)(1)(A), WHEN THE TRIAL COURT
FAILED TO NOTIFY THE DEFENDANT-APPELLANT AT "SENTENCING" ON MARCH
29TH, 2007 THAT FAILURE TO PAY COURT COSTS, RESTITUTION, AND ANY AND ALL
PROSECUTION COSTS, AND COURT APPOINTED COUNSEL COSTS COULD RESULT
IN AN ORDER REQUIRING DEFENDANT-APPELLANT TO PERFORM COMMUNITY
SERVICE "UNTIL JUDGMENT IS PAID OR UNTIL THE COURT IS SATISFIED THAT THE
DEFENDANT-APPELLANT IS IN COMPLIANCE WITH THE APPROVED SCHEDULE."
SEE: R.C. 2947.23(A)(1)(A).
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{¶ 13} Assignment of Error No. 3:
{¶ 14} TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, IN VIOLATION
OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, FOR
FAILING TO "OBJECT" TO THE TRIAL COURT'S IMPOSITION OF COURT COSTS,
RESTITUTION, AND ANY AND ALL PROSECUTION COSTS, AND COURT APPOINTED
COUNSEL COSTS AS THE TRIAL COURT DID NOT NOTIFY DEFENDANT-APPELLANT
MR. LLOYD, THAT HIS FAILURE TO PAY ANY AND ALL COSTS MAY RESULT IN THE
COURT ORDERING THE DEFENDANT-APPELLANT TO PERFORM COMMUNITY
SERVICE "UNTIL THE JUDGMENT IS PAID OR UNTIL THE COURT IS SATISFIED THAT
THE DEFENDANT-APPELLANT IS IN COMPLIANCE WITH THE APPROVED SCHEDULE."
SEE R.C. 2947.23(A)(1)(A).
{¶ 15} The trial court's entry, dated April 9, 2015, vacated "the order for the Defendant
to pay costs, court-appointed counsel fees and other fees." As the trial court has vacated
that portion of Lloyd's sentence regarding costs, and this court has vacated that portion of
Lloyd's sentence regarding restitution under the second assignment of error discussed
above, Lloyd's arguments under the first and third assignments of error are rendered moot.
Accordingly, Lloyd's first and third assignments of error are overruled.
{¶ 16} Judgment affirmed as modified to reflect that the restitution order is vacated.
PIPER, P.J., and M. POWELL, J., concur.
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