State v. Favers , 2013 Ohio 5859 ( 2013 )

[Cite as State v. Favers, 2013-Ohio-5859.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 13CA42
EDWARD FAVERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 2012CR0813D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 27, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. JOHN C. O'DONNELL
Prosecuting Attorney 10 West Newlon Place
Richland County, Ohio Mansfield, Ohio 44902
By: JILL M. COCHRAN
Assistant Richland County Prosecutor
38 South Park Street
Manfield, Ohio 44902
Richland County, Case No. 13CA42 2
Hoffman, P.J.
{¶1} Defendant-appellant Edward R. Favers appeals his sentence entered by
the Richland County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF PARTIAL FACTS AND PROCEDURAL HISTORY1
{¶2} Appellant was employed as a juvenile parole officer with the Ohio
Department of Youth Services. On June 6, 2012, an officer of the Mansfield Police
Department observed Appellant, during work hours and while driving a State owned
DYS vehicle, pick up a well known prostitute. Appellant paid the prostitute to engage in
sexual intercourse with him on his pontoon boat. Appellant later falsified his weekly
itinerary report to ODYS to reflect he worked until 4:30 p.m. on the same day.
{¶3} Further investigation revealed Appellant made twenty-seven cell phone
calls on his personal cell and three phone calls on his State owned cell to the same
prostitute in order to set up meet times. It was also determined three other prostitutes
had engaged in prostitution with Appellant either in his car or on his boat. All four
prostitutes advised Appellant would pick them up in his State issued ODYS vehicle.
{¶4} As a result, Appellant was placed on administrative leave with pay. He
retired on October 12, 2012.
{¶5} Appellant was charged with numerous offenses and, after negotiations,
entered a plea of guilty to one count of tampering with government records, one count
of promoting prostitution and one count of soliciting. The State agreed to dismiss
sixteen remaining counts. At sentencing on April 16, 2013, the Richland County Court
1
A full rendition of the underlying facts and procedural history is unnecessary for our
resolution of this appeal.
Richland County, Case No. 13CA42 3
of Common Pleas imposed a three year term of community control, 400 hours of
community service and ordered Appellant to pay a $15,000 fine.
{¶6} Appellant now appeals2, assigning as error:
{¶7} “I. THE COURT ABUSED ITS DISCRETION BY FINING
DEFENDANT/APPELLANT A [SIC] $15,000.00 WITHOUT EVIDENCE THAT
DEFENDANT HAD PRESENT OR FUTURE ABILITY TO PAY SAID FINE.”
{¶8} R.C. 2929.19(B)(6) and R.C. 2929.18(E) require a court to inquire as to a
defendant's present and future ability to pay a fine prior to imposing one. When
determining an offender's present or future ability to pay, there are no expressed factors
to be considered or specific findings to be made. A trial court is not required to hold a
hearing to determine an offender's ability to pay. However, there must be some
evidence on the record the trial court considered the defendant's present and future
ability to pay the sanction. State of Ohio v. Hayes, 4th Dist. No. 08AP233, 2009-Ohio-
1100.
{¶9} The record demonstrates at the sentencing hearing the trial court found
Appellant was employed by a family business and had entered into early retirement
from ODYS. The record further established he was recently hired at Home Depot to
support his four children. Additionally, Appellant had not filed an affidavit of indigency
until he filed the within appeal. As a term of his community control, the trial court
ordered Appellant seek and maintain employment.
2
Appellant has been determined indigent for purposes of this appeal, but had not been
determined to be indigent at the time of trial.
Richland County, Case No. 13CA42 4
{¶10} We find, the record does not affirmatively demonstrate the trial court did
not consider evidence regarding Appellant’s present and future ability to pay the
sanction.
{¶11} The sole assignment of error is overruled.
{¶12} Appellant's sentence in the Richland County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN
Richland County, Case No. 13CA42 5
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
EDWARD FAVERS :
:
Defendant-Appellant : Case No. 13CA42
For the reason stated in our accompanying Opinion, Appellant's sentence in the
Richland County Court of Common Pleas is affirmed. Costs to Appellant
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN