State v. Brewer , 2014 Ohio 1903 ( 2014 )

[Cite as State v. Brewer, 2014-Ohio-1903.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, : Case No. 14CA1
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
CARL BREWER, :
Defendant-Appellant. : RELEASED: 4/24/14
APPEARANCES:
Michael R. Huff, Athens, Ohio, for appellant.
Colleen S. Williams, Meigs County Prosecuting Attorney, and Amanda Bizub-
Franzmann, Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.
Harsha, J.
{¶1} Carl Brewer pleaded guilty to one count of burglary and appeals his
sentence, which included a seven-year prison term and an order to pay restitution of
$1,000 to the victim.
{¶2} First, Brewer argues that his trial counsel was ineffective because the
attorney failed to review his presentence investigation report (“PSI”) before the
sentencing hearing and failed to request a continuance of the hearing to review the
report. However, counsel indicated he did not review the PSI because it was
incomplete due to Brewer's failure to cooperate with the investigation. Moreover, given
Brewer’s admitted noncompliance with the trial court’s orders, including his criminal
conduct while released on bond pending sentencing, Brewer cannot establish a
reasonable probability that, but for counsel’s purported errors, the result of the
proceeding would have been different.
Meigs App. No. 14CA1 2
{¶3} Next, Brewer claims that the trial court abused its discretion in sentencing
him just short of the maximum prison term authorized by law. Because our standard of
review in felony sentencing cases is no longer the abuse-of-discretion standard and
Brewer concedes that his seven-year prison sentence is not clearly and convincingly
contrary to law, this assignment of error has no merit.
{¶4} Brewer finally contends that the trial court erred when it sentenced him to
pay restitution of $1,000 to the victim without first inquiring of his ability to pay as
required by R.C. 2929.19(B)(5).1 Brewer’s claim is meritless because the record
included pertinent information about his financial situation and the trial court specified
that it had determined that he “has the present and/or future ability to pay restitution.”
{¶5} Therefore, we overrule Brewer’s assignments of error and affirm the
judgment of the trial court.
I. FACTS
{¶6} Michael Duhl, who had installed cameras inside his home, telephoned
police that Brewer was burglarizing his house. The police interrupted the burglary and
arrested Brewer when he attempted to run away. Brewer later confessed to breaking
into Duhl’s house and stealing items from it. A subsequent search of Brewer’s car
uncovered a tool case stolen from Duhl’s house in an earlier burglary.
{¶7} Less than two months later, a Meigs County grand jury indicted Brewer on
two counts of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree.
At his arraignment hearing, Brewer stated that he was 28 years old, he had not worked
1
Both parties and the trial court erroneously refer to this requirement as being in R.C. 2929.19(B)(6).
They are, however, referring to former R.C. 2929.19(B)(6), which was amended and included in the
current version of R.C. 2929.19(B)(5) before this criminal case was instituted. See State v. Jennings, 2d
Dist. Montgomery No. 24559, 2012-Ohio-1229, ¶ 6.
Meigs App. No. 14CA1 3
in two years, he did not have assets more than $500 in his name alone, and he lived
with his father. The trial court determined that Brewer was indigent and appointed
attorney David Baer to represent him. Brewer noted that he had just posted $500 to be
released on a $5,000 bond in a different criminal matter. The trial court set a $5,000
appearance bond, with 10% cash permitted.
{¶8} Shortly thereafter, the trial court held a bond hearing, and it released
Brewer on his own recognizance upon his posting of $110 in fees. The court ordered
Brewer to remain at his mother’s residence except to travel with prior approval to church
and doctor appointments. The trial court later held that Brewer need not post the $110
in fees because he had previously posted the $500 for the initial bond.
{¶9} About a month later, the state filed a motion to revoke Brewer’s bond on
the basis that he had committed another burglary while he was out on bond. The trial
court revoked the bond and ordered Brewer’s arrest and detention until he could appear
before it. At a pretrial hearing, the state commented that Brewer had been released on
his own recognizance for various crimes on five separate occasions and that he had
“been in court a number of times on bond revocations,” including “a new breaking and
entering,” which verified that he was not complying with the conditions of his release.
The trial court emphasized to Brewer that he had to follow court orders, and it set a new
bond.
{¶10} Brewer then entered into an agreement to plead guilty to the second count
of burglary in return for the dismissal of the first count. The parties agreed that the state
would recommend a prison term not to exceed four years and Brewer would argue that
he be sentenced to community control. At the change of plea hearing, Brewer testified
Meigs App. No. 14CA1 4
that he had completed the seventh grade and that he was not able to read and write
very well. He stated, however, that he had previously been employed as a carpenter
and also operated forklifts and Bobcat machines. He also stated that other than some
liver problems he did not have physical or mental issues. The state noted that although
Brewer’s previous bond had been revoked because of a suspected burglary, because
he was not indicted for that incident, the state would not oppose letting Brewer out on
bond pending sentencing. A neighbor in the audience at the hearing noted that
everybody in the community had had trouble with Brewer in the past.
{¶11} The trial court found Brewer guilty upon the parties’ stipulation of fact and
ordered a presentence investigation. The trial court further ordered that Brewer submit
to an evaluation and assessment by TASC, Health Recovery Services, and SEPTA.
The trial court released him on his own recognizance upon payment of $110 on the
conditions that he stay home, he not have contact with either the victim of the crime or
another neighbor who spoke at the hearing, he remain at home except when he went to
church, and he remain law abiding.
{¶12} A couple months later, the trial court held a sentencing hearing. The state
noted that Brewer had not completed the ordered evaluations and had been stopped by
the State Highway Patrol for marijuana possession while out on bond pending
sentencing.2 In accordance with the parties’ plea agreement, the state recommended
that Brewer receive a four-year prison term. The burglary victim requested restitution of
$1,000 to replace a broken door, and in his victim impact statement, requested a six-
month prison term. Brewer’s trial counsel, attorney Baer, argued that Brewer should be
2
Although the hearing does not indicate whether he was charged, Brewer's brief on appeal concedes that
he was cited for a misdemeanor marijuana charge.
Meigs App. No. 14CA1 5
placed in a community based correctional facility, rather than prison, to participate in
programs addressing his underlying chemical dependency and substance abuse
problems. But the attorney recognized that if Brewer had failed to make the
appointments to be evaluated for these programs, “that may limit ou[r] choices.”
{¶13} At that point in the proceedings, the trial court asked attorney Baer if he
had seen Brewer’s PSI:
THE COURT: Did you not get a chance to see the PSI?
ATTORNEY BAER: No. I understood it was incomplete.
THE COURT: It’s dreadful.
ATTORNEY BAER: Uh…
THE COURT: Totally not compliant. He ignored all the instructions of my
staff. Failed to go to SEPTA. Failed to participate in MonDay. Didn’t do
anything we requested. Today is the day. I am sure you remember the
litany I told him. He had to get all of that done
ATTORNEY BAER: Yes.
THE COURT: And it’s certainly no reflection on you, Mr. Baer. I don’t
want you to argue things that are not possible for me at this point.
ATTORNEY BAER: That’s alright. Alright.
{¶14} The trial court noted that a probation officer had given Brewer a packet for
the PSI that he was supposed to complete and return, but he did not. Brewer claimed
that he didn’t understand it. Brewer also failed to set an appointment with Health
Recovery Services for a drug-dependence evaluation until the date of sentencing.
Brewer claimed that he completed a TB test and answered questions at SEPTA, but he
did not disagree with the court’s statement that SEPTA found that he was not an
acceptable candidate. Brewer agreed that his multiple misdemeanor convictions related
Meigs App. No. 14CA1 6
to his use of alcohol and drugs and that he couldn’t even remember that he had been
pulled over by a patrolman for marijuana use while driving a car. The PSI concluded
that Brewer “has a problem with following rules and the ability to stay out of trouble” and
recommended that he be sentenced to the maximum prison term.
{¶15} At the conclusion of the hearing, the trial court decided to sentence
Brewer to a prison term longer than that recommended by the state because of his
failure to follow orders, including his continued violation of the law while he was out on
bond:
THE COURT: Alright. I’m giving him seven years in prison. I’m going to
remand him to the custody of the Meigs County Sheriff. You can apply for
judicial release after 60 months. I’m not following the recommendation of
the State. I don’t think it’s severe enough based on the fact you don’t do
anything anybody says, Mr. Brewer. You continue to violate the law while
you’re on bond. Remanded to custody.
{¶16} The trial court also ordered Brewer to pay court costs and the $1,000 in
restitution requested by the victim. The trial court issued a sentencing entry reflecting
its decision.
{¶17} We dismissed Brewer’s initial appeal because there was no journal entry
resolving the first count of burglary charged in the indictment. State v. Brewer, 4th Dist.
Meigs No. 12CA9, 2013-Ohio-5118. Subsequently, the trial court issued a new
sentencing entry that sentenced Brewer to seven years in prison on his conviction for
the second count of burglary, dismissed the first count of burglary, and ordered that
Brewer pay $1,000 in restitution to the victim. This appeal from the amended
sentencing entry ensued.
II. ASSIGNMENTS OF ERROR
Meigs App. No. 14CA1 7
{¶18} Brewer assigns the following errors for our review:
1. The appellant was denied the effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the Constitution
of the United States and Art. I, section 10 of the Ohio Constitution.
2. The trial court abused its discretion when it sentenced appellant to
serve a near maximum sentence (7 years out of a possible maximum 8
year sentence).
3. The trial court erred as a matter of law and abused its discretion when
it sentenced appellant to pay restitution of $1,000 to the victim without first
inquiring of the appellant’s ability to pay as required by ORC
2929.19(B)[5].
III. LAW AND ANALYSIS
A. Ineffective Assistance of Counsel
{¶19} In his first assignment of error Brewer claims that he was denied the
effective assistance of counsel. More specifically, Brewer contends that his trial counsel
was ineffective because he did not review the PSI, did not request a continuance to
confer with Brewer and have Brewer complete the PSI, and failed to address the trial
court’s concerns.
{¶20} Criminal defendants have the constitutional right to counsel, which
includes the right to the effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387,
392, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985) (“we have held that the trial-level right to
counsel, created by the Sixth Amendment and applied to the States through the
Fourteenth Amendment, * * * comprehends the right to effective assistance of counsel”);
Article I, Section 10, Ohio Constitution.
{¶21} To prevail on a claim of ineffective assistance of counsel, a criminal
defendant must establish (1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
Meigs App. No. 14CA1 8
reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different. State v. Short, 129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E.2d
1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 23. The
defendant bears the burden of proof because in Ohio, a properly licensed attorney is
presumed competent. State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 23. Failure to establish either part of the test is fatal to an ineffective-
assistance claim. Strickland at 697; State v. Bradley, 42 Ohio St. 3d 136, 143, 538
N.E.2d 373 (1989).
{¶22} Brewer cannot establish a reasonable probability that but for counsel’s
alleged errors, the result of the proceeding would have been different. The transcript of
the sentencing hearing indicates that the trial court rejected the state’s recommendation
of a four-year prison term and imposed a harsher sentence because Brewer exhibited a
pattern of not complying with orders, including violating the law while released on bond.
Ironically, Brewer argues that he completed a SEPTA evaluation and had a TB test,
“thus partially complying” with the trial court’s orders. (Emphasis added.) By
contending that he only partially complied with the orders, Brewer essentially concedes
that he did not fully comply with them. And Brewer further admits, as he did at the
sentencing hearing, that one of the trial court orders he violated required him to abide
by the law when he was released on bond pending sentencing; he violated the order
because he was pulled over for a marijuana charge.
{¶23} There is no credible evidence in the record to suggest that if Brewer’s trial
counsel had reviewed the PSI before sentencing, requested a recess during sentencing,
Meigs App. No. 14CA1 9
or asked that Brewer be given additional time to complete the information he had failed
to previously on the PSI, a different result was reasonably probable. Brewer does not
argue on appeal that the information in the PSI was incorrect; nor can he allude to any
additional information that could have changed the fact that he continued to violate the
law during the short period of time he was released on bond pending sentencing and
that he failed to complete information or provide evaluations as instructed. Nor could he
have changed the fact when he did get evaluated, SEPTA determined that he was not
an acceptable candidate for its program. Furthermore, Brewer never expressed
dissatisfaction with his trial counsel’s performance during the trial court proceedings. In
fact, the record generally exhibits that notwithstanding Brewer’s repeated failure to
comply with court orders and instructions, his trial counsel negotiated a favorable plea
agreement and provided a competent argument concerning the propriety of community
control in lieu of prison. Ultimately, however, his trial counsel could not persuade the
court to overlook Brewer’s continued noncompliance with court orders and instructions.
{¶24} Under these circumstances, Brewer cannot establish prejudice from his
counsel’s allegedly deficient performance during sentencing. Therefore, his ineffective-
assistance assignment of error fails. See, e.g., State v. Ramos, 11th Dist. Geauga No.
2007-G-2794, 2008-Ohio-3738, ¶ 29, 33 (claim of ineffective assistance of counsel
based in part on trial counsel’s failure to review presentence investigative report
rejected); State v. Barnes, 8th Dist. Cuyahoga No. 94025, 2010-Ohio-4674, ¶ 46 (trial
counsel’s failure to read presentence investigation report or request additional time to
do so before sentencing did not constitute ineffective assistance because the record did
not establish prejudicial error). We overrule Brewer’s first assignment of error.
Meigs App. No. 14CA1 10
B. Prison Sentence
{¶25} In his second assignment of error, Brewer asserts that the trial court
abused its discretion when it sentenced him to serve a near maximum prison sentence
of seven years.
{¶26} Initially, we must determine the correct standard of review in felony
sentencing cases. “Prior to Foster, [109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470],
there was no doubt regarding the appropriate standard for reviewing felony sentences.
Under the applicable statute, appellate courts were to ‘review the record, including the
findings underlying the sentence or modification given by the sentencing court. * * * The
appellate court’s standard for review [was] not whether the sentencing court abused its
discretion. R.C. 2953.08(G)(2).” State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912,
896 N.E2d 124, ¶ 9. “The statute further authorized a court of appeals to ‘take any
action * * * if it clearly and convincingly finds either of the following: (a) That the record
does not support the sentencing court’s findings under division (B) or (D) of section
2929.13, division (E)(4) of section 2929.14, or division (H) of section 2929.20 of the
Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary
to law.’ Former R.C. 2953.08(G)(2), 2004 Am.Sub.H.B. No. 473, 150 Ohio Laws, Part
IV, 5814.” Id. at ¶ 10.
{¶27} In Foster, the Supreme Court of Ohio declared certain provisions of the
felony sentencing statutes unconstitutional and excised them because they required
judges to make certain factual findings before imposing maximum, non-minimum, or
consecutive sentences. The Supreme Court held that insofar as former R.C.
Meigs App. No. 14CA1 11
2953.08(G), referred to the severed unconstitutional judicial findings provisions, it no
longer applied. Id. at ¶ 99.
{¶28} Following Foster, appellate districts applied different standards of review
in felony sentencing cases. Kalish at ¶ 3. In Kalish, the Supreme Court of Ohio
attempted to resolve the conflicting standard, and a three-judge plurality held that based
on the court’s previous opinion in Foster, “appellate courts must apply a two-step
approach when reviewing felony sentences. First, they must examine the sentencing
court’s compliance with all applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law. If this first
prong is satisfied, the trial court’s decision in imposing the term of imprisonment is
reviewed under the abuse-of-discretion standard.” Id. at ¶ 26. A fourth judge concurred
in judgment only and advocated a differing standard based on which statutes were
being challenged. Id. at ¶ 27-42 (Willamowski, J., concurring). The remaining three
judges joined the author of the court’s decision in Foster in an opinion that stated Foster
did not modify the standard for appellate review of felony sentences set forth in R.C.
2953.08, which did not include an abuse-of-discretion standard. Id. at ¶ 43-68
(Lanzinger, J., dissenting).
{¶29} In the wake of Kalish, most appellate courts, including this one, followed
the two-step standard of review specified by the plurality, even though it had not
garnered the support of a majority of the Supreme Court. See, e.g., State v. Tolle, 4th
Dist. Adams No. 13CA964, 2013-Ohio-5568, ¶ 22.
{¶30} Following Kalish, however, the United States Supreme Court held contrary
to Foster, that it is constitutionally permissible for states to require judges rather than
Meigs App. No. 14CA1 12
juries to make findings of fact before imposing consecutive sentences. Oregon v. Ice,
555 U.S. 160, 164, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009). The Supreme Court of Ohio
then held that the sentencing provisions it ruled unconstitutional in Foster remained
invalid following Ice unless the General Assembly enacted new legislation requiring the
judicial findings. State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d 768,
paragraphs two and three of the syllabus. Thereafter, the General Assembly enacted
2011 Am.Sub.H.B. No 86 (“H.B. 86”), which revived some of the judicial fact-finding
requirements for sentences and reenacted the felony sentencing standard of review in
R.C. 2953.08(G).
{¶31} In light of these quickly changing circumstances, many appellate courts
have abandoned the standard of review set forth in the Kalish plurality and returned to
the standard set forth in the statute. Recently, in State v. Bever, 4th Dist. Washington
No. 13CA21, 2014-Ohio-600, ¶ 13, the lead opinion espoused the view that we should
adopt the holdings of those other appellate districts that have addressed the issue and
hold that the abuse-of-discretion part of the Kalish test no longer controls. In that case,
the author of this opinion concurred in judgment because the appeal was manifestly
governed by the standard of review in R.C. 2953.08(G)(2), so we did not need to
address the viability of the second part of the standard of review set forth in Kalish. Id.
at ¶ 24 (Harsha, J., concurring in judgment only)3; see also State ex rel. Asti v. Ohio
Dept. of Youth Servs., 107 Ohio St. 3d 262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 34,
quoting PDK Laboratories, Inc. v. United States Drug Enforcement Administration
(D.C.Cir.2004), 362 F.3d 786, 799 (Roberts, J., concurring in part and in the judgment)
(“ ‘This is a sufficient ground for deciding this case, and the cardinal principle of judicial
3
Judge McFarland also concurred in judgment only to the lead opinion in Bever.
Meigs App. No. 14CA1 13
restraint—if it is not necessary to decide more, it is necessary not to decide more—
counsels us to go no further’ ”).
{¶32} Here, however, Brewer does not assert that the trial court’s seven-year
sentence is contrary to law. Nor does he suggest that his appeal is based on any of the
grounds specified in R.C. 2953.08(A). Instead, he argues simply that the trial court’s
imposition of a seven-year sentence constituted an abuse of discretion under the
second part of the Kalish test. Therefore, the issue of whether the Kalish test remains
viable is directly before us in this appeal.
{¶33} Upon consideration, we join the growing number of appellate districts that
have abandoned the Kalish plurality’s second-step abuse-of-discretion standard of
review; when the General Assembly reenacted R.C. 2953.08(G)(2), it expressly stated
that “[t]he appellate court’s standard of review is not whether the sentencing court
abused its discretion.” See generally State v. White, 1st Dist. Hamilton No. C-130114,
2013-Ohio-4225, ¶ 9 (“we cannot justify applying an abuse of discretion standard where
the legislature has explicitly told us that the standard of review is not an abuse of
discretion. Thus, henceforth, we will apply the statutory standard rather than the Kalish
plurality framework to our review of felony sentences”); State v. Scates, 2d Dist. Clark
No. 2013-CA-36, 2014-Ohio-418, ¶ 11 (“Kalish’s two-step approach no longer applies to
appellate review of felony sentences”); State v. Tammerine, 6th Dist. Lucas No. L-13-
1081, 2014-Ohio-425, ¶ 10 (“Given recent legislative action in Ohio, culminating in the
passage of a new statute directly addressing appellate court felony sentence review and
a growing body of recent appellate cases applying the new statutory parameters, we are
no longer utilizing the former Kalish approach”); State v. Venes, 2013-Ohio-1891, 992
Meigs App. No. 14CA1 14
N.E.2d 453 (8th Dist.), ¶ 10 (“With the basis for the decision in Kalish no longer valid,
and given that Kalish had questionable precedential value in any event, we see no
viable reasoning for continuing to apply the standard of review used in that case”); State
v. Ayers, 10th Dist. Franklin No. 13AP-371, 2014-Ohio-276, ¶ 8, quoting State v. Allen,
10th Dist. Franklin No. 10AP-487, 2011-Ohio-1757, ¶ 21 (“ ‘since Kalish, this court has *
* * only applied the contrary-to-law standard of review’ ”); State v. Waggoner, 12th Dist.
Butler No. CA2013-02-027, 2013-Ohio-5204, ¶ 6, quoting State v. Crawford, 12th Dist.
Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6 (“we recently stated that ‘rather
than continue to apply the two-step approach as provided by Kalish’ in reviewing felony
sentencing, ‘the standard of review set forth in R.C. 2953.08(G)(2) shall govern all
felony sentences’ ”).
{¶34} To be sure, as Judge Froelich pointed out in his concurring opinion in
State v. Rodeffer, 2d Dist. Montgomery Nos. 25574 et seq., 2013-Ohio-5759, ¶ 45
(Froelich, J., concurring), it can be asserted that when an appeal is not made under
R.C. 2953.08(A), (B), or (C), the standard of review set forth in R.C. 2953.08(G)(2) does
not apply from the outset. That is, under this view, there may be appeals in felony
sentence cases that are not governed by the statute at all.
{¶35} Nevertheless, as Judge Hall pointed out in his concurring opinion in
Rodeffer, this strict interpretation of R.C 2953.08 was not adopted by the Supreme
Court in Kalish, where “all seven jurists agreed that former R.C. 2953.08(G)(2) applied
to all felony sentencing.” Id. at ¶ 51 (Hall, J., concurring). Indeed, under the views of
the two three-Justice opinions in Kalish—the plurality and the dissent, the manifest
Meigs App. No. 14CA1 15
conclusion is that “R.C. 2953.08, had it not been for the severance of the statute by
Foster, was intended to apply to all felony sentencing.” Id. at ¶ 53 (Hall, J., concurring).
{¶36} In addition, we must acknowledge that Kalish was merely a plurality
opinion. Its standard of review was never made a part of the court’s syllabus. See
Ayers at ¶ 8, noting that the Tenth District Court of Appeals has historically not applied
the abuse-of-discretion prong of the Kalish test. Moreover, the basis for the Kalish
plurality holding was extinguished when the legislature reenacted R.C. 2953.08, in H.B.
86. Under these circumstances, there is no longer any basis to apply the abuse-of-
discretion prong of the standard of review set forth in the Kalish plurality opinion
because it is based on precedent that has since been abrogated.
{¶37} R.C. 2953.08(G)(2) specifies that an appellate court may increase,
reduce, modify, or vacate and remand a challenged felony sentence if the court clearly
and convincingly finds either that “the record does not support the sentencing court’s
findings” under the specified statutory provisions or “the sentence is otherwise contrary
to law.” As noted previously, under this standard the appellate court does not determine
whether the trial court abused its discretion. R.C. 2953.08(G)(2).
{¶38} Applying this standard of review, as Brewer concedes we must, his seven-
year sentence for burglary is not clearly and convincingly contrary to law. Although the
plurality opinion in Kalish no longer controls our standard of review of felony sentences,
“it may still be utilized in the course of determining whether a sentence is clearly and
convincingly contrary to law.” Tammerine, 2014-Ohio-425, at ¶ 15. Consequently, a
sentence is generally not contrary to law if the trial court considered the R.C. 2929.11
purposes and principles of sentencing as well as the R.C. 2929.12 seriousness and
Meigs App. No. 14CA1 16
recidivism factors, properly applied postrelease control, and imposed a sentence within
the statutory range. Id., citing Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d
124, at ¶ 18. The sentence must also comply with any specific statutory requirements
that apply, e.g. a mandatory term for a firearm specification, certain driver's license
suspensions, etc.
{¶39} In its amended sentencing entry the trial court specified that it considered
the principles and purposes of sentencing under R.C. 2929.11, balanced the
seriousness and recidivism factors under R.C. 2929.12, and properly applied
postrelease control. In addition, the trial court imposed a seven-year prison sentence
for Brewer’s second-degree felony conviction for burglary, which was within the
statutory range of two to eight years. R.C. 2929.14(A)(2). Therefore, Brewer’s seven-
year sentence is not clearly and convincingly contrary to law.
{¶40} Brewer’s argument under his second assignment of error is restricted to
contending that the trial court abused its discretion in imposing a seven-year sentence
because the reasons it cited for departing from the state’s recommended four-year
prison term were unreasonable, arbitrary, and capricious. But as previously discussed,
this second part of the Kalish test is no longer applicable.
{¶41} Moreover, even assuming the second step of the Kalish test remains
viable, Brewer’s argument would still fail. The trial court’s reliance on Brewer’s failure to
follow court orders and instructions, including engaging in criminal conduct while out on
bond pending sentencing, justified the imposition of a near-maximum sentence. In
addition, the PSI recommended that Brewer be given the maximum term based upon
Meigs App. No. 14CA1 17
the pertinent statutory factors. The trial court’s seven-year sentence was neither
unreasonable, arbitrary, nor unconscionable.
{¶42} Because Brewer’s challenge to his felony sentence is meritless, we
overrule his second assignment of error.
C. Restitution
{¶43} In his third assignment of error, Brewer argues that the trial court erred
and abused its discretion when it ordered him to pay restitution of $1,000 to the victim
without first inquiring of Brewer’s ability to pay as required by R.C. 2929.19(B)(5).
{¶44} R.C. 2929.18(A)(1) authorizes a trial court to order a felony offender to
make restitution to the victim of the offender’s crime in an amount based on the victim’s
economic loss. Before imposing this financial sanction, the trial court “shall consider the
offender’s present and future ability to pay” the sanction. R.C. 2929.19(B)(5). A trial
court abuses its discretion in imposing a financial sanction without conducting even a
cursory inquiry into the offender’s present and future means to pay the amount
imposed. State v. Dennis, 4th Dist. Highland No. 13CA6, 2013-Ohio-5633, ¶ 14.
{¶45} We review the totality of the record to determine whether this statutory
requirement has been satisfied, so that even if the trial court’s sentencing entry does not
specify that the court considered the defendant’s ability to pay, the record may indicate
that the court did so. State v. Bulstrom, 2013-Ohio-3582, 997 N.E.2d 162, ¶ 15 (4th
Dist.).
{¶46} Here, the trial court’s amended sentencing entry specified that the court
“determined that the Defendant has the present and/or future ability to pay restitution.”
In that entry, the trial court further noted that it considered the record of the case. The
Meigs App. No. 14CA1 18
record included Brewer’s statements that he was 28, suffered from no major physical or
mental problems, and was an experienced carpenter and forklift operator. In addition,
he posted $500 for one bond and $110 for another bond. Therefore, the record
establishes that the trial court sufficiently considered Brewer’s present and future ability
to pay restitution. The mere fact that the trial court found him indigent and appointed
counsel for him did not preclude the same court from finding that he had the ability to
pay his burglary victim restitution of $1,000 in the future. Bulstrom at ¶ 17. Therefore,
we overrule Brewer’s third assignment of error.
IV. CONCLUSION
{¶47} Having overruled Brewer’s assignments of error, we affirm the judgment of
the trial court.
JUDGMENT AFFIRMED.
Meigs App. No. 14CA1 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.