State v. Potter , 2021 Ohio 3502 ( 2021 )

[Cite as State v. Potter, 2021-Ohio-3502.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
State of Ohio Court of Appeals No. F-21-002
Appellee Trial Court No. 19CR122
v.
Danette L. Potter DECISION AND JUDGMENT
Appellant Decided: September 30, 2021
*****
Scott A. Haselman, Fulton County Prosecuting Attorney,
for appellee.
Karin L. Coble, for appellant.
*****
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, Danette Potter, appeals the judgment of the Fulton County Court
of Common Pleas, sentencing her to 180 days in jail, suspending the sentence, and
placing her on two years of community control after she pled guilty to one count of
passing bad checks.
A. Facts and Procedural Background
{¶ 2} On December 16, 2019, appellant was indicted on one count of passing bad
checks in violation of R.C. 2913.11(B), a felony of the fifth degree. The charge related to
appellant’s use of a check to pay a $1,000 veterinarian bill to Countryside Animal Clinic
sometime between June 7 and June 10, 2019. On April 1, 2020, appellant entered a plea
of not guilty to the sole charge in the indictment. Thereafter, the matter proceeded
through pretrial discovery and motion practice.
{¶ 3} Following successful plea negotiations, appellant appeared before the trial
court for a change of plea hearing on November 3, 2020. At the hearing, appellant
entered a guilty plea to the amended charge of passing bad checks in violation of R.C.
2913.11(B), a misdemeanor of the first degree.1 The trial court accepted appellant’s plea,
found her guilty of the amended charge, and referred the matter to the Adult Probation
Department for the preparation of a presentence investigation report.
{¶ 4} One month later, on December 22, 2020, appellant came before the trial
court for sentencing. At the sentencing hearing, the state acknowledged that appellant
1
Due to a malfunction with the trial court’s audio recording equipment, there is no
transcript of the plea hearing in the record.
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had already paid the $1,000 in restitution owed to Countryside Animal Clinic, and stated:
“So, as far as the State is concerned, [appellant] does not owe them any restitution.”
{¶ 5} Thereafter, appellant’s trial counsel and appellant made statements in
mitigation. Trial counsel informed the court:
Throughout this case, Ms. Potter has emphasized to me not always even in
relation to the case how much she has struggled. And I know a lot of
individuals struggle, but since her divorce she has faced largely financial
[ruin]. Her field, attending to horses and rodeo, has been devastated both
by recent weather events that have increased the price of hay, as well as by
COVID, which has collapsed the rodeo [circuit]. Moreover, she is in ill
health as reflected by the PSI, and moreover, is still recovering from
COVID, which she had since we were in Court last. She spoke to me
passionately before Court about her struggle in keeping her horses alive
when she herself was bed bound for 3 weeks, trying to feed these horses
without assistance.
For her part, appellant explained to the court that she never intended her check to bounce,
and insisted that she thought there were adequate funds in her account to cover the $1,000
check.
{¶ 6} After considering the foregoing statements and the presentence investigation
report prepared in this case, the trial court ordered appellant to serve 180 days in jail, but
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stated that the jail sentence “will be suspended and reserved and [appellant] will be
placed on community control for a period of two years.” The court went on to articulate
several conditions of appellant’s community control, which included making payments
totaling $2,495.46 to Countryside Animal Clinic. In order to assure these payments are
made, the trial court stated:
And I want [appellant] to find some form of meaningful employment
outside of taking care of those horses so that we can earn some money to
start making these payments. If [you’re] actually making money with these
horses, I mean if that’s something that [you’re] doing and [you’re] able to
maintain somewhat, then I am fine with that, but I don’t want this to simply
be an expensive hobby where you earn nothing and then say to the Court “I
don’t have any money.” We are running into that enough where people
simply don’t want to work.
{¶ 7} Thereafter, appellant’s trial counsel objected to the trial court’s order
directing appellant to make payments to Countryside Animal Clinic. Counsel questioned
whether the trial court had the authority to grant a judgment, but was interrupted by the
trial court, who stated: “I didn’t grant a judgment. I said she had to make restitution.”
Trial counsel then asked the court to note the objection for the record, and the sentencing
hearing concluded.
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{¶ 8} Following the sentencing hearing, the trial court prepared a sentencing entry.
In the entry, the court articulated its sentence and ordered appellant to pay the costs of
prosecution, costs of court appointed counsel, and court costs. The court specifically
noted its finding of appellant’s ability to pay such costs in the entry. In addition, the trial
court reiterated several special conditions of appellant’s community control that it
initially raised during the sentencing hearing. Notably, the trial court omitted any
language about making payments to Countryside Animal Clinic, but retained the
condition requiring appellant to “find and maintain gainful employment within 6 months
of sentencing.”
{¶ 9} Upon receipt of the trial court’s sentencing entry, appellant filed her timely
notice of appeal.
B. Assignments of Error
{¶ 10} On appeal, appellant assigns the following errors for our review:
Assignment of Error One: The trial court erred in imposing
restitution.
Assignment of Error Two: The trial court’s community control term
requiring employment is unreasonable in these circumstances.
Assignment of Error Three: The trial court’s imposition of the
maximum sentence is an abuse of discretion.
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Assignment of Error Four: The imposition of attorney fees is
contrary to law.
II. Analysis
i. The trial court did not order appellant to make restitution.
{¶ 11} In her first assignment of error, appellant argues that the trial court erred in
ordering her to pay restitution to Countryside Animal Clinic. Specifically, appellant
takes issue with the statement made by the trial court at sentencing requiring her to make
payments to Countryside Animal Clinic in the amount of $2,495.46. Noting the state’s
acknowledgement that she already paid restitution to Countryside Animal Clinic (and
therefore owes no further restitution related to this case), and referencing the fact that the
trial court’s sentencing entry is silent with respect to these additional payments, appellant
asserts that “it is unclear whether the trial court intended the $2,495.46 to be ‘restitution,’
or whether it is a term of community control.” As such, appellant asks us to “formally
declare that despite the court’s verbal imposition of this payment at the sentencing
hearing, no restitution or term of community control actually exists as the judgment entry
is silent.”
{¶ 12} For its part, the state asserts that the trial court did not impose restitution.
The state recognizes that the trial court referenced a restitution order at the sentencing
hearing, but acknowledges that such an order is not contained in the court’s sentencing
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entry. Therefore, the state contends that the trial court did not make a restitution order in
this case.
{¶ 13} It is an axiomatic rule that a trial court speaks through its journal entries.
State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. Therefore,
“[i]f the journal entry and the judge’s comments conflict, the journal entry controls.”
State v. Hankins, 89 Ohio App.3d 567, 569, 626 N.E.2d 965 (3d Dist.1993). Relying
upon this axiomatic rule, the Twelfth District appropriately found that there is no order of
restitution for it to review on appeal when a trial court verbally orders restitution at the
sentencing hearing, but fails to mention restitution in its sentencing entry. State v.
Workman, 12th Dist. Clermont No. CA2009-07-039, 2010-Ohio-1011, ¶ 11-12.
{¶ 14} Here, like in Workman, the trial court referenced restitution at the
sentencing hearing, but did not order appellant to pay restitution in its sentencing entry.
Further, it is unclear from the sentencing hearing transcript whether the trial court
intended to characterize the $2,495.46 in payments to Countryside Animal Clinic as
restitution or a condition of community control. When read in its context, it seems as
though the trial court intended the latter. Nonetheless, to the extent the trial court wished
to characterize the payments as restitution, its failure to include the order in its sentencing
entry means that no such restitution order applies in this case.
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{¶ 15} Given our determination that appellant is not required to pay restitution in
this case, we disagree with appellant’s proposition that the trial court erred in imposing
restitution. Accordingly, appellant’s first assignment of error is not well-taken.
ii. The trial court’s employment condition is reasonable in this case.
{¶ 16} In appellant’s second assignment of error, she argues that the trial court’s
imposition of a condition of community control requiring her to seek and obtain
employment is unreasonable under the circumstances of this case. Appellant takes issue
with the trial court’s condition, because she asserts that she already has income-
generating employment via her horse business.
{¶ 17} At the outset, we reject the factual predicate upon which appellant’s
argument is based, namely that the trial court imposed a condition upon appellant that
requires her to obtain employment in addition to her alleged self-employment. Our
review of the sentencing transcript reveals that the trial court was concerned with
appellant securing employment, of any kind, that would generate an income sufficient to
meet appellant’s financial needs. The court did not exclude appellant’s horse business as
a means of satisfying its employment condition, so long as it actually generates an
income and is not simply an “expensive hobby.” With this observation in mind, we will
proceed to examine the merits of appellant’s argument.
{¶ 18} Under R.C. 2929.25(C)(2), a trial court sentencing an offender to
community control for a misdemeanor offense must “require as a condition of any
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community control sanction that the offender abide by the law and not leave the state
without the permission of the court or the offender’s probation officer.” Additionally, the
court is permitted to “impose additional requirements on the offender” in order to serve
the interest of doing justice, rehabilitate the offender, and ensure the offender’s good
behavior. Id. The offender’s compliance with these additional requirements is treated as
a condition of the community control sanction imposed by the trial court. Id.{¶ 19} A trial court enjoys broad discretion in imposing conditions of community
control under R.C. 2929.25 and we will not reverse the trial court’s imposition of such
conditions absent a finding of an abuse of discretion. State v. Hause, 12th Dist. Warren
No. CA2008-05-063, 2009-Ohio-548, ¶ 7, citing City of Garfield Heights v. Tvergyak,
8th Dist. Cuyahoga No. 84825, 2005-Ohio-2445, ¶ 5. An abuse of discretion connotes
that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 20} While a trial court has discretion in imposing community control
conditions, such discretion is not limitless. State v. Jones, 49 Ohio St.3d 51, 52, 550
N.E.2d 469 (1990). The conditions imposed must further the three statutory objectives of
misdemeanor community control (i.e. doing justice, rehabilitating the offender, and
insuring good behavior) and they may not be so broad that they unnecessarily impinge
upon the probationer’s liberty. Id. In determining whether a condition furthers the
objectives of community control, we consider “whether the condition (1) is reasonably
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related to rehabilitating the offender, (2) has some relationship to the crime convicted,
and (3) relates to conduct which is criminal or reasonably related to future criminality and
serves the statutory ends of probation.” Id. at 53.
{¶ 21} Upon consideration of the record, we find the trial court appropriately
ordered appellant to seek and obtain employment as a condition of her community
control. Initially, we note that the employment condition is a nonresidential sanction that
is expressly authorized in the Revised Code. See R.C. 2929.27(A)(10) (permitting a
court that is sentencing an offender for a misdemeanor to impose nonresidential sanctions
including the “requirement that the offender obtain employment”). Further, we find that
the employment condition is reasonably related to the goal of rehabilitating appellant,
bears a relationship to the offense of passing bad checks, and relates to appellant’s
conduct that gave rise to her conviction.
{¶ 22} Appellant’s propensity to pass bad checks in the future will likely diminish
if she improves her economic situation by securing gainful employment. Indeed,
employment (and the compensation associated therewith) is perhaps the most meaningful
step appellant could take to prevent her from being tempted to pass a bad check in the
future. See State v. Cauthen, 1st Dist. Hamilton No. C-130475, 2015-Ohio-272, ¶ 15
(“Requiring an offender to work can be an important step in her rehabilitation.
Supporting oneself by legal employment helps end the financial incentive of criminal
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behavior and can, by itself, be salutary, encouraging a sense of accomplishment and
achievement in an offender seeking rehabilitation.”).
{¶ 23} Because the trial court’s community control condition requiring appellant
to seek and obtain employment is specifically authorized by R.C. 2929.27(A)(10) and is
related to the specific facts of this case, we find that the trial court did not abuse its
discretion in imposing it. Accordingly, appellant’s second assignment of error is not
well-taken.
iii. The trial court’s sentence was properly imposed.
{¶ 24} In her third assignment of error, appellant argues that the trial court abused
its discretion by sentencing her to the maximum sentence, because she did not commit
the worst form of the offense of passing bad checks and has no criminal history that
would support the imposition of a maximum sentence.
{¶ 25} We review a misdemeanor sentence for an abuse of discretion. State v.
Johnson, 6th Dist. Lucas Nos. L-20-1164, L-20-1165, 2021-Ohio-1614, ¶ 22, citing State
v. Perz, 173 Ohio App.3d 99, 2007-Ohio-3962, 877 N.E.2d 702, ¶ 26 (6th Dist.). When
imposing a sentence for a misdemeanor offense, a trial court must consider the purposes
and principles of misdemeanor sentencing as set forth in R.C. 2929.21, as well as the
sentencing factors set forth in R.C. 2929.22. Under R.C. 2929.21, a trial court “shall be
guided by the overriding purposes of misdemeanor sentencing,” which are to protect the
public from future crime by the offender and to punish the offender. To achieve those
purposes, R.C. 2929.21 provides that a trial court “shall consider [1] the impact of the
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offense upon the victim and the need for changing the offender’s behavior, [2]
rehabilitating the offender, and [3] making restitution to the victim * * *.” When a
misdemeanor sentence is imposed within the statutory limits, a reviewing court will
presume that the judge followed these statutes, absent evidence to the contrary.
State/Division of Wildlife v. Coll, 6th Dist. Sandusky No. S-16-022, 2017-Ohio-7270, ¶
23, citing Toledo v. Reasonover, 5 Ohio St.2d 22, 213 N.E.2d 179 (1965), paragraph one
of the syllabus.
{¶ 26} Here, appellant was convicted of a misdemeanor of the first degree, which
is punishable by up to 180 days in jail. R.C. 2929.24(A)(1). As such, the trial court’s
180-day sentence is within the statutory range, and we presume that the sentence was
proper. State v. Jones, 6th Dist. Lucas No. L-16-1014, 2017-Ohio-413, ¶ 14.
{¶ 27} Appellant does not present evidence to rebut this presumption. Further, the
trial court indicated its consideration of the principles and purposes of misdemeanor
sentencing and the seriousness and recidivism factors under R.C. 2929.20 and 2929.21,
respectively, prior to imposing its sentence. Nonetheless, appellant argues that there was
no evidence to show that she committed the worst form of the offense of passing bad
checks or that the maximum sentence was necessary to deter her from future offenses.
{¶ 28} In support of her argument, appellant relies upon R.C. 2929.22(C), which
states that a court may only impose the maximum sentence “upon offenders who commit
the worst forms of the offense or upon offenders whose conduct and response to prior
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sanctions for prior offenses demonstrate that the imposition of the longest jail term is
necessary to deter the offender from committing a future crime.” Appellant’s reliance
upon R.C. 2929.22(C) is misplaced.
{¶ 29} In Jones, we found that sentencing courts are not bound by the judicial
fact-finding component of R.C. 2929.22(C) or the limitation contained therein that only
those offenders who have committed the worst forms of an offense may be given the
maximum sentence. Id. at ¶ 13, citing State v. Nuby, 7th Dist. Mahoning No. 16MA0036,
2016-Ohio-8157, ¶ 8-9, State v. Black, 1st Dist. Hamilton No. C-060861, 2007-Ohio-
5871, ¶ 19–21, and State v. Simms, 10th Dist. Franklin No. 05AP-806, 2006-Ohio-2960, ¶
20. Therefore, the trial court was not required to find that appellant committed the worst
form of the offense of passing bad checks or that a maximum sentence was necessary to
deter her from committing future offenses before sentencing her to the maximum
sentence.
{¶ 30} In light of the foregoing, we find that the trial court did not abuse its
discretion in sentencing appellant to 180-days in jail. Accordingly, appellant’s third
assignment of error is not well-taken.2
2
It is noteworthy that while the trial court imposed the maximum sentence, it then
suspended the sentence in its entirety. Therefore, appellant will not serve any jail time so
long as she complies with the conditions of her community control.
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iv. The trial court acted contrary to law when it ordered appellant
to pay the costs of appointed counsel for the first time in its
sentencing entry, without first finding that appellant had
the ability to pay such costs and imposing the costs at
the sentencing hearing.
{¶ 31} In appellant’s fourth assignment of error, she argues that the trial court
erred in ordering her to pay her court-appointed counsel fees.
{¶ 32} On appeal we review whether the imposition of costs was contrary to law.
State v. Tucker, 6th Dist. Wood No. WD-16-063, 2018-Ohio-1869, ¶ 36. “[W]here a
court imposes the discretionary costs of supervision, confinement, or assigned counsel, ‘it
must affirmatively find that the defendant has, or reasonably may be expected to have,
the ability to pay.’” State v. Connin, 6th Dist. Fulton No. F-20-005, 2020-Ohio-6867, ¶
26, quoting State v. Brown, 6th Dist. Lucas No. L-18-1140. 2020-Ohio-1650, ¶ 37.
{¶ 33} At the sentencing hearing in this case, the trial court informed appellant
that she would be “required to pay any costs.” The court did not delineate those costs,
nor did it make a finding that appellant is able to pay the costs. However, the trial court
was more specific in its sentencing entry, stating: “The Court having considered the
record in this case including the PSI, finds the Defendant does have the ability to pay the
financial sanctions hereinafter imposed. Defendant is ordered to pay all costs of
prosecution, including court appointed counsel fees.”
{¶ 34} In State v. Lewis, 6th Dist. Lucas No. L-18-1069, 2019-Ohio-3929, we held
that a trial court may not impose discretionary costs in its sentencing entry if it does not
first make a finding of appellant’s ability to pay and impose those costs at the sentencing
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hearing. Id. at ¶ 54, citing State v. Temple, 6th Dist. Lucas No. L-18-1070, 2019-Ohio-
3503, ¶ 13; see also State v. Easter, 2016-Ohio-7798, 74 N.E.3d 760, ¶ 17 (2d Dist.)
(concluding that it was error for the sentencing court to order the defendant to pay court-
appointed counsel fees in the final judgment entry without first making a finding that the
defendant had an ability to pay the fees, and without providing notification of the
imposition of those fees at the sentencing hearing).
{¶ 35} Here, the trial court failed to find that appellant has the ability to pay the
costs of appointed counsel at the sentencing hearing. Further, the trial court did not
clearly impose the costs of appointed counsel at sentencing when it ambiguously ordered
appellant to pay “any costs.” Consistent with our decision in Lewis, we find that the trial
court’s imposition of the costs of appointed counsel for the first time in the sentencing
entry was contrary to law.
{¶ 36} Accordingly, appellant’s fourth assignment of error is well-taken, and the
trial court’s imposition of the costs of appointed counsel is vacated.
III. Conclusion
{¶ 37} In light of the foregoing, the judgment of the Fulton County Court of
Common Pleas is affirmed, in part, and reversed, in part. We hereby vacate the trial
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court’s imposition of the costs of appointed counsel, and affirm the remainder of the trial
court’s judgment. The parties are ordered to split the costs of this appeal under App.R.
24.
Judgment affirmed, in part,
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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