State v. Anderson , 2016 Ohio 7252 ( 2016 )

[Cite as State v. Anderson, 2016-Ohio-7252.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, :
Case No. 15CA3696
v. :
DECISION AND
JAMES D. ANDERSON, : JUDGMENT ENTRY
Defendant-Appellant. : RELEASED 09/30/2016
APPEARANCES:
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Shane A. Tieman, Scioto County
Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
David A. Sams, West Jefferson, Ohio, for Appellant.
Hoover, J.
{¶ 1} A jury found the defendant-appellant, James D. Anderson (“Anderson”), guilty of
various counts of Burglary and Theft, two counts of Receiving Stolen Property, and one count of
Failure to Comply with an Order or Signal of a Police Officer. In this appeal, Anderson contends
that the trial court violated his right to a speedy trial. In addition, Anderson contends that the trial
court abused its discretion in its restitution order. For the following reasons, Anderson’s
assignments of error are overruled. The judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 2} Anderson’s indictment contained twenty different counts as follows. The verdicts
of the jury are listed beside each count.
Scioto App. No. 15CA3696 2
COUNT CHARGE DEGREE OF OHIO REVISED VERDICT
OFFENSE CODE SECTION
1 Burglary F2 2911.12(A)(2), Guilty
2911.12(D)
2 Theft F5 2913.02(A)(1), Guilty
2913.02(B)(2)
3 Burglary F2 2911.12(A)(2), Guilty
2911.12(D)
4 Theft F5 2913.02(A)(1), Guilty
2913.02(B)(2)
5 Burglary F2 2911.12(A)(2), Not Guilty
2911.12(D)
6 Theft F5 2913.02(A)(1), Not Guilty
2913.02(B)(2)
7 Burglary F2 2911.12(A)(2), Guilty
2911.12(D)
8 Theft F5 2913.02(A)(1), Guilty
2913.02(B)(2)
9 Burglary F2 2911.12(A)(2), Not Guilty
2911.12(D)
10 Theft F5 2913.02(A)(1), Not Guilty
2913.02(B)(2)
11 Burglary F2 2911.12(A)(2), Guilty
2911.12(D)
12 Grand Theft F4 2913.02(A)(1), Guilty
2913.02(B)(2)
13 Burglary F2 2911.12(A)(2), Guilty
2911.12(D)
14 Grand Theft F3 2913.02(A)(1), Not Guilty
when the 2913.02(B)(4)
Property is a
Firearm or
Dangerous
Ordnance
15 Theft F5 2913.02(A)(1), Guilty
2913.02(B)(2)
Scioto App. No. 15CA3696 3
16 Grand Theft of F4 2913.02(A)(1), Guilty
a Motor 2913.02(B)(5)
Vehicle
17 Receiving F4 2913.51(A), Guilty
Stolen 2913.51(C)
Property
18 Receiving F4 2913.51(A), Guilty
Stolen 2913.51(C)
Property
19 Failure to F3 2921.331(B), Guilty
Comply with 2921.331(C)(5)(a)(ii)
an Order or
Signal of a
Police Officer
20 Receiving F5 2913.51(A), ________
Stolen 2913.51(C)
Property
Anderson and three other co-defendants were named in the indictment, all receiving letter
designations. Anderson was designated as “A”; Kermit Anderson was designated as “B”; Ariana
Elliott was designated as “C”; and Tawana J. Giffen was designated as “D”. Although Count 20
was included in Anderson’s indictment; only Kermit Anderson “B” was alleged to have
committed the crime of Receiving Stolen Property.
{¶ 3} The underlying facts comprising the allegations of the indictment are irrelevant to
the assigned errors before us; therefore, we will proceed with primarily examining the procedural
history of the case rather than the factual history.
{¶ 4} The State of Ohio (“State”) and Anderson agree that Anderson was arrested on
November 13, 2014. On November 14, 2014, Anderson was arraigned in the Portsmouth
Municipal Court. On November 19, 2014, he was bound over to the grand jury. On December
17, 2014, he was indicted with charges as set forth above in the table. Although Anderson was
scheduled to be arraigned on January 7, 2015, he was actually arraigned on the charges set forth
in the indictment on January 8, 2015.
Scioto App. No. 15CA3696 4
{¶ 5} According to the State’s Information to the Court, which was filed on February 20,
2015, Anderson electronically submitted his Motion for Discovery to the State on January 9,
2015. Motions for discovery are now routinely submitted through the Matrix Portal utilized by
the Scioto County Prosecutor’s office and the defense bar; therefore, Anderson’s Motion for
Discovery is not actually time-stamped on January 9, 2015. On January 12, 2015, Anderson
filed: (1) a Motion to Preserve Evidence, and (2) a Request for Bill of Particulars and a Notice of
Intent to Use Evidence. The State filed its response to discovery via web portal and via the Clerk
of Courts office on January 16, 2015. The actual response to defendant’s request for discovery,
however, states in the certificate of service that it was filed and served electronically on January
14, 2015, upon Anderson’s attorney. Likewise, the State filed its Bill of Particulars on January
16, 2015, but the document’s certificate of service indicates that it was filed and served
electronically on January 12, 2015, upon Anderson’s attorney.
{¶ 6} On January 23, 2015, the trial court granted Anderson’s Motion to Preserve
Evidence.
{¶ 7} On January 28, 2015, the State filed a Supplemental Response to [Anderson’s]
Request for Discovery. On February 6, 2015, the State filed another Supplemental Response to
[Anderson’s] Request for Discovery.
{¶ 8} On February 9, 2015, a jury trial and voir dire commenced. After both sides had
exercised their peremptory challenges, 12 jurors were left on the panel with no alternates. At this
point, the State moved to continue the trial. The State contended that it had until February 18,
2015, in which to bring Anderson to trial in order to comply with the speedy trial statutes. The
trial court stated the following:
Scioto App. No. 15CA3696 5
THE COURT: But you understand that my ability to seat a jury today with 12
people and no alternate if your calculations are wrong on time then that’s a
problem. The bottom line is I’m able to seat a jury, but I don’t have any alternate
today, are you willing to take that risk?
Anderson’s attorney objected to the continuance. Over Anderson’s objection, the trial court
granted the State’s motion and declared a mistrial. The trial court scheduled Anderson’s trial for
February 17, 2015.1
{¶ 9} On February 17, 2015, Anderson’s case came before the trial court again for a jury
trial. On this date, unfortunately, Scioto County “experienced 6 inches of snow resulting in a
level 2 snow emergency and not enough perspective [sic] jurors appeared to allow for the
selection of twelve jurors.” After voir dire, and after the parties exercised their peremptory
challenges, only eleven jurors were left. Both the State and Anderson’s attorney agreed that they
had made every effort to seat a jury; but they were unable to seat twelve jurors. Thus, the trial
court declared a mistrial. The trial court included in its Judgment Entry that “[t]he speedy trial
time, pursuant to R.C. §2945.71, is hereby tolled pursuant to R.C. §2945.72(H).”
{¶ 10} On February 23, 2015, Anderson filed a Motion to Dismiss on the basis that he
had “been held in jail since his arrest on 11/13/2014 and that the triple count provisions of ORC
2945.71(E) apply.” Anderson claimed that he had been held in jail for 294 days, which exceeds
the 270 day period. The State argued that a period of 7 days was tolled due to Anderson’s request
for discovery which was submitted on January 9, 2015, and which was answered seven days
later. The State further argued that the continuance of the first week of trial was “reasonable”
because although twelve jurors were seated, one of the jurors was going to be unavailable the
1
The State’s Proposed Judgment Entry was accepted and executed by the trial court on February 12, 2015. The
Judgment Entry ordered that the matter be continued to January 17, 2015 at 9:00 a.m. This was clearly a
typographical error as that date had already passed; and the transcript of the jury trial was dated February 17, 2015.
Scioto App. No. 15CA3696 6
next week. Although no separate judgment entry appears in the record that denied Anderson’s
Motion to Dismiss, the transcript reveals that the trial court overruled Anderson’s motion to
dismiss; and obviously, the trial court proceeded with the jury trial.
{¶ 11} Thus, the jury trial commenced on February 23, 2015, and continued through
February 25, 2015. Eventually, the jury found Anderson guilty of five counts of Burglary; four
counts of Theft; one count of Grand Theft; one count of Grand Theft of a Motor Vehicle; two
counts of Receiving Stolen Property; and one count of Failure to Comply with an Order or Signal
of Police Officer. The jury found Anderson not guilty of the other counts in the indictment with
the exception of count twenty for which Anderson was not alleged to have committed the crime.
Thus, no verdict was returned for count twenty.
{¶ 12} On February 25, 2015, immediately after trial, Anderson was sentenced. Anderson
was sentenced to an “aggregate sentence [of] 16 years and 48 months, for a total net sentence of
20 years.” Anderson was also ordered to pay the following in restitution: $3,000 to Rick Davis;
$1,000 to Tom and Rhonda Yeager; $12,5002 to Roger Webb and Vicki Bach, subject to an
offset on recovered property; and $204 to Harold Collier. Nowhere in the record does Anderson
object to the restitution orders.
{¶ 13} On March 17, 2015, the trial court filed the judgment entry that set forth the
verdicts of each of the nineteen counts and the respective sentences for each count. It is from this
judgment that Anderson filed a timely appeal.
II. Assignments of Error
{¶ 14} Anderson assigns the following errors for our review:
First Assignment of Error
2
On March 25, 2015, the trial court filed a judgment entry regarding the restitution amount owed to Roger Webb
and Vicki Bach. The trial court determined that the amount “owed to the victims Roger Webb and Vicki Bach is
$6,250 to be paid by the Defendant.”
Scioto App. No. 15CA3696 7
THE TRIAL COURT ERRED BY BRINGING MR. ANDERSON TO
TRIAL AFTER THE 90 DAY DEADLINE FOR A SPEEDY TRIAL
PURSUANT TO R.C. 2945.71(C) AND (E) HAD PASSED.
Second Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION IN ITS
RESTITUTION ORDER.
III. Law and Analysis
A. Standard of Review for Speedy Trial Analysis
{¶ 15} With respect to the first assignment of error, “ ‘[u]pon review of a speedy-trial
issue, a court is required to count the days of delay chargeable to either side and determine
whether the case was tried within applicable time limits.’ ” State v. Bailey, 4th Dist. Ross No.
14CA3461, 2015–Ohio–5483, ¶ 15, quoting State v. Bailey, 4th Dist. Scioto No. 09CA3287,
2010-Ohio-2239, ¶ 56. Appellate review of a trial court’s decision on a motion to dismiss for a
speedy trial violation involves a mixed question of law and fact. State v. James, 4th Dist. Ross
No. 13CA3393, 2014-Ohio-1702, ¶ 23; State v. Smith, 4th Dist. Ross No. 10CA3148, 2011-
Ohio-602, ¶ 18. We will defer to a trial court’s factual findings if some competent and credible
evidence supports them; but we review de novo the court’s application of the law to those facts.
See State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312, ¶ 12; State v. Fisher, 4th Dist.
Ross No. 11CA3292, 2012-Ohio-6144, ¶ 8.
B. Various Events Tolled the Speedy Trial Time
{¶ 16} Anderson argues that the trial court erred by bringing him to trial after the 90 day
deadline for a speedy trial pursuant to R.C. 2945.71(C) and (E) had passed. Anderson contends
that because his trial occurred after his speedy trial time expired the matter should have been
dismissed with prejudice. Although the State concedes that Anderson made a prima facie case of
Scioto App. No. 15CA3696 8
a violation of his speedy trial rights, the State contends that several events tolled the time in
which Anderson had to be brought to trial.
{¶ 17} The Sixth Amendment to the United States Constitution and Section 10, Article I
of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial. This guarantee
is implemented in R.C. 2945.71, which provides the specific time limits within which a person
must be brought to trial. State v. Blackburn, 118 Ohio St.3d 163, 2008–Ohio–1823, 887 N.E.2d
319, ¶ 10.
{¶ 18} R.C. 2945.71 provides that a person against whom a felony charge is pending
shall be brought to trial within 270 days after arrest. Id. at (C)(2). If an accused is in jail in lieu of
bail solely on the pending charge, the statute mandates that each day count as three days for
purposes of speedy trial calculation. Id. at (E). If an accused is not brought to trial within the
statutory time limit, the accused must be discharged. R.C. 2945.73(B). However, the R.C.
2945.71 time limits can be extended for any reason set out in R.C. 2945.72, but those extensions
must be strictly construed against the State. See State v. Alexander, 4th Dist. Scioto No.
08CA3221, 2009-Ohio-1401, ¶ 17; State v. Monroe, 4th Dist. Scioto No. 05CA3042, 2007-Ohio-
1492, ¶ 27.
{¶ 19} “Upon establishing that more than 270 days has passed before trial, a defendant
establishes a prima facie case for dismissal based on a speedy trial violation.” State v. Davis, 4th
Dist. Scioto No. 12CA3506, 2013–Ohio–5311, ¶ 19. Once a defendant presents a prima facie
case for dismissal, then the burden shifts to the State to prove that the limitations have not
expired, either by showing that the time limit was extended by R.C. 2945.72, or by establishing
that the accused is not entitled to the triple count provision in R.C. 2945.71(E). Id.; Carr, 2013–
Ohio–5312 at ¶ 13; State v. McGhee, 4th Dist. Lawrence No. 04CA15, 2005–Ohio–1585, ¶ 39.
Scioto App. No. 15CA3696 9
{¶ 20} The trial time tolling provisions are set forth in R.C. 2945.72, which provides, in
pertinent part, as follows:
The time within which an accused must be brought to trial, or, in the case of
felony, to preliminary hearing and trial, may be extended only by the following:
***
(E) Any period of delay necessitated by reason of a plea in bar or abatement,
motion, proceeding, or action made or instituted by the accused;
***
(H) The period of any continuance granted on the accused's own motion, and the
period of any reasonable continuance granted other than upon the accused's own
motion[.]
{¶ 21} In this case, approximately 102 actual days3 or 306 triple count days elapsed
between the date of Anderson’s arrest on November 13, 2014, and the date of filing of the
motion to dismiss, February 23, 2015. Anderson has thus established a prima facie case of a
speedy trial violation; and the burden is on the State to show that a violation has not occurred.
We are mindful that we must construe extensions of time under R.C. 2945.72 strictly against the
State. State v. Singer, 50 Ohio St.2d 103, 108-09, 362 N.E.2d 1216 (1977).
{¶ 22} We first note that Anderson’s date of arrest was November 13, 2014. The date of
arrest does not count against the State in computing the 90 days. State v. Younker, 4th Dist.
Highland No. 07CA18, 2008-Ohio-6889, ¶ 15, citing State v. Madden, 10th Dist. Franklin No.
04AP-1228, 2005-Ohio-4281, ¶ 28; see also Crim.R. 45(A). Therefore, we begin our
calculations on November 14, 2014.
3
102 days is computed by adding 17 days in November, 31 days from December, 31 days from January, and 23
days for February until Anderson’s motion to dismiss was filed.
Scioto App. No. 15CA3696 10
{¶ 23} Next, we consider the filing of Anderson’s motion for discovery as a tolling event.
The Ohio Supreme Court has held that a defendant’s motion for discovery tolls the speedy trial
statute. State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 25. Anderson
states in his appellate brief that he submitted his motion for discovery on January 12, 2015; but,
according to the State’s Information to the Court filed on February 25, 2015, Anderson submitted
his Request for Discovery electronically on January 9, 2015. The State then purportedly
responded electronically on January 14, 2015, according to the State’s certificate of service;
however, the State alleges that it responded to the discovery request on January 16, 2015, which
is the date the response was filed in the Clerk of Court’s office.
{¶ 24} The discrepancy in the dates is immaterial as Anderson also filed a Motion to
Preserve Evidence on January 12, 2015. The trial court ruled on Anderson’s Motion to Preserve
Evidence on January 23, 2015. R.C. 2945.72(E) provides that “[a]ny period of delay necessitated
by reason of a * * * motion* * * made or instituted by the accused” may toll time for speedy trial
purposes. The Ohio Supreme Court also states:
We do not agree that the state has an affirmative duty to show that a motion
diverted the prosecutor’s attention or caused a delay in the proceedings before
speedy-trial time is tolled. It is the filing of the motion itself, the timing of which
the defense can control, that provides the state with an extension. R.C. 2945.72(E)
implicitly recognizes that when a motion is filed by a defendant, there is a “period
of delay necessitated”—at the very least, for a reasonable time until the motion is
responded to and ruled upon.
Sanchez at ¶ 26. Accord United States v. Rush, 738 F.2d 497, 502 (1st Cir.1984) (filing of a
motion to preserve evidence and the ruling thereon is a period of delay which shall be excluded
Scioto App. No. 15CA3696 11
in computing the time within which the trial must commence). Thus, the time from January 10,
2015 through January 23, 2015 is tolled for speedy trial purposes.
{¶ 25} Once the motion to preserve evidence was ruled upon by the trial court, the time
continued to elapse. Starting on January 24, 2015, we look to the next event— the jury trial that
was scheduled for February 9, 2015— to examine whether the speedy trial time should toll.
Again, we are mindful that we must construe extensions of time under R.C. 2945.72 strictly
against the State. Singer, 50 Ohio St.2d at 108-09, 362 N.E.2d 1216. The trial court stated the
following:
THE COURT: But you understand that my ability to seat a jury today with 12
people and no alternate if your calculations are wrong on time then that’s a
problem. The bottom line is I’m able to seat a jury, but I don’t have any alternate
today, are you willing to take that risk?
The trial court recognized that the continuance of the trial could be a problem. We believe that
the time period from January 24, 2015 through the next scheduled jury trial of February 17, 2015
should not be excluded in computing the time within which the trial must commence.
Consequently, the days from January 24, 2015 through February 17, 2015 counted towards the
time in which Anderson needed to be tried.
{¶ 26} Anderson’s case came before a jury again on February 17, 2015. This time, the
trial court simply did not have enough jurors to comprise a panel of twelve jurors. Both the State
and Anderson’s attorney agreed that they had made every effort to seat a jury; but they were
unable to seat twelve jurors. The trial court was forced to declare a mistrial. The Judgment Entry
declared that “[t]he speedy trial time, pursuant to R.C. §2945.71, is hereby tolled pursuant to
R.C. §2945.72(H).” R.C. 2945.72(H) provides that “[t]he time within which an accused must be
Scioto App. No. 15CA3696 12
brought to trial * * * may be extended only by * * * [t]he period of any reasonable continuance
granted other than upon the accused’s own motion[.]” We find that this continuance was
reasonable, especially in light of the parties’ agreement that they had made every effort to seat a
jury, but were unable to do so. Accordingly, the time period of six days from February 18, 2015
through February 23, 2015 was tolled.
{¶ 27} In total, Anderson was incarcerated for 102 days prior to the filing of the motion
to dismiss on speedy trial grounds. Eighty-two of the 102 days elapsed towards the time counted
against the State for speedy trial purposes. Twenty days of the 102 days were tolled. As a result,
we find that the State has met its burden to show that a violation has not occurred. We find that
the following table applies to Anderson’s case:
EVENTS & TIME ELAPSED TIME TOLLED TOTAL DAYS IN
TIMES FRAMES JAIL
Date of arrest 57 days 0 days 57 days
11/14/14 through
Anderson’s Request
for Discovery
received by State on
01/09/15
01/10/15
Anderson’s Motion to
Preserve Evidence
filed on 01/12/15
State’s Answer to
Request for Discovery
served on Anderson
electronically on
01/14/15 but filed in
Clerk of Courts on
01/16/15
Trial court ruled on
Anderson’s Motion to
Preserve Evidence on
01/23/15
Scioto App. No. 15CA3696 13
01/23/15 0 days 14 days 14 days
01/24/15 through 1st 25 days 0 days 25 days
jury trial resulting in
mistrial on 02/09/15
and then through 2nd
jury trial resulting in
mistrial on 02/17/15
02/18/2015 through 0 days 6 days 6 days
02/23/2015
(Anderson’s filing of
motion to dismiss and
3rd jury trial that
actually proceeded
through completion)
Totals: 82 days 20 days 102 days
{¶ 28} Based on the foregoing, Anderson’s first assignment of error is overruled.
C. Standard of Review for Restitution Order
{¶ 29} Regarding Anderson’s second assignment of error, we note that this court has
previously used an abuse of discretion standard when reviewing restitution orders. State v.
Newman, 2015-Ohio-4283, 45 N.E.3d 624, ¶ 42 (4th Dist.); State v. Durham, 4th Dist. Meigs
No. 13CA2 and 13CA3, 2014-Ohio-4915 ¶ 16; State v. Stump, 4th Dist. Athens No. 13CA10,
2014-Ohio-1487, ¶ 11; State v. Dennis, 4th Dist. Highland No. 13CA6, 2013-Ohio-5633, ¶ 7.
{¶ 30} However, in March 2016, the Ohio Supreme Court set forth the standard of review
that appellate courts must apply when reviewing felony sentences in State v. Marcum,
Ohio St.3d , 2016-Ohio-1002, N.E.3d .
Applying the plain language of R.C. 2953.08(G)(2), we hold that an 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.
Scioto App. No. 15CA3696 14
In other words, an appellate court need not apply the test set out by the plurality in
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
Id. at ¶ 1.
{¶ 31} In turn, our sister appellate court in the Twelfth District has recently stated the
following:
As this court recently stated, instead of applying an abuse of discretion standard,
“the proper standard of review for analyzing the imposition of restitution as a part
of a felony sentence is whether the sentence complies with R.C.
2953.08(G)(2)(b).” State v. Collins, 12th Dist. Warren No. CA2014-11-135,
2015-Ohio-3710, ¶ 31. Pursuant to R.C. 2953.08(G)(2)(b), this court may
increase, reduce, or otherwise modify a sentence that is appealed, or vacate the
sentence and remand the matter for resentencing, if we clearly and convincingly
find the sentence is contrary to law. The term “sentence” as utilized in R.C.
2953.08(G)(2)(b) encompasses an order of restitution. Collins, at ¶ 31, fn.1. This
is an “extremely deferential” standard of review for the restriction is on the
appellate court, not the trial judge. State v. Durham, 12th Dist. Warren No.
CA2013-03-023, 2013-Ohio-4764, ¶ 43.
State v. Geldrich, 12th Dist. Warren No. CA2015-11-103, 2016-Ohio-3400, ¶ 6.
{¶ 32} Similarly, the Sixth District appellate court has also addressed this issue setting
forth that “[o]ur standard of review on this issue is whether the imposition of costs and financial
sanctions was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b).” State v. Farless, 6th Dist.
Lucas Nos. L-15-1060 and L-15-1061, 2016-Ohio-1571, ¶ 4; contra State v. Nitsche, 8th Dist.
Scioto App. No. 15CA3696 15
Cuyahoga No. 103174, 2016-Ohio-3170, ¶ 73 (continuing to use an abuse of discretion standard
to review a restitution order).
{¶ 33} Therefore, in light of the recent Supreme Court and other appellate court
decisions, when reviewing restitution orders, we will apply the extremely deferential standard
used by the Twelfth and Sixth Districts. Prior to increasing, reducing, or otherwise modifying a
sentence that is appealed, or vacating the sentence and remanding the matter for resentencing, we
will seek to determine whether the trial court’s restitution order is clearly and convincingly
contrary to law.
{¶ 34} In this particular case, Anderson contends that the trial court erred by ordering
restitution without first determining his present or future ability to pay. We note, however, that
Anderson did not object to the trial court’s restitution order at sentencing. Specifically, he did not
object on the grounds that the court failed to inquire whether he had a present or future ability to
pay the restitution. Because Anderson did not raise these arguments at sentencing when the trial
court could have corrected any error, he has forfeited the right to raise these arguments on
appeal. Newman, 2015-Ohio-4283, 45 N.E.3d 624 at ¶ 40, citing State v. Mendez, 7th Dist.
Mahoning No. 13MA86, 2014-Ohio-2601, ¶ 11, in turn quoting State v. Potts, 7th Dist. Harrison
No. 07HA4, 2008-Ohio-643, ¶ 7 (“[A]n offender who does not raise his ability to pay a financial
sanction at the time the sanction is imposed waives any argument concerning his ability to pay
on direct appeal.”). We may, however, review Anderson’s second assignment of error for plain
error. Id., citing State v. Leslie, 4th Dist. Hocking Nos. 10CA17 and 10CA18, 2011-Ohio-2727, ¶
27 (applying plain error doctrine when defendant failed to object to trial court’s restitution
order).
{¶ 35} Hence, we will review Anderson’s argument on appeal under the plain-error
Scioto App. No. 15CA3696 16
standard of review. “Plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Crim.R. 52(B).
{¶ 36} For a reviewing court to find plain error, there must be (1) an error, i.e, a deviation
from a legal rule, (2) the error must be plain, and (3) the error must have affected substantial
rights, i.e., it must have affected the outcome of the proceeding. See State v. Osie, 140 Ohio
St.3d 131, 2014–Ohio–2966, 16 N.E.3d 588, ¶ 81, citing State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002). Notice of plain error is taken “ ‘with the utmost caution, under
exceptional circumstances, and only to prevent a miscarriage of justice .’ ” State v. Mammone,
139 Ohio St.3d 467, 2014–Ohio–1942, 13 N.E.3d 1051, ¶ 69, quoting State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
D. The Trial Court’s Restitution Order Did Not Rise to the Level of Plain Error
{¶ 37} The State concedes that “there was no questioning by the trial court at sentencing
regarding [Anderson’s] ability to pay.” However, this is not determinative of Anderson’s
assignment of error. Although, R.C. 2929.19(B)(5) mandates that a trial court “shall consider the
offender’s present and future ability to pay the amount of the sanction or fine,” before imposing
a restitution order, it does not set forth “express factors that must be taken into consideration or
findings regarding the offender’s ability to pay that must be made on the record.” State v. Martin,
140 Ohio App.3d 326, 338, 747 N.E.2d 318 (4th Dist.2000). In other words, a trial court need
not expressly state on the record that it considered an offender’s ability to pay; and the absence
of an explicit statement does not necessarily require a reversal of a court’s restitution order. State
v. Rickett, 4th Dist. Adams No. 07CA846, 2008-Ohio-1637, ¶ 6. Instead, when the trial court
fails to make an explicit finding regarding an offender’s ability to pay, a reviewing court may
consider the entire record to ascertain whether this finding may be inferred. Id.Scioto App. No. 15CA3696 17
{¶ 38} In Newman, 2015-Ohio-4283, 45 N.E.3d 624 at ¶¶ 39-45, 50-54, we refused to
find plain error with the sentencing court’s order of restitution when the appellant failed to argue
that he had an inability to pay. We stated as follows:
Appellant testified, and the court had the opportunity to view his demeanor and to
evaluate whether he would be capable of seeking gainful employment. Appellant
was forty-one years old at the time of the sentencing hearing and graduated from
high school. He had prior employment and maintained an active lifestyle. Nothing
in the record suggests that appellant suffers from any physical or mental disability
or will otherwise be unemployable after his release from prison. Moreover, the
trial court sentenced appellant to four years in prison. Thus, his sentence is not so
long as to preclude him from seeking employment following his release from
prison. Consequently, we believe that the record contains adequate, pertinent
information regarding appellant's financial situation to indicate that the court
sufficiently considered appellant's present and future ability to pay.
Id. at ¶ 50.
{¶ 39} The case sub judice is similar to Newman, in that the trial court was able to hear
the evidence at trial. Although Anderson did not testify, the trial court was still able to observe
Anderson firsthand and assess his demeanor. The trial court also had the benefit of seeing and
hearing testimony about Anderson from witnesses. Thus, we believe that the record contains
adequate and pertinent information pertaining to Anderson’s financial situation to indicate that
the trial court sufficiently considered his present and future ability to pay. Certainly this is not a
Scioto App. No. 15CA3696 18
case that presents exceptional circumstances; and we refuse to find that a miscarriage of justice
occurred here rising to the level of plain error.
{¶ 40} Accordingly, we overrule Anderson’s second assignment of error.
IV. CONCLUSION
{¶ 41} Having overruled both of Anderson’s assignments of error, we affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 15CA3696 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
The Court finds that reasonable grounds exist for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court 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.
Abele, J.: Concur in Judgment and Opinion.
McFarland, J.: Concur in Judgment Only.
For the Court
By:
Marie Hoover, 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.