State v. Johnson , 2016 Ohio 5160 ( 2016 )


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  • [Cite as State v. Johnson, 2016-Ohio-5160.]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    CHAMPAIGN COUNTY
    STATE OF OHIO                                      :
    :
    Plaintiff-Appellee                         :  C.A. CASE NO. 2015-CA-24
    :
    v.                                                 :  T.C. NO. 14CR215
    :
    RICKY D. JOHNSON                                   :  (Criminal appeal from
    :   Common Pleas Court)
    Defendant-Appellant                        :
    :
    ...........
    OPINION
    Rendered on the ___29th___ day of ____July____, 2016.
    ...........
    JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
    Street, Urbana, Ohio 43078
    Attorney for Plaintiff-Appellee
    ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, 5540 Far Hills Avenue, Suite 202,
    Dayton, Ohio 45429
    Attorney for Defendant-Appellant
    .............
    DONOVAN, P.J.
    {¶ 1} Defendant-appellant Ricky D. Johnson appeals his conviction and sentence
    for the following offenses, to wit: 1) having weapons while under disability, in violation of
    R.C. 2923.13(A)(3)(B), a felony of the third degree; 2) two counts of trafficking in heroin,
    in violation of R.C. 2925.03(A)(1)(C)(6)(c), both felonies of the third degree; 3) two counts
    -2-
    of possessing criminal tools, in violation of R.C. 2923.24(A)(C), both felonies of the fifth
    degree;    and   4)    one   count    of   endangering     children,   in   violation   of   R.C.
    2919.22(A)(E)(2)(a), a misdemeanor of the first degree.           Both counts of possessing
    criminal tools were accompanied by forfeiture specifications.
    {¶ 2} Johnson filed a motion for leave to file a delayed notice of appeal with this
    Court on July 23, 2015. In a decision and entry issued on August 18, 2015, we sustained
    Johnson’s motion for leave to file notice of a delayed appeal.
    {¶ 3} On October 2, 2014, the State filed a seventeen count indictment charging
    Johnson with the following offenses: six counts of possessing criminal tools, all felonies
    of the fifth degree; three counts of trafficking in heroin, all felonies of the third degree; two
    counts of having weapons while under disability, both felonies of the third degree; two
    counts of possession of cocaine, both felonies of the fifth degree; two counts of receiving
    stolen property, both felonies of the fifth degree; one count of aggravated possession of
    drugs, a felony of the fifth degree; and one count of endangering children, a misdemeanor
    of the first degree.    The indictment also included specifications for forfeiture of an
    automobile, a cellular phone, and a pair of underpants that had been modified to conceal
    and transport contraband.
    {¶ 4} At his arraignment on October 6, 2014, Johnson pled not guilty to all of the
    charges contained in the indictment. Thereafter on December 17, 2014, Johnson pled
    guilty to the following charges: two counts of trafficking in heroin, both felonies of the third
    degree; one count of having a weapon while under disability, a felony of the third degree;
    two counts of possessing criminal tools, both felonies of the fifth degree; and one count
    of endangering children, a misdemeanor of the first degree. Johnson also agreed to
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    forfeiture of the automobile and the modified underpants. In exchange for his guilty
    pleas, the State agreed to dismiss all of the remaining counts and forfeiture specifications.
    We also note that Johnson and his counsel stipulated that none of the offenses were
    allied offenses of similar import. At the conclusion of the plea hearing, the trial court
    ordered the probation department to generate a presentence investigation report (PSI).
    {¶ 5} Initially, disposition was scheduled to occur on January 12, 2015; however,
    it was continued to January 15, 2015. On that day, the trial court sentenced Johnson to
    thirty-six months in prison for having a weapon while under disability, thirty months in
    prison for each count of trafficking in heroin, ten months in prison for each count of
    possessing criminal tools, and six months in prison for child endangerment. The trial
    court ordered that the sentences for having a weapon while under disability and both
    counts of trafficking in heroin be served consecutive to one another for an aggregate
    sentence of eight years in prison. All remaining counts were ordered to run concurrently
    to the aggregate sentence. The trial court also imposed fines and court costs against
    Johnson, and ordered him to pay back the costs of his court appointed counsel at a rate
    of $50.00 per month once he was released from prison.
    {¶ 6} It is from this judgment that Johnson now appeals.
    {¶ 7} Johnson’s first assignment of error is as follows:
    {¶ 8} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING MR.
    JOHNSON TO AN AGGREGATE EIGHT YEAR PRISON SENTENCE.”
    {¶ 9} In his first assignment, Johnson contends that the trial court erred when it
    sentenced him to an aggregate sentence of eight years in prison. Specifically, Johnson
    argues that the trial court failed to properly consider the purpose and principles of
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    sentencing pursuant to R.C. 2929.11 and R.C. 2929.12 when it imposed an eight-year
    prison term. We note that Johnson does not challenge the trial court’s imposition of
    consecutive sentences nor the efficacy of the findings made by the court to support the
    consecutive sentences.
    {¶ 10} In State v. Exon, 2d Dist. Clark No. 2014-CA-106, 2016-Ohio-600, ¶ 49, we
    recently stated the following regarding felony sentencing:
    “The trial court has full discretion to impose any sentence within the
    authorized statutory range, and the court is not required to make any
    findings or give its reasons for imposing maximum or more than
    minimum sentences.” State v. King, 2013–Ohio–2021, 
    992 N.E.2d 491
    , ¶
    45 (2d Dist.). However, in exercising its discretion, a trial court must
    consider the statutory policies that apply to every felony offense, including
    those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 
    194 Ohio App. 3d 500
    , 2011–Ohio–3864, 
    957 N.E.2d 55
    , ¶ 11 (2d Dist.),
    citing State v. Mathis, 
    109 Ohio St. 3d 54
    , 2006–Ohio–855, 
    846 N.E.2d 1
    , ¶
    38.
    {¶ 11} The principles and purposes of felony sentencing are set forth in R.C.
    2929.11.    The statutory “seriousness” and “recidivism” factors that guide a court's
    sentencing discretion are found in R.C. 2929.12. We have found that a trial court need
    not expressly state that it has considered R.C. 2929.11 and R.C. 2929.12. See,
    e.g., State v. Guy, 2d Dist. Clark Nos. 2015–CA–28, 2015–CA–29, 2016–Ohio–
    425, ¶ 16, quoting State v. Neff, 2d Dist. Clark No. 2012–CA–31, 2012–Ohio–6047, ¶ 5.
    In any event, the trial court here specifically referenced both statutes by number during
    -5-
    the sentencing hearing, and it explicitly considered and applied both of them to the facts
    before it. (Sentencing Tr. at 56-59, 60-62). It also stated in its sentencing entry that it
    had considered the factors set forth in R.C. 2929.12 and the principles and purposes of
    sentencing found in R.C. 2929.11. (Doc. # 101 at 6, 7, 8).
    {¶ 12} At the sentencing hearing, the trial court made the following pertinent
    findings:
    The Court: *** With regard to sentencing, on the Counts, in terms of non-
    financial sentencing but residential sentencing, the Court finds that Counts
    One, Nine, Ten, Fourteen, Sixteen, and Seventeen are not allied offenses
    of similar import. In imposing sentence[,] the Court considered and applied
    the purposes and principles of sentencing set forth in [R.C.] 2929.11
    divisions A, B, and C.    The Court also considered seriousness of the
    conduct, likelihood of recidivism, and lack of service in the Armed Forces.
    Upon evaluation of the factors, the Court finds that as far as
    seriousness factors go, that with regard to more serious, the Defendant
    possessed, stole a high-powered firearm and a bulletproof vest, and
    assisted others in exchanging those firearms to drug dealers for heroin and
    large sums of money. And that the Defendant engaged in a firearm/vest
    for drugs swap in the immediate presence of his two-year old daughter.
    And that the Defendant committed the offense for hire. Meaning, he was
    facilitating a heroin addiction of his own and his other co-defendants. And
    as part of organized criminal activity.    That being with co-defendants
    Ashley Saunders and David Skapik.
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    With regard to less serious factors, the Court finds that there are
    substantial grounds to mitigate the Defendant’s conduct.        Although the
    grounds are not enough to constitute a defense.         Specifically, that the
    Defendant successfully worked with law enforcement to enable officers in
    retrieving the high-powered firearms and bulletproof vest through the
    execution of search warrants.
    The Court concludes that the factors [which] establish Defendant’s
    conduct is more serious outweigh factors establishing [that] Defendant’s
    conduct is less serious.    With regard to recidivism and more likely to
    commit future crimes, the Court finds that the Defendant – Court finds that
    the Defendant has previously been terminated from post-release control
    just five months before committing the offenses leading to his convictions
    and the case at bar.
    Court finds that the Defendant has a history of criminal convictions.
    He has not responded favorably to sanctions previously imposed for the
    criminal convictions.   And that he has demonstrated a pattern of drug
    abuse that is related to the offense. And he refuses to acknowledge that
    he has that demonstrative pattern or refuses treatment for his drug abuse.
    I want to explain to you what I mean by that, Mr. Johnson. What I
    mean by that is, not that [I] don’t believe that you want help, but the Court
    believes that based on all the opportunities that we talked about, with regard
    to your avenues for trying to get help, that you refused to take advantage of
    those or you chose not to. Do you understand what I’m saying?
    -7-
    Johnson: Yes, sir.
    The Court: With regard to less likely to commit future crimes, the Court finds
    that the Defendant shows genuine remorse for the offense involving the
    stolen firearms and bulletproof vest. The Court concludes that the factors
    establishing the Defendant’s recidivism is more likely outweigh factors
    establishing Defendant’s recidivism is less likely. The Court considered
    the Defendant’s military service record.     Finds that he has no military
    service record.
    ***
    With regard to Counts Nine and Ten, the Court finds that the
    Defendant is being sentenced for a specified felony drug offense in violation
    of Chapter 2929 of the Revised Code for which a presumption of prison is
    specified.    The Court finds that [R.C.] 2929.13(D)(1) applies to the
    sentencing analysis. It sets forth that it is presumed that a prison term is
    necessary in order to comply with the purposes and principles of
    sentencing.
    The Court finds that a community control sanction or a combination
    of community control sanctions would not adequately punish the Defendant
    and protect the public from future crimes because the applicable factors
    under [R.C.] 2929.12 indicating a lesser likelihood of recidivism do not
    outweigh the applicable factors under that section indicating a greater
    likelihood of recidivism.
    The Court also finds that a community control sanction or a
    -8-
    combination of community control sanctions would demean the seriousness
    of the offense because one or more of the factors under 2929.12 that
    indicate the Defendant’s conduct was less serious than the conduct
    normally constituting the offense are either not applicable or do not
    outweigh the applicable factors under that section that indicate that the
    Defendant’s conduct was more serious than conduct normally constituting
    the offense.
    With those findings, the Court finds that Ohio law requires the Court
    to impose a prison term on Counts Nine and Ten upon the Defendant.
    Court also finds Defendant is not amenable to available community control
    sanction at this time. The Court notes that no reasonable alternative to
    prison are available in taking into account the inability to follow conditions
    of bond, the Defendant’s criminal history, and the Court’s lack of confidence
    that the Defendant will follow conditions of community control.
    The Court also finds it significant, in reaching its conclusion, that
    imposition of a term of imprisonment would achieve the purposes and
    principles of sentencing through the State’s recommendation that prison be
    imposed. That the Defendant was on post-release control. And while on
    post-release control, subject to a residential search by the APA officials,
    was found to be housing a fugitive and was found to be in possession of a
    soft-sized baggy of marijuana and heroin residue.         And also that the
    Defendant initially chose to place stolen high-powered firearms and a
    bulletproof vest into the hands of drug dealers that could have posed a great
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    risk of harm to any undercover narcotics officer, confidential informant,
    uniformed officers, or an innocent bystander in the vicinity of the drug dealer
    at an inopportune time.
    The Court was also persuaded by the fact that the Defendant
    regularly traveled to a residence and bought heroin while in the immediate
    vicinity of his two-year old daughter. And the Court also finds significant
    that after the sentencing hearing on January 12[, 2015,] that the Defendant
    was reported to have been disruptive and shouted obscenities at jail staff
    members and threatened to kill a jail staff member.         All while he had
    returned from this Court’s hearing.
    {¶ 13} The record reflects that Johnson has a lengthy history of criminal
    convictions for, among other things, numerous receiving stolen property charges, theft,
    disorderly conduct, multiple drug convictions involving both possession and trafficking,
    and two OVIs. Additionally, at the time that Johnson’s PSI was being generated, he had
    an active warrant for a traffic offense in Miami County Municipal Court. In light of the
    foregoing, we find that the trial court properly considered the purposes and principles of
    sentencing pursuant to R.C. 2929.11 and R.C. 2929.12 when it imposed an eight-year
    prison term.
    {¶ 14} Lastly, although not argued or otherwise challenged by Johnson, the trial
    court made all of the findings for consecutive sentences, including two of the alternative
    findings under R.C. 2929.14(C)(4)(b) and (c). (Sentencing Tr. at 64–65). Specifically,
    the trial court found that at least two or more of his crimes were committed as a course of
    conduct and the harm caused by two or more of the multiple offenses was so great or
    -10-
    unusual that no single prison term would adequately reflect the seriousness of his
    conduct. 
    Id. The trial
    court also found Johnson’s history of criminal conduct
    demonstrates that consecutive sentences are necessary to protect the public from future
    crime committed by him. 
    Id. We review
    those findings under the standard set forth
    in R.C. 2953.08(G)(2), which authorizes us to vacate Johnson's consecutive sentences if
    we clearly and convincingly find that the record does not support them. See State v.
    Marcum, Slip Opinion No. 2016–Ohio–1002.
    {¶ 15} As evidence of mitigation, Johnson cites the fact that he cooperated with
    law enforcement regarding the return of the stolen firearms and bulletproof vest, testified
    against his co-defendants, and that he is a drug abuser who has never received the
    proper help to cure his addiction. As noted above, the trial court found no “genuine
    remorse,” however, and essentially concluded that Johnson's only real concern was for
    himself. Even if we accept the “mitigating” facts cited by Johnson, the record does not
    clearly and convincingly fail to support the trial court's consecutive-sentence findings. To
    the contrary, the record overwhelmingly supports them. We also note that the trial court
    stated that it considered Johnson’s mitigation evidence when it imposed an eight-year
    aggregate sentence instead of the maximum sentence of eleven and one-half years it
    could have imposed.
    {¶ 16} Having reviewed that evidence, along with the sentencing transcript and the
    PSI, we harbor no doubt that the record supports the trial court's consecutive-sentence
    findings that consecutive terms are necessary to protect the public from future crime or
    to punish Johnson and that consecutive sentences are not disproportionate to the
    seriousness of his conduct and to the danger Johnson poses to the public. The record
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    also supports the trial court's additional finding under R.C. 2929.14(C)(4)(c) that
    Johnson's extensive history of criminal conduct demonstrates that consecutive sentences
    are necessary to protect the public from future crime. Because the record supports that
    finding, we need not address whether the record supports the trial court's alternative
    finding under R.C. 2929.14(C)(4)(b). That finding was unnecessary in light of our
    determination that the trial court's finding under R.C. 2929.14(C)(4)(c) was proper. See
    State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 12.
    {¶ 17} In Marcum, the Ohio Supreme Court made clear that the standard
    contained in R.C. 2953.08(G)(2) applies to all felony sentencing-term challenges. In the
    instant     case, the    trial court   properly   considered   the   criteria   found   in R.C.
    2929.11 and R.C. 2929.12, and the record does not clearly and convincingly fail to
    support its decision to impose non-maximum consecutive sentences. While a sentence
    also may be vacated under R.C. 2953.08(G)(2) if it is “contrary to law,” Johnson makes
    no such argument in this case.         In any event, we are unable to conclude that the
    sentence he received was contrary to law.
    {¶ 18} Johnson’s first assignment of error is overruled.
    {¶ 19} Johnson’s second assignment of error is as follows:
    {¶ 20} “THE    TRIAL     COURT       ERRED      BY    DISAPPROVING            SHOCK
    INCARCERATION AND INTENSIVE PRISON PROGRAMS WITHOUT MAKING
    FINDINGS THAT GIVE REASONS FOR DISAPPROVAL.”
    {¶ 21} In his second assignment, Johnson argues that the trial court erred when it
    failed to make the necessary findings to support its decision disapproving him for shock
    incarceration and intensive program prison.
    -12-
    {¶ 22} At the sentencing hearing, the trial court made the following statement:
    After reviewing the nature and circumstances of your offense, your conduct
    while on bond, your [PSI], your criminal history, your prior service of
    imprisonment, and your conduct while residing at the Tri-County Regional
    Jail, the Court does not recommend and disapproves you for placement in
    an intensive program prison.      Disapproves you for placement in shock
    incarceration. ***
    (Sentencing Tr. at 63).
    {¶ 23} The judgment entry, Dkt. 101, states as follows:
    COURT SENTENCING RECOMMENDATIONS
    After a review of: the nature and circumstances of the offense(s) for which
    the Defendant was being sentenced; the Defendant’s conduct while on
    bond; the [PSI]; the Defendant’s criminal history; the Defendant’s prior
    service of imprisonment; [and] the Defendant’s conduct while residing at the
    Tri-County Regional Jail[,] ***
    Based on those factors, the trial court disapproved of Johnson’s participation in either
    shock incarceration or intensive program prison.
    {¶ 24} The sentencing statute, R.C. 2929.19(D) provides as follows:
    The sentencing court, pursuant to division (I)(1) of section 2929.14 of the
    Revised Code, may recommend placement of the offender in a program of
    shock incarceration under section 5120.031 of the Revised Code or an
    intensive program prison under section 5120.032 of the Revised Code,
    disapprove placement of the offender in a program or prison of that nature,
    -13-
    or make no recommendation. If the court recommends or disapproves
    placement, it shall make a finding that gives its reasons for its
    recommendation or disapproval. (Emphasis added).
    {¶ 25} In State v. Blessing, 2d Dist. Clark No. 2011 CA 56, 2013–Ohio–392, we
    remanded the case for resentencing when the trial court simply stated, “in the interest of
    justice and truth in sentencing, it is hereby Ordered that the defendant serve her entire
    stated prison term in the Ohio State Penitentiary. The Ohio Department of Corrections
    shall not place this defendant in an IPP (Intensive Prison Program), transitional control, a
    half-way house, or any other program or institution unless this Court upon
    reconsideration, expressly and in writing authorizes the same.” 
    Id. at ¶
    45.            We
    concluded that:
    “R.C. 2929.19(D) requires more than that reasons can be found in
    the record to support the trial court's disapproval of the programs; the
    statute requires that the trial court, if it shall make a recommendation, must
    ‘make a finding that gives its reasons for its recommendation or
    disapproval.’ This statutory requirement, imposed on the trial court, is not
    satisfied by an appellate court finding in the record reasons that the trial
    court could have given, or might have given, for disapproval.” State v.
    Allender, 2d Dist. Montgomery No. 24864, 2012–Ohio–2963, ¶ 22. “The
    statute requires that the trial court provide its reasons for disapproving
    shock incarceration or the intensive program prison, not merely that the
    record supports reasons for disapproval that the trial court might have had,
    but did not express.” 
    Id. at ¶
    26.
    -14-
    Blessing, at ¶ 47.
    {¶ 26} In 
    Allender, supra
    , we reviewed and rejected as distinguishable or
    inapplicable the allegedly conflicting decisions of the Fifth, Eleventh and Twelfth District
    Court of Appeals. State v. Jackson, 5th Dist. Knox Nos. 05 CA 46, 05 CA 47, 2006–Ohio–
    3994; State v. Tucker, 12th Dist. Butler No. CA2011–04–067, 2012–Ohio–50; State v.
    Lowery, 11th Dist. Trumbull No. 2007–T–0039, 2007–Ohio–6734. See Allender at ¶ 23–
    25. The only other case cited by the State as conflicting with our precedent is State v.
    Daniels, 12th Dist. Fayette No. CA2014–05–010, 2015–Ohio–1346.                    The court
    in Daniels followed the reasoning in Tucker, which did not find any error when the court
    recited numerous facts on the record for its sentencing decision.             As we stated
    in Allender, the facts are distinguishable when the trial court refers to various general
    principles that it considered, and to various sources of information that it reviewed, but
    does not make any specific factual findings to explain its disapproval of shock
    incarceration or the intensive program prison. “[T]he statute requires that the trial court
    give its reasons for disapproval, not merely that reasons for disapproval exist.” Allender at
    ¶ 23.
    {¶ 27} Recently, in State v. Matthews, 2d Dist. Montgomery No. 26405, 2015-Ohio-
    3388, we remanded the case for resentencing, stating the following:
    In the case before us, there is no dispute that Matthews was eligible
    for shock incarceration or intensive program prison, and the trial court failed
    to make findings identifying its reasons for disapproving placement in a
    program of shock incarceration or intensive program prison. The trial court's
    summary conclusion that the disapproval is based on the court's review of
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    Mr. Matthews' criminal history, the PSI and the facts and circumstances of
    the offense and any victim impact statement and for the reasons the court
    imposed the prison sentence, does not constitute a “finding that gives its
    reasons for * * * disapproval” within the contemplation of R.C. 2929.19(D).
    Without that finding, we conclude that the judgment of the trial court does
    not satisfy the requirement of the statute.
    
    Id. at ¶
    14.
    {¶ 28} At Johnson’s sentencing hearing on January 15, 2015, the trial court made
    the following specific findings on the record which clearly support its decision for
    disapproving Johnson’s placement in a program of shock incarceration or intensive
    program prison:
    Trial Court: Turning to the – what I’m going to call Court’s Exhibits 1
    through 5, is Tri-County Regional Jail reports concerning your conduct while
    at the jail. And Court Exhibit 1 is that there was a plastic baggy containing
    an unknown black substance and a syringe found in your pod. Court’s
    Exhibit 2 was a description of a syringe taped under your bed. And the
    dates of those were 9-14-14 and 9-20-14.
    ***
    In Court’s Exhibit 3, after you had been placed in jail. So you were
    placed in jail on January 9, 2015. On January 10[, 2015,] your pod was
    searched because there was a smoke smell and a cigarette was found
    under the bottom bunk. Half a cigarette was found under the bottom bunk
    of your cell. And the officers also found a crushed soap [bar] in a wet sock.
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    And then fight club rules written on the wall.
    ***
    The other version is that you returned to court – you returned from
    court at the jail. And you had been unsteady coming through the doors.
    Required checking by medical. The nurse felt that you should be housed
    in booking and placed on medical watch. The report says – and I’m going
    to just read it.   [“Johnson] immediately became disruptive and began
    shouting I was f***ing with him. I told him the nurse wanted him on medical
    watch. And he then began shouting at me. Removed his shirt and began
    making threats toward me. He shouted at me to come into his cell and he
    would kick my ass and he was going to kill me.”
    [“Johnson] said when he was on ankle monitoring, he researched
    where I lived. And he knows who my life is. And he will kill me and my
    family. He continued to shout, he knows where I live and he is coming to
    see me. He continued to make threats until the court returns from Madison
    County came into the booking area.[”] (sic).
    ***
    And when the Court sees that you have trouble following bond. For
    whatever reason. Or the Court sees that you have difficulties in the jail.
    Whatever those difficulties are. Those are negative factors for the Court to
    examine. For the Court to say that this guy is ready for probation right off
    the bat.
    ***
    -17-
    But then we look at the negative side. And we look at the type of
    offense that was committed. We look at, what I’m going to call it, your
    conduct while on bond. We look at the reports that I have from the jail.
    And we look at your criminal history. And that is what the Court is talking
    about when we say balancing certain factors.
    Sentencing Tr. at 32-41.
    {¶ 29} Similar to the defendant in Matthews, it is undisputed that Johnson was
    eligible for shock incarceration or intensive program prison. However, unlike the trial
    courts in Matthews and Allender, the record establishes that the trial court here made
    sufficient findings identifying its specific reasons for disapproving Johnson’s placement in
    a program of shock incarceration or intensive program prison. The trial court concluded
    that its rationale for disapproval was based on “the nature and circumstances of the
    offense(s) for which the Defendant was being sentenced; the Defendant’s conduct while
    on bond; the [PSI]; the Defendant’s criminal history; the Defendant’s prior service of
    imprisonment; [and] the Defendant’s conduct while residing at the Tri-County Regional
    Jail.” As discussed above, the trial court’s rationale is supported by numerous facts set
    forth by the trial court on the record, namely Court’s Exhibits 1 through 5. In our view,
    this is more than just a “summary conclusion” and constitutes a “finding that gives its
    reasons for * * * disapproval” within the contemplation of R.C. 2929.19(D). Here, unlike
    the court in Allender, the trial court provided specific reasons for disapproving Johnson’s
    placement in a program of shock incarceration or intensive program prison.            Upon
    review, we therefore conclude that the judgment of the trial court satisfies the
    requirements of R.C. 2929.19(D).
    -18-
    {¶ 30} Johnson’s second assignment of error is overruled.
    {¶ 31} Johnson’s third and final assignment of error is as follows:
    {¶ 32} “THE TRIAL COURT ERRED IN IMPOSING A COST AND FEE
    REPAYMENT SCHEDULE TO BE COMPLETED AFTER MR. JOHNSON’S RELEASE
    FROM PRISON.”
    {¶ 33} In his final assignment, Johnson argues that the trial court erred when it
    ordered him to pay court costs, fines, and his court-appointed counsel fees through a
    post-prison repayment schedule set at $50.00 per month.           Based upon our recent
    holding in State v. Springs, 2015-Ohio-5016, 
    53 N.E.3d 804
    (2d Dist.), Johnson argues
    that such fees must be pursued by a county against a defendant in a separate civil action.
    Therefore, he asks us to vacate the portion of the judgment entry ordering him to pay
    court costs, fines, and his court-appointed counsel legal fees.
    {¶ 34} Johnson’s judgment entry of conviction states in pertinent part:
    FINANCIAL OBLIGATION PAYMENT SCHEDULE
    Defendant shall pay court costs, fine, and court-appointed legal fees at a
    minimum of $50.00 per month beginning the second month after release
    from confinement and due the 28th of each month thereafter. Clerk shall
    apply monies collected to court costs, fine, and court-appointed legal fees
    in that order.
    {¶ 35} In Springs, which also involved the Champaign County Court of Common
    Pleas, we held that although the trial court, following defendant's guilty plea, could
    properly find defendant obligated to repay court-appointed counsel fees and enter
    judgment for them, the obligation to reimburse appointed-counsel fees could not properly
    -19-
    be blended into the court's post-confinement repayment schedule. Id at 12. Rather, if
    the county desired to enforce the reimbursement to which the trial court's findings entitled
    it, it was required to pursue civil execution collection proceedings. Id; see R.C.
    2941.51(D).
    {¶ 36} In the case at bar, the State does not challenge Johnson’s argument that it
    was improper for the trial court to blend appointed-counsel fees into a post-confinement
    repayment schedule. The State, however, contends that the trial court was well within
    its authority to order Johnson to pay court costs and fines through a post-confinement
    repayment schedule set at $50.00 per month.
    {¶ 37} R.C. § 2949.111(A)(1) defines “court costs” as “any assessment that the
    court requires an offender to pay to defray the costs of operating the court.” R.C.
    2949.111(A)(3) defines “reimbursement” as “any reimbursement for the costs of
    confinement that the court orders an offender to pay pursuant to section 2929.28 of the
    Revised Code, any supervision fee, any fee for the costs of house arrest with electronic
    monitoring that an offender agrees to pay, any reimbursement for the costs of an
    investigation or prosecution that the court orders an offender to pay pursuant to section
    2929.71 of the Revised Code, or any other costs that the court orders an offender to pay.”
    {¶ 38} We review a trial court’s imposition of a repayment schedule for court costs
    under an abuse of discretion standard. See State v. Gullett, 4th Dist. Gallia No.
    09CA4, 2010–Ohio–2785, ¶ 10. Pursuant to R.C. 2947.23, the trial court was required
    to “include in the sentence the costs of prosecution and render a judgment against the
    defendant for such costs.” However, court costs are distinct from criminal punishment.
    This is because “although costs in criminal cases are assessed at sentencing and are
    -20-
    included in the sentencing entry, costs are not punishment, but are more akin to a civil
    judgment for money.” State v. Threatt, 
    108 Ohio St. 3d 277
    , 2006–Ohio–905, 
    843 N.E.2d 164
    , ¶ 15. An order to pay court costs is essentially a judgment on a contractual debt
    where the court is the creditor and the party ordered to pay court costs is the debtor. State
    v. Lamb, 
    163 Ohio App. 3d 290
    , 2005-Ohio-4741, 
    837 N.E.2d 833
    , ¶ 13 (2d Dist.). As
    such, the creditor, i.e., the court, can collect only the money it is due by the methods
    provided for the collection of civil judgments. 
    Id. {¶ 39}
    In Threatt, the Ohio Supreme Court held that “the state may use any
    method available for collection of a civil judgment for money.” 
    108 Ohio St. 3d 277
    , 2006-
    Ohio-905, 
    843 N.E.2d 164
    , at ¶ 16. Here, the trial court clearly had the authority to
    impose court costs against Johnson at sentencing. Further, once Johnson was released
    from prison, the State or the Department of Rehabilitation and Corrections could then
    have implemented one of many civil collection methods to collect the costs generated
    during his case. However, the trial court did not have the authority to enforce monetary
    obligations except through civil enforcement mechanisms. State v. Springs, 2015-Ohio-
    5016, 
    53 N.E.3d 804
    , ¶ 13 (2d Dist.). Since costs from a criminal action can only be
    collected through civil enforcement mechanisms, the trial court erred when it ordered
    Johnson to remit the costs from his criminal action through the fee schedule it created
    and included in his judgment entry of conviction. If Champaign County, or the clerk
    thereof, desires to enforce the reimbursement to which the trial court's findings entitle it,
    it must pursue civil execution collection proceedings. 
    Id. at ¶
    12.
    {¶ 40} Unlike court-appointed attorney’s fees and costs, fines are punitive in
    nature. State v. Swift, 2d Dist. Montgomery No. 20544, 2005-Ohio-1599, ¶ 28. Under
    -21-
    R.C. 2947.14, if, as part of a sentence, the trial court orders an offender to pay a fine, but
    the offender fails to pay the fine, the court may hold a hearing pursuant to R.C.
    2947.14(A) and (B). At this hearing, the offender has the right to be represented by
    counsel and to testify and present evidence as to his ability to pay the fine. If the court
    determines at the hearing that the offender is able to pay the fine, this determination shall
    be supported by findings of fact that indicate the offender's income, assets, and debt, as
    presented by the offender, and the offender's ability to pay. If the offender then fails to
    pay, the court may issue a warrant for the offender's arrest. The court must then afford
    the offender another hearing “on the first regularly scheduled court day following the
    arrest,” unless waived by the offender. R.C. 2947.14(C). If the court then finds that the
    offender is still able to pay the fine but refuses, it may incarcerate the offender. If the
    court chooses to incarcerate the offender, the court must give the offender credit against
    the fine at the rate of $50.00 per day.
    {¶ 41} Accordingly, because the fines that were imposed upon Johnson at the time
    of sentencing were punitive in nature, the trial court was within its authority to include
    them in the repayment schedule it included in his judgment entry of conviction.             If
    Johnson was later discovered to be in arrears in regards to the payment of his fines at
    the scheduled rate of $50.00 per month beginning the second month after his release
    from prison, then the trial court can hold a hearing pursuant to R.C. 2947.14 in order to
    determine his ability and/or willingness to pay said fines. However, the trial court must
    separate the amount of fines owed by Johnson from the amount of costs and attorney’s
    fees because while the court can attempt to collect the former itself, the latter two must
    be collected through a civil proceeding brought by the clerk of courts or the State after
    -22-
    Johnson is released from prison.
    {¶ 42} Johnson’s third assignment of error is sustained in part and overruled in
    part.
    {¶ 43} Johnson’s third assignment of error having been sustained in part and
    overruled in part, we hereby modify the trial court's final judgment entry by vacating and
    excising only the words “costs” “and court appointed legal fees” from the “financial
    obligation payment schedule” to the extent that the schedule compels Johnson to make
    monthly payments toward his court-appointed counsel fees and costs in connection with
    his criminal case. The judgment of the trial court is therefore affirmed as modified.
    ..........
    FAIN, J., concurs.
    HALL, J., concurring:
    {¶ 44} I agree that Appellant’s sentence is not contrary to law and that the record
    supports the trial court’s consecutive-sentence findings. I agree that the trial court
    properly disapproved shock incarceration and intensive-program prison. I also agree that
    the trial court could not impose an enforceable post-prison repayment schedule for court
    costs and for reimbursement of appointed-counsel fees. I write separately to comment on
    the standard of review applicable to sentencing and the majority opinion’s indirect shifting
    of the burden to produce evidentiary support in the record for appellate review.
    {¶ 45} At paragraph 14, the majority concludes: “We review [the] findings under
    the standard set forth in R.C. 2953.08(G)(2), which authorizes us to vacate Johnson’s
    consecutive sentences if we clearly and convincingly find that the record does not support
    them. See State v. Marcum, Slip Opinion No. 2016-Ohio-1002.” In my view, the holding
    -23-
    in Marcum allows a sentence to be vacated or modified “only if the appellate court finds
    by clear and convincing evidence that the record does not support the sentence.” 
    Id. at ¶
    23. The difference is that the majority’s quote is in the affirmative, requiring the State or
    the court to introduce information into the record to justify the sentence. The Marcum
    quote is in the negative. If the record does not contain information from which we can
    determine that the sentence is clearly wrong, then it stands, and we are without authority
    to adjust it. The majority’s quote puts the burden on the State or the court, incorrectly in
    my view, to insure there is information in the record to justify the sentence. This distinction
    is now of more import given Marcum’s application of the clearly-and-convincingly
    standard to all sentencing, not just to consecutive penalties. It is also particularly
    important with regard to sentencing following a plea where the record is often sparse,
    perhaps even where the defense or the court dispenses with a PSI report.
    {¶ 46} I previously have written that “even a record that is largely silent is not
    clearly and convincingly contrary to a trial court’s consecutive-sentencing determination
    unless there is substantial affirmative factual information in support of the defendant to
    conclude that the trial court is clearly wrong.” State v. Kay, 2d Dist. Montgomery No.
    26344, 2015-Ohio-4403, ¶ 27 (Hall, J., dissenting). I recognize our jurisprudence on this
    issue has been mixed, but in State v. Withrow, 2d Dist. Clark No. 2015-CA-24, 2016-
    Ohio-2884, a majority, not including this writer, adopted the sparse-record notion and
    further stated: “Therefore, the question is not whether the trial court had clear and
    convincing evidence to support its findings, but rather, whether we clearly and
    convincingly find that the record fails to support the trial court’s findings.” 
    Id. at ¶
    38, citing
    State v. Rodeffer, 2013-Ohio-5759, 
    5 N.E.3d 1069
    , at ¶ 31, citing State v. Venes, 2013-
    -24-
    Ohio-1891, 
    992 N.E.2d 453
    , at ¶ 21. The Withrow majority also commented that “[t]he
    dissenting opinion in Kay, 2d Dist. Montgomery No. 26344, 2015-Ohio-4403, is correct in
    that the consecutive nature of the trial court’s sentencing should stand unless the record
    overwhelmingly supports a contrary result. 
    Id. at ¶
    26 (Hall, J., dissenting).” Withrow, ¶
    39.
    {¶ 47} Regardless of my expressed concerns, in this case the trial court was
    meticulous in its findings, and the record decidedly supports the sentence imposed.
    Accordingly, I concur.
    ...............
    Copies mailed to:
    Jane A. Napier
    Andrew C. Schlueter
    Hon. Nick A. Selvaggio
    

Document Info

Docket Number: 2015-CA-24

Citation Numbers: 2016 Ohio 5160

Judges: Donovan

Filed Date: 7/29/2016

Precedential Status: Precedential

Modified Date: 7/29/2016