State v. Croom , 2014 Ohio 2315 ( 2014 )

[Cite as State v. Croom, 2014-Ohio-2315.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25949
v. : T.C. NO. 10CR2215
ANTHONY L. CROOM : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 30th day of May , 2014.
..........
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
J. ALLEN WILMES, Atty. Reg. No. 0012093, 7821 N. Dixie Drive, Dayton, Ohio 45414
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Anthony
Croom,
[Cite as State v. Croom, 2014-Ohio-2315.]
filed October 15, 2013. On February 29, 2012, Croom was convicted, following a trial by
jury, of aggravated murder, two counts of murder, and two counts of felonious assault, with
multiple firearm specifications. He was sentenced to life without the possibility of parole,
plus an additional consecutive three-year term. The trial court ordered Croom to pay
restitution in the amount of $7,757.96 to Mary Hurd, the grandmother of the victim,
Anthony Hurd, and restitution in the amount of $2,534.00 to Thomas Hurd, the victim’s
father. On August 2, 2013, this Court affirmed Croom’s conviction, but found that the trial
court committed plain error in imposing restitution, since there was “no evidence in the
record that the trial court considered Croom’s present or future ability to pay the restitution;
the trial court merely ordered Croom to make restitution.” State v. Croom, 2d Dist.
Montgomery No. 25094, 2013-Ohio-3377, ¶ 95. We note that this Court also determined
that “the trial court erred by assessing the costs of extradition against Croom,” due to his
indigency. Croom, ¶ 98. The record reflects that Croom appealed this Court’s decision to
the Ohio Supreme Court, which declined jurisdiction1. Croom herein appeals from the trial
court’s decision, following a hearing upon remand, to again impose restitution in the amount
of $7,757.96 to Mary Hurd and restitution in the amount of $2,534.00 to Thomas Hurd.
{¶ 2} In remanding the matter for the trial court to re-consider the issue of
restitution, this Court noted as follows:
The State argues that Croom can be employed in an institutional work
program, and that any funds therefrom can be used to pay the restitution. We
conclude that this argument is inconsistent with the requirement of R.C.
1
The record reflects that the Ohio Supreme Court sent a cost bill in the
amount of $113.00 to Croom.
3
2929.19(B)(5); under this argument, because all inmates can work for pay,
they should automatically be subject to paying restitution. This would render
superfluous the requirement that the trial court determine ability to pay.
Therefore, we conclude that the possibility of working while in prison is one
factor that a trial court can use in determining an inmate’s ability to pay
financial sanctions.
In the case before us, we find no evidence in the record that the trial
court considered Croom’s present or future ability to pay the restitution; the
trial court merely ordered Croom to make restitution. Nothing in the record
suggests that Croom is anything other than a 43-year old indigent without any
assets with which to pay the ordered restitution. The Pre-Sentence
Investigation Report, which Croom declined to participate in, does not set
forth any assets. Nor does the record indicate the level of Croom’s
education. While there is evidence in the record that he has worked as a
“chef” in the past, there is no indication that he had any training or education
in that field. Furthermore, Croom was sentenced to a term of life without
parole, making it unlikely that he will be employed in the future. While it is
possible that he can be employed while in prison, there is nothing in the
record upon which to reach this conclusion. * * *
{¶ 3} The record reflects that counsel was appointed to represent Croom on
September 19, 2013, and a hearing was scheduled for September 24, 2013 on the issue of
restitution. The State filed “State’s Memorandum with Respect to Ability to Pay
4
Restitution,” which is time-stamped September 23, 2013 2:31:05 PM. The State asserted as
follows:
***
Because inmates are allowed to work in programs and receive
compensation for that work, and also because it has been specifically
contemplated that restitution could be taken from those wages, there is clearly
an ability for a working inmate to make payments towards restitution, even
one who will be incarcerated for the rest of his life.
The defendant began his prison sentence on February 24, 2012. Since
then, he has consistently worked in the prisons as shown by his institutional
summary (Exhibit “A”). Prior to being arrested for the murder of Anthony
Hurd, the evidence at trial showed that the defendant had worked as a chef at
a Bravo restaurant in Indiana. Prior to that, the evidence at trial showed that
this defendant had worked in the Indiana prison system (and this is one of the
ways he came into contact with the various inmates to whom he made
admissions).
The defendant - whose date of birth is December 29, 1968 - appears to
be a healthy 44 year-old man who is able to hold jobs in prison. Even
though he has been sentenced to incarceration for the remainder of his life,
this should not excuse him from paying restitution. In fact, this sentence will
give him plenty of time to contribute to his restitution Order from his wages.
***
[Cite as State v. Croom, 2014-Ohio-2315.]
{¶ 4} Exhibit A is an Institutional Summary Report, dated September 18, 2013. It
lists the jobs Croom has performed, their departments and locations within the Corrections
Reception Center, as well as the start and end dates for each job. The report reflects that
since February 24, 2012, Croom has held the following jobs for varying lengths of time:
“Porter,” “Veg Prep Room Wkr,” “Food Service Worker,” and “Reception.” The report
reflects that Croom was in “Segregation” three times for a total of 26 days.
{¶ 5} Croom filed a “Motion to Waive Imposition of Financial Sanctions,” which
is time-stamped September 23, 2013, 7:10:45 PM. Attached to the motion is a one page
supporting memorandum and Croom’s Affidavit of Indigency, which lists no assets or
income. At the restitution hearing, counsel for Croom stated, “It’s my understanding that
[Croom] gets paid about $17 a month to do this work, and even that right now, he gets none
of it because it goes toward the court costs that have been imposed.” Defense counsel then
directed the court’s attention to State v. Russell, 2d Dist. Montgomery No. 23454,
2010-Ohio-4765, upon which he relied in his motion, and the following exchange occurred:
***
MR. LACHMAN: * * *
So I believe the mandate of the Second District is very clear given a
situation where the Defendant in this case has been sentenced to the rest of
his life in prison. He does not as a matter of law have a present or future
ability to pay, and therefore this Court should not order restitution in this
matter.
THE COURT: Excuse me one second. Ms. Auzene, can you get - -
on my desk there is the Second District’s opinion on this matter.
6
Mr. Lachman, it would have been real helpful to me if you had given
me a courtesy copy of what you filed because I have not read and I don’t
know exactly what you’re talking about. And the fact that you filed it today
and didn’t give me a copy doesn’t give me much assistance in rendering the
decision.
I did read the decision of the Second District Court of Appeals and it
did - - and my understanding of that was that they ordered me to look at this
Defendant’s apparent present ability to - - apparent present ability in which to
see whether or not - - thank you, but I really don’t have time to read it.
MR. LACHMAN: Your Honor, I was just appointed on this matter
late last week. I apologize.
THE COURT: Well, and I understand that, but, you know.
MR. LACHMAN: I understand.
THE COURT: But you could have helped me if you - - because you
came up here this morning before we took a break. I had time. I could have
read this. I could have digested it and I could have not been making a
decision off, you know, from the hip at this point, you know. And it just
doesn’t help me when you cite from something you filed and didn’t let me
know about.
MR. LACHMAN: Sorry, Your Honor.
THE COURT: I mean that’s, you know, I can look through it, but
the Second District told me that we needed to review the Defendant’s
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apparent present ability to earn money. It’s my understanding that this
Defendant is still at the corrections reception center because of his abilities.
And to earn money, he’s got various jobs. That’s what the State has
provided me showing that he’s had various jobs and has elected that that’s
what he wants to do, so he is working. He has the ability to earn money.
A jury has decided that this Defendant did commit the homicide of
which I find to be a very intentional and brutal act. And I think that the
family is entitled to have some kind of restitution for economic loss.
So based upon the fact that the Defendant has an apparent present
ability to earn money, albeit not as much as he might like to, and the fact that
he has - - appears to be of sound body and has no exhibiting of any injuries
and is able to work, the Court is going to affirm everything in the termination
entry, but order that the Defendant must pay complete restitution for
economic loss to Mary Hurd, H-U-R-D, in the amount of $7,757.96 and to
Thomas A. Hurd for economic loss in the amount of $2,534.00 based on his
present and future ability to pay.
MR. LACHMAN: Your Honor, if I may, I just - - can we just - - the
record clarify that the document provided by the State does not indicate how
much he gets paid?
THE COURT: I’m sorry.
MR. LACHMAN: Can we clarify - - can we just make that the record
does reflect - -
8
THE COURT: Defendant’s motion does reflect that amount.2 The
Defendant’s - -
MR. LACHMAN: No, no, no. My point is that you talk about that
you have a report. It doesn’t show what he makes. And I think that is a
relevant analysis (sic) just to say he works.
THE COURT: Well, the fact that he works means that he should be
able to pay for the wrong that he did. It was an intentional act. He chose to
kill someone. He came from Indiana and did this horrible act. And I’m
saying he should pay for it. And he’s working, so restitution should be
ordered.
***
{¶ 6} Croom asserts one assignment of error herein as follows:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS
DISCRETION BY CONCLUDING THAT APPELLANT HAD THE PRESENT OR
FUTURE ABILITY TO PAY RESTITUTION HEREIN.”
{¶ 7} We initially note that on February 28, 2014, the State filed a “Motion for
Leave to Exceed Page Limitation,” and the supporting memorandum thereof provides in part
that in “order to respond to all of Appellant’s arguments, counsel for the State has not been
able to prepare a brief that does not exceed twenty-five pages in length.” This Court
granted the State’s motion. The State’s subsequently filed 33 page brief, however, is a copy
2
The trial court indicated that she did not read Croom’s motion. Neither it
nor the State’s motion indicate Croom’s earnings.
9
of the brief the State filed in Croom’s direct appeal; it is addressed to the ten initial
assignments of error that Croom raised therein. We note that on direct appeal, Croom’s
tenth assignment of error was addressed in part to the issue of restitution, which resulted in
the remand. Thus, we are at a loss as to why the State filed essentially the same brief a
second time, addressing primarily assignments of error we had previously overruled, rather
than producing a new brief addressing the current solitary assignment of error. We
discourage the State from engaging in this practice in the future, since the practical effect
herein is that no responsive brief has been filed by the State.
{¶ 8} R.C. 2929.18(A)(1) permits a trial court to order an offender to pay
restitution to a victim's survivors to compensate for the victim's economic loss. R.C.
5145.16(A) provides: “The department of rehabilitation and correction shall establish work
programs in some form for as many prisoners as possible who are in the custody of the
department * * * .” R.C. 5145.16(C) provides that the department of rehabilitation and
correction “* * * in establishing and administering the work programs * * *” may “(8)
Allocate the earnings of the prisoners” with “(b) Up to twenty-five percent of the earnings
to be distributed * * * (i) To the victims of the prisoner’s offenses for restitution.” Ohio
Adm Code 5120-3-01(B) provides that “Inmate labor opportunities and job assignments fall
within the following categories: (1) ‘Inmate labor assignment’ * * *(2) ‘Private employment’
* * * (3) ‘OPI assignments’ * * * (4) ‘Work program assignments’ * * * .” Ohio Adm.
Code 5120-3-01 contemplates full-time, part time, and temporary assignments. Ohio
Adm. Code 5120-3-08 governs inmate compensation for work program assignments and
related matters, and it identifies seven inmate categories, each with a corresponding
10
compensation rate. The rates range from zero to $24.00 dollars a month.
{¶ 9} As he did below, Croom asserts that the matter herein is analogous to
Russell. Therein, this Court concluded that the trial court erred in ordering restitution of
more than $15,000.00 without considering Russell’s ability to pay it. This Court noted:
* * * Under R.C. 2929.19(B)(6), a trial court must consider an
offender’s present and future ability to pay before imposing a financial
sanction such as restitution. “The trial court does not need to hold a hearing
on the issue of financial sanctions, and there are no express factors that the
court must take into consideration or make on the record.” State v. Culver,
160 Ohio App.3d 172, 826 N.E.2d 367, 2005-Ohio-1359, ¶ 57. A trial court
need not even state that it considered an offender’s ability to pay. State v.
Parker, Champaign App. No. 03CA0017, 2004-Ohio-1313, ¶ 42. However,
the record should contain some evidence that the trial court considered the
offender’s ability to pay. In Parker, we upheld financial sanctions where the
record included documentation of a defendant’s financial affairs, including a
presentence investigation report, and the record demonstrated that the trial
court had considered the report for sentencing purposes.
* * * With regard to Russell’s present ability to pay, the record
contains no testimony about his having any significant assets. He was living
in an apartment at the time of the instant offenses, and he was working as a
barber in California at the time of his arrest. He filed an affidavit of indigency
in the proceedings below, and he was represented by the Ohio Public
11
Defender’s office. Although a presentence investigation report was filed in
this case, it contains no additional information about Russell’s financial
affairs. Therefore, nothing in the record supports an inference3 that the trial
court considered his present ability to pay restitution of more than $15,000.
With regard to Russell’s future ability to pay, trial testimony
established that he once operated his own barber shop. Moreover, the record
reflects that the trial court considered the presentence investigation report at
sentencing. The report indicated that Russell was twenty-nine years old at
the time of the instant offenses. It further indicated that he was a licensed
barber. The report also revealed that Russell had obtained a GED and had
completed one and one-half years of college. Finally, the report
characterized him as being in good physical and mental health. While these
facts suggest that Russell might be employable, we note that he received a
sentence of forty and one-half years to life in prison. As a result, Russell
will be approximately seventy years old, at least, if he ever has the good
fortune to be released from prison. In light of this fact, we cannot infer that
the trial court considered Russell’s future ability to pay when it ordered
restitution of more than $15,000. Cf. State v. Napper, Ross App. No.
06CA2885, 2006-Ohio-6614, ¶ 16 (reversing a restitution order where it was
3
“Where the trial court fails to make an explicit finding on a defendant's
relative ability to pay, this court has observed that a trial court's consideration of
this issue may be ‘inferred from the record under appropriate circumstances.’ * *
*.” State v. Rose, 2d Dist. Montgomery No. 24196, 2011-Ohio-3616, ¶ 11.
12
unclear how a defendant with no assets and a prison sentence of fifty-one
years to life would have the ability to pay). * * * Russell, ¶ 62-64.
{¶ 10} In State v. Garrett, 2d Dist. Montgomery No. 25426, 2013-Ohio-3035, this
Court reversed and vacated a restitution order where Garrett received a 16 year sentence, to
be served concurrently to an aggregate term of 30 years to life that was imposed in another
matter. The restitution ordered was in the amount of $1,274.00, and the trial court
acknowledged at sentencing that “‘it’s a lot of speculation’ regarding Garrett’s future ability
to pay.” Id., ¶ 9. This Court reasoned as follows: “While the State asserts that ‘Garrett will
have the opportunity to earn wages for work while in the institution, and approved sources
may deposit funds into his account,’ from which restitution may be paid, this argument is
highly speculative and ignores the statutory mandate in R.C. 2929.19(B)(5) that the trial
court determine ability to pay.” Id.
{¶ 11} This Court herein remanded this matter to the trial court to reconsider the
issue of restitution, namely Croom’s present and future ability to pay it. The transcript
reflects that the trial court considered Exhibit A in imposing restitution, and its judgment
entry of conviction provides that it considered the presentence investigation report. Exhibit
A reflects that Croom had multiple work program assignments. It does not, however, set
forth the amount of compensation that Croom received or his inmate category, nor does it
indicate whether his jobs were full time or part time. Croom was not receiving pay while in
segregation. Defense counsel indicated his “understanding that [Croom] gets paid about
$17 a month to do this work, and even that right now, he gets none of it because it goes
toward the court costs that have been imposed.”
13
{¶ 12} The presentence investigation report provides, “[i]n light of Mr. Croom’s
unwillingness to participate in the PSI interview, a PSI report could not be completed.” The
report provides that Croom’s adult felony record includes an eight year sentence in 1987
for forgery and burglary; a 160 month sentence in 1994 for possession of a firearm by a
felon, and that his subsequent supervised release was revoked due to a parole violation,
resulting in an 18 month sentence; and that he was sentenced to a six year term in 2007 for
possession of a firearm by a serious violent felon. The report contains no information about
Croom’s level of education, assets, employment history, work experience, or physical and
mental health. In other words, nothing in the report suggests that Croom has a present and
future ability to pay restitution.
{¶ 13} We additionally note that the trial court’s decision seems to be based at
least in part on the nature of Croom’s offense and the Hurds’ economic loss, and not
Croom’s ability to pay; the trial court found the homicide “to be a very intentional and brutal
act,” and noted that “the family is entitled to have some kind of restitution for economic
loss.” The court further again stressed that the offense “was an intentional act. He chose to
kill someone. He came from Indiana and did this horrible act. And I’m saying he should
pay for it.” Croom’s mens rea, the Hurds’ economic loss, and the fact that Croom traveled
from another jurisdiction to commit his offense here have no bearing on Croom’s present
and future ability to pay restitution in the amount of $10, 291.96. Most significantly, in the
course of chastising defense counsel regarding his purported failure to timely provide her
with a “courtesy copy” of his motion, the trial court indicated that she did not “have time to
read” the short motion, that she did not know what defense counsel was talking about when
14
he discussed Russell, and that accordingly, she was making her decision “from the hip at this
point.”
{¶ 14} Finally, we conclude that our decision herein is not inconsistent with this
Court’s decision in State v. Fischer, 2d Dist. Montgomery No. 25618, 2013-Ohio-4817.
Therein, this Court affirmed an order of restitution in the amount of $6,025.18, imposed
upon a defendant serving a sentence of fifty years. There was no suggestion in Fischer, as
here, that the trial court’s decision imposing restitution was based upon factors that bore no
relation to his present and future ability to pay, nor that the trial court admittedly and
arbitrarily rendered judgment “from the hip.” As noted by the Fourth District, “courts have
no discretion to apply an improper analysis or process in deciding an issue even where they
may have discretion in the ultimate decision of the merits.” State v. Haney, 180 Ohio
App.3d 554, 2009-Ohio-149, 906 N.E.2d 472 (4th Dist.). An “[a]buse of discretion” has
been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v.
Hair Surgeons, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985). A decision is unreasonable
if there is no sound reasoning process that would support that decision. AAAA Enterprises,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d
597 (1990); Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶
7. It seems incongruous to find that appellant could afford to make restitution in the amount
of $10,291.96 but is indigent and unable to pay court costs. We note no court costs were
assessed. No indication appears in the record that appellant has an independent external
means of support. As in Garrett, Croom faces a life sentence with no probability of release,
and we note that the amount of restitution imposed on Croom is much greater than that
15
imposed upon Garrett. For the foregoing reasons, we conclude that the trial court’s decision
is not supported by a sound reasoning process, and that the court accordingly abused its
discretion in imposing restitution.
{¶ 15} Croom’s assigned error is sustained, and the court’s restitution order is
reversed and vacated. The matter is remanded to the trial court for the sole purpose for the
trial court to enter an order vacating restitution.
..........
FAIN, J., concurs.
HALL, J., concurring in judgment by separate opinion:
{¶ 16} In this case, on this record, I concur in judgment.
{¶ 17} Nevertheless, I suggest that the result here should not be considered as a
signal that an offender serving a very long prison term will inevitably be absolved from
having to pay restitution to the victim of his or her offense. Prisoners can work, even
though their compensation is very modest. Furthermore, the amount they may be required to
pay toward restitution is already limited by Ohio Administrative Code Section
5120-3-09(A)(2) which provides that: “Up to twenty-five per cent of the net earnings may be
used for restitution of the victim(s) of the inmate's offense(s), if the inmate voluntarily
requests or is under court order to make restitution.” Therefore, just because an offender is
serving a very long prison sentence does not automatically result in an exclusion from the
obligation to pay restitution.
..........
Copies mailed to:
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Carley J. Ingram
J. Allen Wilmes
Hon. Frances E. McGee