State v. Lieb , 2023 Ohio 574 ( 2023 )

[Cite as State v. Lieb, 2023-Ohio-574.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-22-025
Appellee Trial Court No. 2021-CR-141
v.
Adam Lieb DECISION AND JUDGMENT
Appellant Decided: February 24, 2023
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Anthony J. Richardson, II, for appellant.
*****
OSOWIK, J.
{¶ 1} Appellant, Adam Lieb, appeals the April 29, 2022 judgment of the Erie
County Court of Common Pleas sentencing him to 36 months in prison and a $7,500 fine
for a violation of R.C. 2907.21 (A)(3)(a) and (C), Compelling Prostitution (Count 11 of
the indictment), 18 months in prison and a $2,500 fine for a violation of R.C.2923.02(A)
and R.C. 2907.21(A)(1) and (C), Attempted Compelling Prostitution (Count 5 of the
indictment, as amended) and to 18 months in prison and a $2,500 fine for an additional
violation of R.C.2923.02(A) and R.C. 2907.21(A)(1) and (C), Attempted Compelling
Prostitution (Count 12 of the indictment, as amended). Counts 11 and 12 were ordered to
be served concurrently to each other but consecutive to Count 5, for an aggregate term of
incarceration of 54 months in prison and a fine of $10,000.
{¶ 2} The reasons that follow, we affirm the decision of the trial court.
{¶ 3} Appellant presents two assignments of error for our consideration.
Appellant’s first assignment of error states:
1. The trial court committed error by imposing fines without finding
appellant had the means or ability to pay.
{¶ 4} Appellant concedes that R.C. 2929.18 establishes that financial sanctions
may be imposed on an offender at sentencing. Lieb also makes no argument that the
court failed to make the necessary and proper findings that he had the ability to pay the
financial sanctions. There was no objection made before the trial court concerning the
imposition of the fines and court costs and Lieb makes no such objection in his appeal to
this court.
2.
{¶ 5} Appellant’s only objection to the imposition of the fines and court costs are
that these findings concerning his ability to pay the financial sanctions made by the trial
court at the sentencing hearing are not reflected in the judgment entry of sentencing. The
judgment entry of sentencing does not assess costs with any particularity but simply
checks off a box captioned “Defendant shall pay all court costs in this case.”
{¶ 6} Clearly, there is a discrepancy between the sentencing hearing transcript and
the sentencing entry as it concerns an explicit finding made by the trial court of Lieb’s
ability to pay the financial sanctions.
Analysis
{¶ 7} Court costs, costs, or costs of this action means any costs that the Revised
Code requires a court to impose upon an offender who has been convicted. State v.
Bricker, 6th Dist. Fulton No. F-21-013, 2022-Ohio-3494, ¶ 25, citing State v. Lantz, 6th
Dist. Fulton No. F-18-011, 2019-Ohio-3307.
{¶ 8} The costs of prosecution are mandatory, pursuant to R.C. 2947.23(A)(1), and
trial courts are obligated to impose the costs of prosecution irrespective of a defendant’s
ability to pay. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶
8. See also State v. Rohda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 13. Other
costs, such as the costs of confinement, are not mandatory but may be imposed after the
trial court finds the defendant has the ability to pay. See R.C. 2929.18(A)(5)(a)(ii); State
v. Lincoln, 6th Dist. Lucas No. L-15-1080, 2016-Ohio-1274, ¶ 14.
3.
{¶ 9} Before imposing a financial sanction under R.C. 2929.18, the court shall
consider the offender’s present and future ability to pay the amount of the sanction or
fine. A trial court is not required to expressly state that it considered a defendant’s ability
to pay a fine nor is a court is required to make findings of Lieb’s ability to pay. All that
is required is that the trial court consider his ability to pay.
{¶ 10} And, although preferred on appellate review, a trial court need not
explicitly state in its judgment entry that it considered a defendant’s ability to pay a
financial sanction. State v. Dahms, 6th Dist. Sandusky No. S-11-028, 2012-Ohio-3181, ¶
29, citing State v. Berry, 4th Dist. Scioto No. 04CA2961, 2006-Ohio-244, ¶ 43.
{¶ 11} A reviewing court may infer that a trial court considered the issue. State v.
Johnson, 6th Dist. Sandusky Case No. S-20-037, 2021-Ohio-3380, ¶ 28. An appellate
court will look to the totality of the record to determine whether the requirement has been
satisfied. Id.{¶ 12} In this case, the court engaged in a direct colloquy with appellant about
information contained in the Presentence Investigation Report. The court confirmed with
Lieb that he had been employed as a probation officer with the Sandusky Municipal
Court for almost 20 years, that he had no disabilities and that he did not have a bachelor
degree but was two years away from obtaining his degree in Criminal Justice. The court
further verified that at the time of sentencing, he had obtained full-time employment
earning $15 per hour and that he was 40 years old. The court also inquired as to checking
4.
and savings accounts that were held by appellant and that he was married and had two
minor children. The court also confirmed with Lieb the nature of any existing financial
obligations such as mortgage and car payments.
{¶ 13} The record in this case demonstrates that the trial court adequately
considered present and future ability of Lieb to pay the fines and court costs imposed in
these cases. Upon a review of the record, we find appellant’s first assignment of error to
be not well-taken and denied.
{¶ 14} Appellant’s second assignment of error states:
2. The trial court committed error by considering alleged victims
who were not linked to proven violation of law.
{¶ 15} Lieb argues that since he entered pleas on Counts 5 (Victim1), 11 and 12 (a
minor, Victim 3) the court erred in considering statements from Victim 2 whose charges
were dismissed as part of a plea agreement.
{¶ 16} Appellant acknowledges that a victim may make a statement before
sentencing pursuant to R.C. 2930.13. However, he argues that since the counts involving
Victim 2 were dismissed as part of the plea agreement, this victim does not meet the
statutory definition of a victim pursuant to R.C. 2930.01(H).
{¶ 17} That section states:
H) “Victim” means either of the following:
5.
(1) A person who is identified as the victim of a crime or specified
delinquent act in a police report or in a complaint, indictment, or
information that charges the commission of a crime and that provides the
basis for the criminal prosecution or delinquency proceeding and
subsequent proceedings to which this chapter makes reference.
{¶ 18} Appellant ignores that Victim 2 is specifically identified in Count 9 of the
indictment and would clearly fit within this statutory definition. Therefore, appellant’s
claim that Victim 2 is not a victim under this statute is meritless.
{¶ 19} Regardless, this court has addressed this precise issue in State v.
Boswell, 6th Dist. Erie No. E-18-053, 2019-Ohio-2949 ¶ 29 where we held:
Ohio law directs that a sentencing court is not confined to considering the
evidence that strictly relates to the conviction offense because the court is
no longer concerned with the narrow issue of guilt. State v. Bowser, 186
Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.). Indeed,
we have recognized that sentencing courts may consider a broad range of
otherwise inadmissible evidence, including “charges that were reduced or
dismissed under a plea agreement.” State v. Thompson, 6th Dist. Sandusky
No. S-11-052, 2013-Ohio-1594, ¶ 42, citing State v. Degens, 6th Dist.
Lucas No. L-11-1112, 2012-Ohio-2421, ¶ 19; State v. Robbins, 6th Dist.
Williams No. WM-10-018, 2011-Ohio-4141, ¶ 9; State v. Banks, 10th Dist.
6.
Franklin Nos. AP-1065, 10AP-1066, and Franklin Nos. 10AP-1067, 2011-
Ohio-2749, ¶ 24; State v. Johnson, 7th Dist. Mahoning No. 10 MA 32,
2010-Ohio-6387, ¶ 26.
{¶ 20} Therefore, the trial court’s consideration of facts and statement of the
victim pertaining to the dismissed charges was permissible.
{¶ 21} Appellant argues that our holding Boswell is unfair and its application is
contrary to a presumption of innocence in dismissed charges. That broad-brush argument
is seriously flawed and we are not persuaded to re-visit our holding in that case.
Accordingly, we find appellant’s second assignment of error to be not well-taken and
denied.
Conclusion
{¶ 22} On consideration whereof, the judgment of the Erie County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24(A)(4).
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
7.
State of Ohio
v. Adam Lieb
E-22-025
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
8.