State v. Auxter , 2017 Ohio 1311 ( 2017 )

[Cite as State v. Auxter, 2017-Ohio-1311.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals Nos. S-16-020
S-16-021
Appellee
Trial Court Nos. 16 CR 58
v. 16 CR 91
David A. Auxter, Jr. DECISION AND JUDGMENT
Appellant Decided: April 7, 2017
*****
Timothy F. Braun, Sandusky County Prosecuting Attorney,
for appellee.
Nathan Oswald, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, David A. Auxter, Jr., appeals from the May 13, 2016 judgments
of the Sandusky County Court of Common Pleas imposed in two separate cases, which
have been consolidated for purposes of appeal. In Sandusky County case No. 16 CR 58,
appellant was convicted of unlawful sexual conduct with a minor, a violation of R.C.
2907.04(A), a felony of the fourth degree, and was sentenced to 18 months
imprisonment. In Sandusky County case No. 16 CR 91, appellant was convicted of
permitting drug abuse, a violation of R.C. 2925.13, a misdemeanor of the first degree,
and sentenced to 180 days incarceration in the Sandusky County Jail. This latter sentence
was ordered to be served concurrently with the sentence imposed in case No. 16 CR 58.
For the reasons which follow, we affirm.
{¶ 2} On appeal, appellant asserts the following assignments of error:
Assignment of Error No. 1. THE RECORD CLEARLY AND
CONVINCINGLY FAILS TO SUPPORT THE IMPOSITION OF THE
MAXIMUM SENTENCES ON MR. AUXTER.
Assignment of Error No. 2. THE TRIAL COURT ERRED BY
NOTIFYING MY AUXTER IT COULD ORDER HIM TO PERFORM
COMMUNITY SERVICE IF HE FAILS TO PAY THE COSTS OF HIS
APPOINTED COUNSEL.
{¶ 1} The state’s summary at the plea hearing and the presentence investigation
report presented the following underlying facts for the charges. On September 15, 2015,
appellant and a 13-year-old boy were found unconscious in a vehicle and were revived by
use of a drug which reverses the effects of opiates. Appellant denied having snorted
heroin. Also found in the vehicle was Fentanyl, a Schedule II drug.
{¶ 2} On December 9, 2015, appellant engaged in sexual contact with a 13-year-
old minor. The child was reported missing after having left for school. She was
2.
eventually located with appellant, where her probation officer suggested she would most
likely be found. The child first claimed appellant had sexually assaulted her and then
recanted her allegations and claimed it was “consensual” sex, which appellant admitted.
Maximum Sentence
{¶ 3} In his first assignment of error, appellant argues that the record does not
support imposition of the maximum sentence for each offense.
{¶ 4} Pursuant to R.C. 2929.14, the maximum sentence for a felony of the fourth
degree is a prison term of 18 months and pursuant to R.C. 2929.24(A)(1), the maximum
sentence for a misdemeanor of the first degree is a jail term of no more than 180 days.
{¶ 5} In sentencing, a trial court must bear in mind the overriding purposes of
sentencing, which are “to protect the public from future crime by the offender and others
and to punish the offender” and formulate a sentence which is reasonably calculated to
achieve these purposes. R.C. 2929.11(A) and (B); 2929.21(A) and (B). Furthermore, the
sentence must be “commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact on the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.” R.C. 2929.11(B); 2929.21(B). The
trial court must consider “the need for incapacitating the offender, deterring the offender
and others from future crime, rehabilitating the offender, and making restitution to the
victim of the offense, the public, or both” in felony sentencing, R.C. 2929.11(A) and “the
impact of the offense upon the victim and the need for changing the offender’s behavior,
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rehabilitating the offender, and making restitution to the victim of the offense, the public,
or the victim and the public” in misdemeanor sentencing, R.C. 2929.21(A).
{¶ 6} In exercising its discretion in felony sentencing and to comply with the
purposes and principles of sentencing, R.C. 2929.12(B)-(E) set forth factors concerning
the seriousness of the offense and recidivism factors that the court must consider in
addition to any other relevant factors. In misdemeanor sentencing, R.C. 2929.22(B)-(D)
sets forth the factors the trial court must consider as well as any other relevant factors. In
sentencing, the court has discretion to impose any sentence within the sentencing range
for the degree of the offense unless a more specific statute controls. R.C. 2929.14(A);
2929.22(A).
{¶ 7} The trial court’s findings do not need to be specifically stated on the record.
State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42; State v.
Hughley, 8th Dist. Cuyahoga Nos. 92588, 93070, 2009-Ohio-5824, ¶ 14, superseded by
statute on other grounds as stated in State v. Polus, 2014-Ohio-2321, 12 N.E.3d 1237,
¶ 14 (6th Dist.). A presumption arises that the trial court did consider the statutory
factors unless the record clearly shows otherwise. State v. Hudson, 7th Dist. Mahoning
No. 15 MA 0134, 2017-Ohio-645, ¶ 37; Hughley at ¶ 16. Furthermore, the trial court is
no longer required to make certain findings before imposing the maximum sentenced
permitted by statute. Hudson at ¶ 40; State v. Jones, 6th Dist. No. L-16-1014, 2017-
Ohio-413, ¶ 13 (holding R.C. 2929.22(C) is unconstitutional).
4.
{¶ 8} Pursuant to R.C. 2953.08(G)(2), “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.” State v. Marcum, 146 Ohio St. 3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 1. Clear and convincing evidence has been defined as
that measure or degree of proof which is more than a mere “preponderance
of the evidence,” but not to the extent of such certainty as is required
“beyond a reasonable doubt” in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus.
The standard of review for a misdemeanor sentence is whether the trial court abused its
discretion. City of Cleveland v. Meehan, 8th Dist. Cuyahoga No. 100202, 2014-Ohio-2265,
¶ 7. “The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v.
Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 9} Appellant argues that the trial court did not consider the factors indicating
his conduct was “less serious than conduct normally constituting the offense, R.C.
2929.12(C), nor facts which mitigated against appellant’s conduct, R.C. 2929.12(C)(4).
He argues the trial court did not consider (1) his cognitive delays as a mitigating factor
(and may have considered it instead as a significant factor in why the offense occurred);
5.
(2) appellant’s remorse and the facts that he had taken responsibility for his actions by
pleading guilty and desired to participate in drug and alcohol abuse treatment; and
(3) appellant’s ability to be rehabilitated evidenced by the fact that he had stayed out of
trouble while in jail pending his trial, his counselors had noted a change in his behaviors,
and the guards talked about helping appellant get a job when he was released.
{¶ 10} Furthermore, appellant agues the trial court gave no indication it considered
appellant’s conduct to be “more serious than conduct normally constituting the offense,”
R.C. 2929.12(B). While appellant had been convicted of prior misdemeanor offenses, he
contends he did not have a significant criminal history and this was his first serious
offense as an adult. Yet, appellant argues, the trial court sentenced appellant as if had
committed the worse forms of the offenses and there were no mitigating factors. The
only basis the court stated for imposing the maximum sentences was because a minor was
involved. Appellant argues that fact is actually an element of the offense and, therefore
should not be a factor for imposing the maximum sentence or else everyone who violated
R.C. 2907.04 would deserve the maximum sentence.
{¶ 11} At the sentencing hearing, the state did not make a recommendation as part
of the plea negotiation agreement. The victim’s grandmother spoke on behalf of the
victim. She advocated for a sentence which would prevent appellant from harming
another child because she believed he had done such crimes before and would again. She
stated his actions had seriously harmed the child in this case and her family.
6.
{¶ 12} Appellant’s counsel requested at the sentencing hearing that the court
consider that appellant had a ninth grade education, some cognitive delays, is remorseful,
had taken responsibility for his actions by entering a guilty plea; wanted help for his drug
and alcohol abuse, had already exhibited a change in his behavior according to jail
counselors; had stayed out of trouble while in jail; has been promised aid to obtain a job
by the jail guards; and he desired to obtain his GED.
{¶ 13} The court noted from the presentence investigation report that appellant did
not have a significant criminal history as a juvenile, but he had been convicted, as an
adult, of theft, assault, and driving without a license. The record also reflected that
appellant was unemployed at the time of the offenses; his probation officer reported
appellant had issues with authority at home; during the presentence interview, appellant
“expressed no remorse and did not grasp the seriousness of the offense;” appellant self-
reported that he had been diagnosed with ADHD and had an IEP while in school; the
investigator noted appellant’s handwriting and speech indicated some “educational
concerns”; and appellant admitted he had been drinking since age 13 and using
marijuana, cocaine, heroin, and fentanyl.
{¶ 14} In reviewing the need to incapacitate and rehabilitate appellant, deter others
from future crime, and the need to achieve the two overriding purposes of felony
sentencing, the court indicated that it took the offenses in this case very seriously because
they were offenses against minors who cannot defend themselves.
7.
{¶ 15} Upon a review of the entire record, we find that there is clear and
convincing evidence in the record that appellant was beginning to engage, as an adult, in
a pattern of committing offenses involving minors which had exposed them to great
harm. He had a history of minor offenses as a teenager and a serious drug abuse history.
Despite evidence of some cognitive issues, there is nothing in the record indicating that
he is unable to conform his conduct to avoid illegal activities. While appellant had
entered a guilty plea, he indicated no remorse during his presentence investigation
interview. Considering the evidence against him, the guilty plea could have been
motivated by other considerations. While appellant had exhibited some positive behavior
while detained prior to trial and this fact suggests that he can be rehabilitated, it also
suggests that incarceration may be necessary for his rehabilitation to occur. Therefore,
we find appellant’s sentences are supported by clear and convincing evidence in the
record and the trial court considered the statutory factors required by law. Appellant’s
first assignment of error is found not well-taken.
Community Service Sanction for Unpaid Costs
{¶ 16} In his second assignment of error, appellant argues the trial court erred by
notifying appellant that if he failed to pay the costs of his appointed counsel, he would be
ordered to perform community service.
{¶ 17} Appointed counsel fees and expenses cannot be taxed as part of the costs of
prosecution, R.C. 2941.51(A), or imposed as a financial sanction under R.C. 2929.18.
State v. Miller, 2d Dist. Clark No. 08CA0090, 2010-Ohio-4760, ¶ 59. However, the
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defendant can be ordered to pay his appointed counsel’s fees and expenses if the court
finds the defendant “has, or reasonably may be expected to have, the means to meet some
part of the cost of the services rendered to the person.” R.C. 2941.51(D). See also R.C.
120.05(D).
{¶ 18} While included in the sentencing judgment, costs of prosecution are not
punishment; they are a civil obligation arising out of the criminal proceeding. State v.
Joseph, 125 Ohio St. 3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 20. Compare State v.
White, 103 Ohio St. 3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 9-15. Likewise, the right
to collect the costs of appointed counsel, granted to the state by R.C. 2941.51(D), must be
enforced in civil action. State v. Miller, 2d Dist. Clark No. 08CA0090, 2010-Ohio-4760,
¶ 61, citing State v. Crenshaw, 145 Ohio App. 3d 86, 761 N.E.2d 1121 (8th Dist.2001);
State v. Hill, 2d Dist. Clark No. 04CA0047, 2005-Ohio-3877, ¶ 6.
{¶ 19} However, R.C. 2947.23(B) authorizes a court “to impose community
service upon the defendant as a method to pay off or forgive costs” of prosecution. State
v. White, 103 Ohio St. 3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 15. There is no
corresponding statutory provision for enforcing the payment of appointed attorney fees
and expenses by converting the fees and expenses to community service.
{¶ 20} The Ohio Supreme Court has held that criminal defendants, who have not
yet been convicted, cannot be required to do community service to pay the cost of
appointed counsel. State ex rel. Carriger v. Galion, 53 Ohio St. 3d 250, 251, 560 N.E.2d
194 (1990). In dicta, the Ohio Supreme Court also concurred with the opinion of the
9.
New Hampshire Supreme Court in Opinion of Justices, 121 N.H. 531, 533, 431 A.2d 144
(1981), that the conversion of attorney fees and expenses to community service for
convicted defendants would constitute involuntary servitude, a violation of the Thirteenth
Amendment to the United States Constitution, because it is not imposed as a punishment
but as a remedy for nonpayment of a civil debt. Carriger at 251. Therefore, we have
held that a trial court may not order unpaid attorney fees and expenses to be converted to
community service. State v. Bullard, 6th Dist. Sandusky Nos. S-15-026, S-15-029, 2016-
Ohio-3504, ¶ 9.
{¶ 21} In the case before us, the trial court’s notice that appellant’s unpaid
appointed attorney fees and expenses could be converted to community service if unpaid,
was erroneous. Appellant’s second assignment of error is well-taken.
{¶ 22} We hereby find that the portion of each judgment of the Sandusky County
Court of Common Pleas notifying appellant that his unpaid appointed counsel fees and
expenses could be converted to community service is a nullity and void. Having found
the trial court did not otherwise commit error prejudicial to appellant and that substantial
justice has been done, the judgments are affirmed. Appellant is ordered to pay the court
costs incurred on appeal.
Judgments void, in part,
and affirmed, in part.
10.
State v. Auxter
C.A. Nos. S-16-020
S-16-021
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
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