State v. Blessing ( 2013 )

[Cite as State v. Blessing, 2013-Ohio-392.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 56
v. : T.C. NO. 11CR278
MARIA BLESSING : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 8th day of February , 2013.
..........
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
MARK A. DETERS, Atty. Reg. No. 0085094, 1800 Lyons Road, Dayton, Ohio 45458
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Maria Blessing pled guilty in the Clark County Court of Common
Pleas to complicity to having weapons while under disability, a third-degree felony, and
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obstructing justice, a fifth-degree felony. A second count of obstructing justice was
dismissed as part of the plea. After a pre-sentence investigation, the trial court sentenced
Blessing to the maximum one year in prison for obstructing justice and to the maximum five
years for complicity to having weapons while under disability, to be served concurrently.
Blessing appeals from her conviction.
I.
{¶ 2} Between October 1, 2010 and February 28, 2011, Blessing aided Michael
Ferryman in obtaining an H&R .12 gauge shotgun from Blessing’s father, Gene Blessing.
After Mr. Blessing purchased the gun for Ferryman, Blessing aided and abetted Ferryman as
he continued to have, carry, and use the shotgun in Clark County. Blessing knew that
Ferryman had been committed to a mental institution and that he had been found by a court
to be a mentally ill person subject to hospitalization; these facts rendered Ferryman ineligible
to have a firearm.
{¶ 3} Ferryman subsequently used the shotgun to kill Clark County Deputy Sheriff
Suzanne Waughtel Hopper and to wound German Township Police Officer Jeremy Blum.
Blessing then repeatedly lied to investigators, telling them that the shotgun had been
purchased by Ferryman at a garage sale. She did so in an attempt to prevent authorities
from discovering that her father had actually purchased the shotgun for Ferryman.
{¶ 4} Blessing was charged with two counts of obstructing justice and one count
of complicity to having weapons while under disability. On May 2, 2011, Blessing filed a
request for discovery. A week later, the trial court scheduled the pre-trial conference for
June 1, 2011, and the trial for June 27, 2011.
[Cite as State v. Blessing, 2013-Ohio-392.]
{¶ 5} On May 18, 2011, Blessing moved for a continuance of both the pre-trial
and trial dates. Her counsel indicated that he had previously-scheduled hearings in
domestic relations court and probate court in other counties at those times. The trial court
denied the motion.
{¶ 6} On June 1, Blessing filed an amended motion for a continuance of the trial.
Counsel indicated that he was provided discovery by the State on May 23; the discovery
consisted of “approximately seven hundred printed pages of documents and additionally
what has been represented to be many thousands of pages of documents contained on 10
CD-R discs.” Counsel stated that it would take several weeks to review that volume of
discovery and that significant time would be required to conduct an appropriate investigation
in the case and to prepare any necessary pre-trial motions. Counsel further indicated that he
was responsible for more than 40 active cases and that “it is a virtual impossibility that the
undersigned can be prepared for trial as currently scheduled.”
{¶ 7} The State filed a response to Blessing’s motion, indicating that it had no
objection to continuing the trial date. The State noted that it had provided the entire file of
the shooting to defense counsel, which was “an extremely large file.” It further stated that
Blessing had posted bail and was not incarcerated for purposes of counting speedy trial time.
{¶ 8} The trial court summarily denied Blessing’s amended motion for a
continuance.
{¶ 9} On June 27, 2011, the scheduled trial date, Blessing entered a guilty plea to
one count of obstructing justice and one count of complicity to having weapons while under
disability. In exchange for the plea, the State agreed (1) to dismiss the second charge of
obstructing justice, (2) that any prison sentence would run concurrently, and (3) that
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Blessing’s bond would remain in effect until sentencing. After a Crim.R. 11 hearing, the
court accepted Blessing’s guilty plea and ordered a pre-sentence investigation.
{¶ 10} Blessing was sentenced on July 18, 2011. After hearing the arguments of
defense counsel and the prosecutor, the court imposed a maximum five-year sentence for
complicity to having weapons while under disability and a maximum one-year sentence for
obstructing justice, to run concurrently. The court also ordered Blessing to pay court costs.
{¶ 11} Blessing appeals from her conviction, raising five assignments of error.
II.
{¶ 12} Blessing’s first assignment of error states:
APPELLANT’S GUILTY PLEA WAS NOT MADE KNOWINGLY,
VOLUNTARILY, AND INTELLIGENTLY, DUE TO VIOLATIONS OF
HER DUE PROCESS RIGHTS UNDER THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS.
{¶ 13} In her first assignment of error, Blessing claims that her guilty plea was not
entered knowingly, intelligently, and voluntarily, because it was the product of the trial
court’s failure to grant a reasonable continuance and of trial counsel’s ineffective assistance.
{¶ 14} A plea of guilty is a complete admission of guilt. E.g., State v. Wheeler,
2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3; State v. Barrett, 2d Dist.
Montgomery No. 24150, 2011-Ohio-2303, ¶ 3; Crim.R. 11(B)(1). Consequently, a guilty
plea waives all appealable errors that may have occurred in the trial court, unless such errors
precluded the defendant from knowingly, intelligently, and voluntarily entering a guilty plea.
See, e.g., State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the
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syllabus; Wheeler at ¶ 3; State v. Smith, 2d Dist. Clark No. 08 CA 60, 2009-Ohio-5048, ¶ 13.
{¶ 15} In determining whether to accept a defendant’s guilty plea, the trial court
must determine whether the defendant knowingly, intelligently, and voluntarily entered the
plea. State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), syllabus. “If a
defendant’s guilty plea is not knowing and voluntary, it has been obtained in violation of due
process and is void.” State v. Brown, 2d Dist. Montgomery Nos. 24520 & 24705,
2012-Ohio-199, ¶ 13, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23
L.Ed.2d 274 (1969). In order for a plea to be given knowingly and voluntarily, the trial
court must follow the mandates of Crim.R. 11(C). Brown at ¶ 13.
{¶ 16} Crim.R. 11(C)(2) requires the court to (a) determine that the defendant is
making the plea voluntarily, with an understanding of the nature of the charges and the
maximum penalty, and, if applicable, that the defendant is not eligible for probation or for
the imposition of community control sanctions; (b) inform the defendant of and determine
that the defendant understands the effect of the plea of guilty [or no contest] and that the
court, upon acceptance of the plea, may proceed with judgment and sentencing; and
(c) inform the defendant and determine that she understands that, by entering the plea, the
defendant is waiving the rights to a jury trial, to confront witnesses against her, to have
compulsory process for obtaining witnesses, and to require the State to prove her guilt
beyond a reasonable doubt at a trial at which she cannot be compelled to testify against
herself. State v. Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3. See also
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 27.
{¶ 17} The Supreme Court of Ohio has urged trial courts to literally comply with
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Crim.R. 11. Clark at ¶ 29. However, because Crim.R. 1 1(C)(2)(a) and (b) involve
non-constitutional rights, the trial court need only substantially comply with those
requirements. E.g., State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
“Substantial compliance means that under the totality of the circumstances the defendant
subjectively understands the implications of his plea and the rights [she] is waiving.” Id.In contrast, the trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the
waiver of federal constitutional rights. Clark at ¶ 31.
{¶ 18} Furthermore, when non-constitutional rights are at issue, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently, and
voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea
would otherwise not have been entered. Id. at ¶ 15. Where the trial court completely fails
to comply with Crim.R. 11(C)(2)(a) or (b), however, “an analysis of prejudice” is not
implicated. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
{¶ 19} Blessing does not claim that the trial court failed to comply with Crim.R. 11,
and the record reflects that the trial court followed the mandates of that rule. Of particular
relevance here, the trial court asked Blessing if she had reviewed the written plea document
with her attorney, if she understood it, and whether she was pleading guilty voluntarily.
Blessing responded affirmative to each of these questions. Blessing further told the court
that, other than the plea agreement described by the State, there had not been any other
promises made to her to get her to enter the plea and no one had threatened her to get her to
plead guilty. After being informed of her constitutional rights, Blessing indicated that she
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wanted to waive those rights and plead guilty to counts two and three, the complicity and
obstructing justice charges. On its face, Blessing’s plea hearing reflects that Blessing’s plea
was given knowingly, intelligently, and voluntarily.
{¶ 20} Blessing argues that due process rights were violated by the trial court’s
failure to grant her a continuance and by her counsel’s alleged ineffective performance that
resulted therefrom. Blessing states that she pled guilty because she was “backed into a
corner.”
{¶ 21} The grant or denial of a continuance is a matter entrusted to the broad, sound
discretion of the trial judge, which will not be reversed absent an abuse of discretion. State
v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). An abuse of discretion requires a
finding that the decision was unreasonable, arbitrary, or unconscionable. State v. Anderson,
2d Dist. Montgomery No. 24657, 2012-Ohio-957, ¶ 6. Although we question the trial
court’s denial of Blessing’s amended motion for a continuance, given the “extremely large”
amount of discovery and the State’s agreement to the continuance, Blessing’s guilty plea
precludes her from challenging the trial court’s denial of that motion.
{¶ 22} Moreover, we cannot conclude, based on the record before us, that
Blessing’s counsel rendered ineffective assistance in advising Blessing to enter a guilty plea.
Although Blessing’s counsel indicated in his amended motion for a continuance that it
would be a “virtual impossibility” to review all of the State’s discovery prior to trial, the
record does not reflect how much discovery counsel was actually able to review by June 27,
whether counsel believed he was adequately prepared to proceed with the trial, and whether
Blessing’s decision to enter a plea was influenced by the denial of the amended motion for a
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continuance. Without support in the record that, on June 27, Blessing’s counsel could not
have effectively represented Blessing at trial and that Blessing’s plea was the result of
counsel’s lack of preparedness, we cannot find that Blessing’s plea was involuntarily given
or that counsel was ineffective.
{¶ 23} Blessing’s first assignment of error is overruled.
III.
{¶ 24} Blessing’s second assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
APPELLANT TO A MAXIMUM PRISON SENTENCE.
{¶ 25} In her second assignment of error, Blessing claims that the trial court’s
imposition of maximum sentences was an abuse of discretion. She further argues that the
trial court failed to consider the seriousness and recidivism factors under R.C. 2929.12.
{¶ 26} We review a felony sentence using a two-step procedure. State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the
sentencing court's compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law.’” State v.
Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.), quoting
Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial court’s decision
be ‘reviewed under an abuse-of-discretion standard.’” Id.{¶ 27} 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. See State v. Foster, 109
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Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus.
However, the trial court must comply with all applicable rules and statutes, including R.C.
2929.11 and R.C. 2929.12. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, ¶ 37. The trial court is required to merge allied offenses of similar import before
imposing sentence under R.C. 2941.25(A), State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, 922 N.E.2d 923, and to properly impose any other penalties required by law.
E.g., State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509 (driver’s license
suspension); State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332(post-release control).
{¶ 28} Blessing committed obstructing justice, a fifth-degree felony, and conspiracy
to having weapons while under disability, a third-degree felony. The trial court’s sentences
of one year and five years, respectively, were within the sentencing ranges for those offenses
at the time she was sentenced.1
{¶ 29} Blessing argues that the trial court did not state at sentencing that it had
considered the seriousness and recidivism factors of R.C. 2929.12. (The court did indicate
that it had considered the purposes and principles set forth in R.C. 2929.11.) The trial
court did not have to make any specific findings to demonstrate its consideration of R.C.
2929.11 and R.C. 2929.12. Foster at ¶ 42; State v. Wagner, 2d Dist. Clark No. 2011 CA
1
Under 2011 Am.Sub.H.B. No. 86, the legislature created a two-tiered sentencing structure for third-degree felonies.
Had Blessing been sentenced under H.B. 86, the maximum possible sentence for complicity to having weapons while under
disability would have been 36 months. Because Blessing was sentenced prior to September 30, 2011, the effective date of H.B. 86,
that amendment to R.C. 2929.14 does not apply to her. We also have no way of knowing when any sentencing would have taken
place had the trial been continued and had the defendant been convicted.
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27, 2012-Ohio-2791, ¶ 10. Where the record is silent, a presumption exists that the trial
court has considered the factors contained in R.C. 2929.12. State v. Adams, 37 Ohio St.3d
295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus. Further, where the
defendant’s sentence is within the statutory limits, an appellate court should accord the trial
court the presumption that it considered the statutory mitigating factors. State v. Cemino,
2d Dist. Montgomery No. 24442, 2011-Ohio-5690, ¶ 6. The appellant has an affirmative
duty to show otherwise. Id.{¶ 30} The trial court did not expressly state at sentencing that it had considered the
seriousness and recidivism factors. However, the court told the parties that it had
considered the presentence investigation report, which included information relevant to
those factors. The judgment entry further states that the court balanced the seriousness and
recidivism factors of R.C. 2929.12. Based on the record, we find no basis to conclude that
the trial court failed to consider the statutory factors contained in R.C. 2929.12. Blessing’s
sentences were not contrary law.
{¶ 31} Blessing claims that the sentences were an abuse of discretion because she
was a first-time offender, she expressed remorse, and it was unlikely that she would commit
further offenses. In the context of felony sentencing, an abuse of discretion may be found if
the sentencing court unreasonably or arbitrarily weighs the statutory factors. State v. Bailey,
2d Dist. Clark No. 2011CA40, 2012-Ohio-1569, ¶ 15, citing State v. Saunders, 2d Dist.
Greene No. 2009 CA 82, 2011-Ohio-391, ¶ 15.
{¶ 32} Blessing was 56 years old at the time of the offenses; she had no prior
convictions. Her counsel argued at sentencing that she was a devout Christian, that she felt
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“genuine and sincere remorse,” and that there was little likelihood of her repeating the
offense. (Blessing’s long-time boyfriend, Ferryman, was killed in the encounter with police
officers.) Counsel stated that Blessing “did abide by the presence of hunting weapons in the
home,” but she “never in her wildest imagination ever thought that Michael Ferryman would
do what he did with those weapons.”
{¶ 33} The prosecutor painted a different picture of Blessing. He emphasized that
Blessing was aware that Ferryman engaged in similar behavior in the past. In 2001,
Blessing was present in the same trailer when Ferryman shot at law enforcement officers in
Morgan County, Ohio. The prosecutor stated that Blessing faced charges from that
incident, but the charges were dismissed due to a speedy trial violation. The prosecutor
further argued that Blessing knew that Ferryman was a mentally ill person subject to
hospitalization and that Ferryman had received a conditional release, subject to supervision.
Blessing also knew, in December 2010, that Ferryman was no longer taking his medication
and his mental health condition was “slipping.” The prosecutor told the trial court that
Blessing then repeatedly lied regarding how Ferryman had obtained the gun that he used to
kill Deputy Hopper. The prosecutor pointed out “mistruths” in Blessing’s statement to the
probation office, including that she had seen no change in Ferryman’s behavior before the
shooting, that Ferryman was a sweet and loving man who was never mean and hateful, and
that she “can’t fathom what he did.”
{¶ 34} The trial court did not express its reasons for imposing maximum sentences.
Nevertheless, upon review of the record, we cannot conclude that the trial court abused its
discretion when it imposed the maximum sentences for obstructing justice and complicity to
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having weapons while under disability.
{¶ 35} Blessing’s second assignment of error is overruled.
IV.
{¶ 36} Blessing’s third assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO NOTIFY APPELLANT OF
POSSIBLE POST-RELEASE CONTROL AND THE POTENTIAL
PUNISHMENTS FOR ITS VIOLATION.
{¶ 37} Blessing claims that the trial court failed to inform her at sentencing that she
was subject to post-release control and to potential punishments for violating post-release
control.
{¶ 38} R.C. 2967.28 provides that felony prison sentences are subject to
post-release control, either mandatory or discretionary, based on the nature and degree of the
offense. R.C. 2967.28(B) and (C). Based on her offenses, Blessing was subject to a
discretionary three years of post-release control.
{¶ 39} Where post-release control may be required under R.C. 2967.28, the trial
court must notify the defendant at sentencing of the post-release control requirement and the
consequences if the defendant violates post-release control. R.C. 2929.19; State v. Qualls,
131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18. “[A] judge must conform to
the General Assembly’s mandate in imposing post-release control sanctions as part of a
criminal sentence.” Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 23.
{¶ 40} The trial court informed Blessing at her plea hearing that, if she were
sentenced to prison, she could be placed on post-release control for three years, at the
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discretion of the parole board. The court further told her of the consequences if she violated
post-release control. Consistent with that notification, the court’s judgment entry states:
“The Court notified the defendant at the time of her guilty plea that post-release control
(PRC) is optional in this case for up to three years. The defendant is Ordered to serve as
part of this sentence any PRC imposed upon her by the Ohio Parole Authority.” The
judgment entry also includes a paragraph detailing the possible sanctions if Blessing violated
post-release control. However, the trial court did not inform Blessing of her possible
post-release control sanction or the consequences of violating any post-release control at her
sentencing.
{¶ 41} The State concedes that the trial court erred in failing to properly notify
Blessing regarding post-release control at sentencing. We agree. Although the trial court
discussed post-release control during the plea hearing, it failed to address post-release
control during the sentencing hearing as required by R.C. 2929.19(B). State v. Neff, 2d
Dist. Clark No. 2012-CA-31, 2012-Ohio-6047, ¶ 6. The portion of the judgment entry
imposing post-release control must be reversed, and the case must be remanded for the
proper imposition of post-release control.
{¶ 42} The third assignment of error is sustained.
V.
{¶ 43} Blessings fourth assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO GIVE ITS REASONS FOR
DISAPPROVING SHOCK INCARCERATION AND INTENSIVE
PROGRAM PRISON AT SENTENCING.
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{¶ 44} In her fourth assignment of error, Blessing claims that the trial court erred in
failing to state its reasons for disapproving shock incarceration and intensive program
prison. It appears that Blessing is statutorily eligible for shock incarceration and intensive
program prison, and the State has not argued otherwise. See R.C. 5120.032(B)(2) (defining
eligible offenders for intensive program prison); R.C. 5120.031 (defining eligible offenders
for shock incarceration).
{¶ 45} The trial court did not mention shock incarceration or intensive program
prison at sentencing, and it made no findings upon imposing Blessing’s sentence. However,
in a footnote in the judgment entry, the trial court 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.”
{¶ 46} R.C. 2929.19(D) provides:
The sentencing court * * * 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, 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.
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{¶ 47} “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.
{¶ 48} Because the trial court failed to provide any reasons for its disapproval of
shock incarceration or the intensive program prison, the trial court’s disapproval of shock
incarceration and intensive program prison must be reversed, and Blessing must be
resentenced on this issue.
{¶ 49} Blessing’s assignment of error is sustained.
VI.
{¶ 50} Blessing’s fifth assignment of error states:
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
IN ASSESSING THE COSTS OF PROSECUTION AND ANY FEES
PERMITTED UNDER LAW AGAINST APPELLANT, BECAUSE IT DID
NOT IMPOSE THOSE COSTS IN OPEN COURT AND FAILED TO
NOTIFY APPELLANT AS REQUIRED UNDER R.C. 2947.23(A)(1)(a)
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AND (b).
{¶ 51} Blessing’s fifth assignment of error claims that the trial court failed to
impose costs in open court and failed to provide the notices required by R.C.
2947.23(A)(1)(a) and (b).
{¶ 52} Under R.C. 2947.23, a trial court is required to impose “the costs of
prosecution” against all convicted defendants, even those who are indigent. See State v.
White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. The Ohio Supreme
Court made clear that the trial court must orally notify a defendant at sentencing that the
court is imposing court costs. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926
N.E.2d 278, ¶ 22, citing Crim.R. 43(A) (a defendant must be present at every stage of his or
her trial, including sentencing). A trial court may waive the payment of costs, but an
indigent defendant must move for such waiver at sentencing. State v. Joseph, 125 Ohio
St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11-12.
{¶ 53} Court costs, which are governed by R.C. 2947.23, are not financial
sanctions. State v. Smith, 3d Dist. Allen No. 1-07-32, 2007-Ohio-6552, ¶ 11.
Consequently, R.C. 2929.19 is inapplicable to court costs, and the trial court need not
consider a defendant’s ability to pay under R.C. 2929.19 prior to imposing such costs. E.g,
id.; Columbus v. Kiner, 10th Dist. Franklin No. 11AP-543, 2011-Ohio-6462. “[A]lthough
costs in criminal cases are assessed at sentencing and are 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.
{¶ 54} A trial court is required to notify the defendant of the consequences for
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failing to pay court costs. R.C. 2947.23(A)(1). Specifically, the court must inform the
defendant:
(a) If the defendant fails to pay that judgment [for costs] or fails to
timely make payments towards that judgment under a payment schedule
approved by the court, the court may order the defendant to perform
community service in an amount of not more than forty hours per month until
the judgment is paid or until the court is satisfied that the defendant is in
compliance with the approved payment schedule [and]
(b) If the court orders the defendant to perform the community
service, the defendant will receive credit upon the judgment at the specified
hourly credit rate per hour of community service performed, and each hour of
community service performed will reduce the judgment by that amount.
{¶ 55} In this case, the trial court briefly mentioned costs at the conclusion of the
sentencing hearing. After informing Blessing of the two sentences it was imposing, the
court stated: “Pursuant to the plea agreement, those sentences will run concurrently for a
total sentence of five years in the Ohio State Penitentiary and court costs. That will be all
for today.” The court’s subsequent judgment entry read: “Defendant is ORDERED to pay
all costs of prosecution, Court appointed counsel costs, and any fees permitted pursuant to
law.” Although the trial court’s reference to court costs at sentencing was cursory, we find
it was sufficient to notify Blessing that she would be required to pay such costs and to
provide her an opportunity to object.
{¶ 56} We agree with Blessing, however, that the trial court erred in failing to
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notify her that she could be required to perform community service if she failed to pay those
costs. The State also concedes that the trial court erred in its “imposition of fines and costs.”
{¶ 57} In prior cases addressing the notification issue, we have remanded to the trial
court for the court to modify its judgment entry to reflect that the defendant could not be
required to perform community service if the defendant failed to pay court costs. State v.
Henderson, 2d Dist. Montgomery No. 24701, 2012-Ohio-3283; State v. Lux, 2d Dist. Miami
No. 2010 CA 30, 2012-Ohio-112. In those cases, however, the defendant either could not
be resentenced or resentencing for notification regarding community service would be
superfluous. Lux at ¶ 59 (defendant had served sentence and could not be resentenced);
Henderson at ¶ (remanding for modification of judgment entry to eliminate the possibility of
community service where the State agreed to that remedy for defendant, who was serving
sentence of life in prison without the possibility of parole plus 15 years). The proper
remedy in this case is to remand for resentencing regarding costs so that the court can
provide the notification required by R.C. 2947.23(A)(1)(a) and (b). See, e..g., State v.
Huber, 8th Dist. Cuyahoga No. 98206, 2012-Ohio-6139, ¶ 33; State v. Dillard, 1st Dist.
Hamilton No. C-120058, 2012-Ohio-4018, ¶ 9; State v. Debruce, 9th Dist. Summit No.
25574, 2012-Ohio-454, ¶ 38; State v. Taylor, 11th Dist. Portage No. 2011-P-0090,
2012-Ohio-3890, ¶ 43.
{¶ 58} Blessing’s assignment of error is sustained in part and overruled in part.
VII.
{¶ 59} In light of our disposition of Blessing’s assignments of error, the trial court’s
judgment will be affirmed in part, reversed in part, and remanded for further proceedings.
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Specifically, the portions of the judgment entry that disapprove of shock incarceration and an
intensive program prison and that impose post-release control and costs are reversed. The
matter is remanded to the trial court for the proper imposition of post-release control, to state
its reasons for disapproving shock incarceration and intensive program prison, and for
proper notification pursuant to R.C. 2947.23(A)(1)(a) and (b) regarding the costs associated
with the case. In all other respects, the trial court’s judgment will be affirmed.
..........
FAIN, P.J. and DONOVAN, J., concur.
Copies mailed to:
Lisa M. Fannin
Mark A. Deters
Hon. Douglas M. Rastatter