State v. Scott , 2022 Ohio 745 ( 2022 )

[Cite as State v. Scott, 2022-Ohio-745.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-21-41
PLAINTIFF-APPELLEE,
v.
KENNETH J. SCOTT, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 1-21-42
PLAINTIFF-APPELLEE,
v.
KENNETH J. SCOTT, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 1-21-43
PLAINTIFF-APPELLEE,
v.
KENNETH J. SCOTT, OPINION
DEFENDANT-APPELLANT.
Case No. 1-21-41, 1-21-42, 1-21-43
Appeals from Lima Municipal Court
Trial Court Nos. 20CRB02349, 21CRB382 and 20CRB02361
Judgments Affirmed
Date of Decision: March 14, 2022
APPEARANCES:
Thomas J. Lucente Jr. for Appellant
Joseph C. Snyder for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-appellant Kenneth J. Scott (“Scott”) brings these appeals
from the judgments of the Lima Municipal Court finding him guilty of one charge
of menacing, one charge of telecommunications harassment and one charge of
violating a protection order and sentencing him on those convictions. Scott alleges
on appeal that the convictions were against the manifest weight of the evidence, that
the trial court erred in sentencing him to maximum, consecutive sentences, and that
the trial court erred in imposing financial sanctions without considering Scott’s
ability to pay. For the reasons set forth below, the judgments are affirmed.
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Case No. 1-21-41, 1-21-42, 1-21-43
Case Number 20 CRB 02349A & B1
{¶2} On December 4, 2020, Benny Hager Jr. (“Hager”) received a phone call
in Lima, Ohio from Scott. ADoc. 3. Scott was in the Allen County Jail at that time
on unrelated felony gun charges and wanted Hager to bring him $105,000 for bail.
ADoc. 3. When Hager told Scott he did not have that kind of money, Scott
threatened to kill Hager and his family. ADoc. 3. Hager then called law
enforcement. ADoc. 3. Complaints were filed on December 11, 2020 charging
Scott with 1) telecommunications harassment in violation of R.C. 2917.121(B)(1),
a misdemeanor of the first degree (case number 20 CRB 02349A) and 2) menacing
in violation of R.C. 2903.22(A), a misdemeanor of the fourth degree (case number
20 CRB 02349B). ADoc. 4 and 6. Scott made an initial appearance on December
18, 2020 and entered pleas of not guilty. ADoc. 8. The trial court released Scott on
his own recognizance, but ordered him to have no contact with Hager and to stay
away from his residence. ADoc. 9. A change of plea hearing was held on May 27,
2021 and, pursuant to a plea agreement, Scott entered a no contest plea to the
menacing charge. ADoc. 15. The telecommunication harassment charge was
dismissed as agreed by the parties. ADoc. 14. The trial court accepted the plea of
no contest and subsequently found Scott guilty of menacing. ADoc. 15. On
Augues17, 2021, the trial court sentenced Scott to 30 days in jail to be served
1
The docket in this case will be referred to as “ADoc.”
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Case No. 1-21-41, 1-21-42, 1-21-43
concurrently to the sentence in case number 21 CRB 00382 and a fine of $150 along
with court costs. ADoc. 16. Scott filed a timely appeal from this judgment. ADoc.
20.
Casen Number 20 CRB 023612
{¶3} On December 15, 2020, Scott called Ariel Howell (“Howell”) on the
phone and contacted her on Facebook while she was at an address in Lima, Ohio.
Doc. 1 Scott wanted Howell to accuse Hager of sexual harassment, which had not
occurred, and threatened her when she refused. BDoc. 1. A complaint was filed
charging Scott with telecommunications harassment in violation of R.C.
2917.21(B)(1), a misdemeanor of the first degree (case number 20 CRB 02361).
BDoc. 2. Scott appeared before the trial court on December 21, 2020, and entered
a plea of not guilty. BDoc. 4. On May 27, 2021, Scott withdrew his not guilty plea
and entered a plea of no contest. BDoc. 10. The trial court subsequently found
Scott guilty of telecommunication harassment. BDoc. 10. On August 17, 2021, the
trial court sentenced Scott to 120 days in jail with 60 days suspended, a fine of $150,
and court costs. BDoc. 13. The trial court ordered that the jail sentence be served
consecutive to that imposed in case number 20 CRB 02349. BDoc. 13. Scott filed
a timely appeal from this judgment. BDoc. 15.
2
The docket in this case will be identified as “BDoc.”
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Case No. 1-21-41, 1-21-42, 1-21-43
Case Number 21 CRB 003823
{¶4} On March 6, 2021 in Lima, Ohio, Scott was observed within 500 yards
of Hager’s home and posting threats to Hager on Facebook after the trial court had
ordered that Scott have no contact with Hager and not be near Hager’s home. CDoc.
1. A complaint was filed charging Scott with violation of a protections order in
violation of R.C. 2919.27(A)(2), a misdemeanor of the first degree (case number 21
CRB 00382). CDoc. 2. Scott appeared before the trial court on March 23, 2021,
and entered a plea of not guilty. CDoc. 5. On August 17, 2021, Scott withdrew his
not guilty plea and entered a plea of no contest. CDoc. 13. The trial court
subsequently found Scott guilty of violation of a protection order. CDoc. 13. The
trial court immediately sentenced Scott to 180 days in jail, a fine of $150, and court
costs. CDoc. 13. The trial court ordered that the jail sentence be served concurrent
to that imposed in case number 20 CRB 02349. CDoc. 13. Scott filed a timely
appeal from this judgment. CDoc. 16.
{¶5} On appeal Scott raises three assignments of error.
First Assignment of Error
The trial court abused its discretion when it sentenced [Scott] to
maximum jail terms and ran the terms consecutive to each other.
Second Assignment of Error
The trial court erred when it imposed a financial sanction upon
an indigent defendant without determining the defendant’s
ability to pay and to consider community service instead.
3
The docket in this case will be identified as “CDoc.”
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Case No. 1-21-41, 1-21-42, 1-21-43
Third Assignment of Error
The trial court erred when it found defendant guilty against the
manifest weight of the evidence.
{¶6} In the interest of clarity, we will address the assignments of error out of
order.
Manifest Weight of the Evidence
{¶7} In the first assignment of error, Scott claims that his convictions were
against the manifest weight of the evidence. When reviewing a judgment to
determine if it is against the manifest weight of the evidence, an appellate court
“review[s] the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts
in the evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v.
Mendoza, 137 Ohio App.3d 336, 738 N.E.2d 822 (3d Dist. 2000). See, also, State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new trial should
be granted only in the exceptional case in which the evidence weighs heavily against
conviction. Thompkins at 387, 678 N.E.2d 541. Although the appellate court acts
as a “thirteenth juror,” due deference to the findings made by the fact-finder must
still be given. State v. Moorer, 3d Dist. Seneca No. 13–12–22, 2013-Ohio-650, ¶
29.
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Case No. 1-21-41, 1-21-42, 1-21-43
{¶8} Scott claims on appeal that the convictions were against the manifest
weight of the evidence because in cases numbered 20 CRB 02349 and 20 CRB
02361 the prosecutor did not state that the offense occurred in Allen County, Ohio,
thus failing to establish jurisdiction. A review of the record shows that Scott entered
pleas of no contest to these charges. A plea of no contest is an admission to the
accuracy of the facts alleged in the complaints. Crim.R. 11(B)(2). The affidavits
for the statements of facts filed with the complaints both stated that the offenses
charged occurred at addresses in Lima, Ohio. Scott admitted to the accuracy of
those statements when he entered pleas of no contest.
{¶9} Scott also claims that the prosecutor failed to show in case number 21
CRB 00382 that there was a protection order in place and that Scott recklessly
violated it. As discussed above, Scott admitted to the facts alleged in the complaint
by entering a plea of no contest. Specifically, the complaint alleged as follows.
[Scott] did recklessly violate the terms of a protection order issued
or consent agreement approved pursuant to section 2151.34,
2903.213, or 2903.14 of the Revised Code, to-wit: Case No:
CP2020-0128 issued in Allen County Common Pleas Court Civil
Division[.]
CDoc. 2. The affidavit for statement of facts filed with the complaint indicates that
the protection order was issued on January 13, 2021, and that Scott violated it by 1)
having contact with Hager, 2) coming within 500 yards of the residence and 3)
posting threats against Hager on Facebook. CDoc. 1.
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Case No. 1-21-41, 1-21-42, 1-21-43
{¶10} Having reviewed the records in the cases, there was evidence to
support the findings of guilt by the trial court. The evidence did not weigh heavily
against conviction. Thus, the judgments were not against the manifest weight of the
evidence and the third assignment of error is overruled.
Maximum Consecutive Sentences
{¶11} In the first assignment of error, Scott claims that the trial court erred
by imposing maximum consecutive sentences. Initially, this court notes that the
only sentence imposed to be served consecutive to another was that in case number
20 CRB 2361, which was ordered to be consecutive to the sentence in 20 CRB 2349.
The sentences in 20 CRB 2349 and 21 CRB 00382 were ordered concurrent.
Additionally, the sentence in CRB 2361 was not a maximum sentence as it was a
first degree misdemeanor and only a sentence of 120 days was imposed when the
maximum was 180 days. Altogether, Scott served 180 days and was set for release
on February 12, 2022. See ADoc. 16-17, BDoc. 13-14, and CDoc. 13-14. If the
trial court had imposed maximum consecutive sentences, Scott would have been
ordered to serve 390 days in jail.
{¶12} Additionally, the sentences in 20 CRB 2349 and 20 CRB 2361 (90
days total) were served concurrently to the sentence in 21 CRB 00382 (180 days
total). This sentence ended on February 12, 2022. Thus the imposed sentences have
been fully served. When a sentence has been completed, a challenge to the length
of the sentence is moot because there is no relief to be given. See State v. Murphy,
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Case No. 1-21-41, 1-21-42, 1-21-43
12th Dist. Clinton No. CA2019-11-018, 2021-Ohio-1452; State v. Biscardi, 11th
Dist. Portage Nos. 2019-P-0003 and 2019-P-0004, 2019-Ohio 4653; State v.
Oglesby, 1st Dist. Hamilton Nos. C-180177 and C-180178, 2019-Ohio-1456; State
v. Jones, 8th Dist. Cuyahoga No. 107277, 2019-Ohio-1126; and State v. McAbee, 5th
Dist. Ashland No. 16 COA 016, 2016-Ohio-8234. A review of the records shows
that no stay was requested. The docket sheets in each case show that the
commitment writs were returned. From a review of the record, it appears that these
sentences are completed. Thus there is no relief we can provide for Scott and the
first assignment of error is overruled as moot.
Ability to Pay
{¶13} Scott claims in the second assignment of error that the trial court erred
by imposing financial sanctions without first considering his ability to pay since he
was being represented by the Public Defender’s Office.
(A) In addition to imposing court costs pursuant to section
2947.23 of the Revised Code, the court imposing a sentence upon
an offender for a misdemeanor, including a minor misdemeanor,
may sentence the offender to any financial sanction or
combination of financial sanctions authorized under this section.
If the court in its discretion imposes one or more financial
sanctions, the financial sanctions that may be imposed pursuant
to this section include, but are not limited to, the following:
(2) A fine of the type described in divisions (A)(2)(a) and (b) of
this section payable to the appropriate entity as required by law[.]
***
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Case No. 1-21-41, 1-21-42, 1-21-43
(B) If the court determines a hearing is necessary, the court may
hold a hearing to determine whether the offender is able to pay
the financial sanction imposed pursuant to this section or court
costs or is likely in the future to be able to pay the sanction or
costs.
R.C. 2929.28. For the two first degree misdemeanors, the maximum fine would be
$1,000 each. R.C. 2929.28(A)(2)(a)(i). The maximum fine for the fourth degree
misdemeanor is $250. R.C. 2929.28(A)(2)(a)(iv). Each sentence included a fine of
$150, which was below the maximum allowed fine. The statute provides that the
trial court has the discretion as to whether to hold a hearing regarding the ability of
a defendant to pay. A review of the record in this case shows that at no point did
Scott raise the issue of his alleged inability to pay the fines, thus making the standard
of review one of plain error. State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-
Ohio-5048, ¶ 26, 161 N.E.3d 112. In addition, no affidavit of indigency was ever
filed with the trial court. Although no hearing was held, it is not necessary that one
be held in order for the issue of ability to pay be considered. State v. Hall, 2d Dist.
Montgomery No. 27695, 2018-Ohio-2321, ¶ 54, 114 N.E.3d 730. At the sentencing
hearing, Scott indicated that he was employed. Tr. 13. The trial court can consider
the issue based upon a pre-sentence investigation report (“PSI”) that contains
pertinent information. Id. The PSI in this case shows that Scott was only 30 years
old and had been working before he was arrested on other charges. The statement
by Scott at the sentencing hearing and the PSI showed that Scott was employable
and most likely would have the future ability to pay the total fines of $450. No
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Case No. 1-21-41, 1-21-42, 1-21-43
argument was made to the contrary. Based upon the evidence before it, the trial
court did not abuse its discretion in imposing fines as part of the sentences. The
second assignment of error is overruled.
{¶14} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgments of the Lima Municipal Court are affirmed.
Judgments Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/hls
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