State v. Jones , 2017 Ohio 413 ( 2017 )

[Cite as State v. Jones, 2017-Ohio-413.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1014
Appellee Trial Court No. CR0201501980
v.
Antoine Jones DECISION AND JUDGMENT
Appellant Decided: February 3, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Matthew D. Simko, Assistant Prosecuting Attorney, for appellee.
Emil G. Gravelle, III, for appellant.
*****
OSOWIK, J.
I. Introduction
{¶ 1} The defendant-appellant, Antoine Jones, appeals his 180 day jail sentence
following his conviction for criminal damaging. Appellant asserts that his sentence
should be vacated for multiple reasons. As set forth below, we find that appellant’s
assignments of error are not well-taken, except as they relate to the issue of costs. We
remand this case to the trial court for the limited purpose of resentencing appellant on
that issue. We affirm the sentence and judgment of the trial court in all other respects.
II. Statement of Facts and Procedural History
{¶ 2} On June 12, 2015, appellant was arrested and charged with two counts of
arson. The record indicates that appellant lit some papers while in his apartment,
including his eviction notice, put the papers in the oven, and then left the premises. The
fire extinguished itself but caused $1000 worth of smoke damage to his unit.
{¶ 3} A Lucas County Grand Jury indicted appellant on two counts of aggravated
arson, R.C. 2909.02(A)(1) and (A)(2), both felonies in the first degree. Appellant pled
not guilty by reason of insanity and was referred for a competency exam. After appellant
was found competent to stand trial, he changed his plea to not guilty.
{¶ 4} Pursuant to a plea agreement, appellant pled guilty to one count of criminal
damaging, R.C. 2909.06(A)(2) and (B), a misdemeanor in the first degree. In exchange,
the state dismissed the original charges.
{¶ 5} During the change of plea hearing, the trial court reviewed appellant’s
constitutional rights with him. The court found that appellant had made a knowing,
intelligent and voluntary waiver of those rights. After finding appellant guilty, the trial
court notified appellant of his duty to register as an arson offender. Appellant verified
that he understood that obligation.
{¶ 6} On January 20, 2016, the trial court sentenced appellant to serve 180 days in
jail, with credit given for the 125 days he had already served. The court ordered him to
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reimburse the Toledo Fire Department in the amount of $221.26 and to pay the costs
associated with his prosecution and appointment of counsel. The judgment entry,
journalized on January 22, 2016, imposed additional costs. The trial court stayed the
sentence, pending appellant’s appeal.
{¶ 7} Through his appointed counsel, appellant asserts five assignments of error
for our review.
III. Appellant’s Assignments of Error
1. The trial court erred when it failed to consider the factors for
imposition of the maximum misdemeanor sentence as stated in R.C.
2929.22(C) and imposed the maximum sentence of one hundred-eighty
days for the misdemeanor of the first degree.
2. The trial court erred to the prejudice of Appellant in accepting a
guilty plea, which was not made knowingly, in violation of Appellant’s due
process rights under the Fifth and Fourteenth Amendments of the United
States Constitution, Article I, Section 16 of the Ohio Constitution; and Ohio
Criminal Rule 11.
3. The trial court erred to the prejudice of Appellant by sentencing
Appellant to a misdemeanor with the duty to register as an Arson Offender
because the lifetime arson registration cannot be completed within five
years.
3.
4. The trial court erred to the prejudice of Appellant when it
improperly ordered Appellant to reimburse and/or pay restitution to the
Toledo Fire Department and failed to comply with R.C. 2929.71.
5. The trial court erred to the prejudice of Appellant at sentencing
by imposing new costs and fees in its Sentencing Judgment Entry and failed
to consider Appellant’s present or future ability to pay.
IV. Standard of Review
{¶ 8} We examine misdemeanor sentences under an abuse of discretion standard
of review. State v. Cook, 6th Dist. Lucas No. L-15-1178, 2016-Ohio-2975, ¶ 18-19. An
abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or
unconscionable. AAAA Enterprises, Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 9} When a misdemeanor sentence is imposed within the statutory limits, a
reviewing court will presume the trial judge followed the statutes, unless there is
evidence to the contrary. Cook at ¶ 18, citing State v. Townsend, 6th Dist. Lucas No. L-
01-1441, 2002-Ohio-4077, ¶ 6.
{¶ 10} Appellant urges the court to apply a “clear and convincing” standard of
review, as set forth under R.C. 2953.08. That statute is applicable to felony, not
misdemeanor sentences. Appellant’s misdemeanor sentence is reviewed under an abuse
of discretion standard.
4.
IV. Law and Analysis
{¶ 11} In his first assignment of error, appellant argues that the court should
vacate his maximum jail sentence because he did not commit the worst form of the
offense and because the court failed to consider the sentencing factors set forth in R.C.
2929.22. Appellant complains that the trial court failed to consider how he responded to
prior sanctions and failed to show why the longest jail sentence was necessary to deter
him from committing future crime.
{¶ 12} When a trial court imposes a sentence pursuant to a misdemeanor
conviction, the trial court shall examine the “purposes and principles” of R.C. 2929.21
and “sentencing factors” under R.C. 2929.22. Before imposing a jail term, the court must
consider the appropriateness of imposing a community control sanction. R.C.
2929.22(C). Division (C) also states that a maximum jail term can be imposed “only
upon offenders who commit the worst forms of the offense or upon offenders whose
conduct and response to prior sanctions for prior offenses demonstrate that the imposition
of the longest jail term is necessary to deter the offender from committing a future
crime.” R.C. 2929.22(C).
{¶ 13} As noted by the state, other appellate districts, have ruled that the
sentencing court is not bound by R.C. 2929.22(C), to the extent the statute requires
judicial fact-finding and/or that only those offenders who have committed the worst
forms of the offense may be given the maximum sentence. Although a sentencing court
formerly was required to make specific factual findings prior to imposing a maximum
sentence, that requirement was eliminated after the Ohio Supreme Court's ruling in State
5.
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.1 Other courts have
specifically invalidated the requirement in R.C. 2929.22(C) as unconstitutional that the
trial judge make factual findings prior to imposing a maximum misdemeanor sentence.
State v. Nuby, 7th Dist. Mahoning No. 16MA0036, 2016-Ohio-8157, ¶ 8-9, citing State v.
Black, 1st Dist. Hamilton No. C-060861, 2007-Ohio-5871, ¶ 19-21 (Noting that the
judicial fact finding required by R.C. 2929.22(C) before imposing a maximum jail term is
unconstitutional and was “severed” from the statute.). See also State v. Simms, 10th
Dist. No. 05AP-806, 2006-Ohio-2960, ¶ 20.
{¶ 14} Here, the trial court’s 180 day sentence was within the statutory limits, as a
first degree misdemeanor. See R.C. 2929.21. Accordingly, we presume the sentence was
proper, absent evidence to the contrary. Appellant provides none. Notably, however, the
trial court examined appellant's criminal record and remarked that he “has not done well
on probation.” It commented that appellant’s probation had been revoked in prior cases
by courts in Lucas and Seneca County, Ohio. It specifically referenced appellant’s many
prior convictions, including those for aggravated burglary, robbery, aggravated
trafficking in drugs, and fleeing and eluding.
{¶ 15} We find that the trial court did not abuse its discretion in sentencing
appellant to jail for 180 days. Appellant’s first assignment of error is not well-taken.
1
Foster involved judicial fact finding before imposing consecutive sentences. It was
superceded by R.C. 2929.14(C)(4). See State v. Sergent, Ohio Sup. Ct. Slip Opinion No.
2016-Ohio-2696, ¶ 34-35.
6.
{¶ 16} In his second assignment of error, appellant argues that his guilty plea
should be vacated because it was not made knowingly, in violation of his due process
rights.
{¶ 17} At the plea hearing, the trial court notified appellant of his constitutional
rights, as set forth under Crim.R. 11(C). It then accepted appellant’s guilty plea. The
court then informed, and verified that appellant understood, his obligation to register as
an arson offender. During the court’s explanation of the arson registry, appellant
acknowledged that he had a written explanation in hand, that he understood the
requirement, and that he had discussed it in advance of the hearing with his attorney.
{¶ 18} Appellant argues that the court should have notified him about the registry
before accepting his plea. Appellant claims that it was necessary to do so because the
registry is punitive in nature. The state counters that the registry is not punitive and
therefore it need not have been explained to appellant before the court accepted
appellant’s guilty plea.
{¶ 19} R.C. 2909.15 requires “arson offenders” to register on a state registry. R.C.
2909.13(B)(3) defines an “arson offender” as “a person who * * * is charged with
committing * * * a violation of [R.C.] 2909.02 * * * and who pleads guilty to a violation
of any provision of Chapter 2909 of the Revised Code.” Here, appellant was originally
charged with R.C. 2909.02(A)(1) and (2), and he ultimately pled guilty to R.C.
2909.06(A)(2). Accordingly, appellant must register.
{¶ 20} R.C. 2909.14(A) provides that each arson offender “shall be provided
notice of [his] duty to register personally with the sheriff of the county in which the arson
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offender resides.” The statute distinguishes between arson offenders who have been
sentenced to a term of incarceration, and those who have not, for purposes of determining
when notice is required and by whom.
{¶ 21} Pursuant to R.C. 2909.14(A)(1), when the arson offender is sentenced to a
term of imprisonment, it falls upon the “official of a jail * * * to provide the notice to the
arson offender before the arson offender is released.” On the other hand, if the arson
offender is not sentenced to a term of incarceration, then “the judge shall provide the
notice to the arson offender at the time of the arson offender’s sentencing.” R.C.
2909.14(A)(2).
{¶ 22} Here, appellant was sentenced to a jail term. Therefore, the trial court was
not statutorily required to provide notice to appellant of his obligation to register. That
obligation will fall upon the official at the jail where appellant is confined.
{¶ 23} In a case similar to this one, the trial court read the notification provisions
to the arson offender during sentencing “for good measure,” despite imposition of a
prison sentence. Caldwell, 1st Dist. Hamilton No. C130812, 2014-Ohio-3566, at ¶ 38-39.
On appeal, the arson offender argued that the notification was “void.” The First
Appellate District found that the trial court’s notification did not relieve the prison
representatives from their duty to notify the arson offender, but that there was “no harm
in the court’s effort to explain the new statutes.” Id. at ¶ 39.
{¶ 24} Under the clear language of R.C. 2909.14(A)(1), the trial court was not
required to provide notice to appellant of his duty to register.
8.
{¶ 25} We also reject appellant’s argument that the arson registry is punitive in
nature.
{¶ 26} Of the three appellate districts that have addressed the issue, all concluded
that the Ohio Arson Registry is not punitive: See State v. Reed, 11th Dist. No. 2013-L-1,
2014-Ohio-5463, ¶ 85 (“The statute is merely remedial.”); Caldwell at ¶ 35 (“[T]he
statutory scheme is remedial in nature, and the General Assembly may retroactively
impose its provisions without running afoul of the Ohio Constitution.”) and State v.
Galloway, 5th Dist. Delaware No. 15CAA040029, 2015-Ohio-4949, ¶ 35 (“We are
persuaded that the arson offender registration requirements are remedial and not
punitive.”).
{¶ 27} We agree that the statutory obligation to register as an arson offender is not
punitive and accordingly does not impose constitutional burdens upon the state. Thus,
while the trial court was not required to notify appellant of his duty to register, that it did
so, following appellant’s guilty plea, raises no constitutional problems. Appellant’s
second assignment of error is not well-taken.
{¶ 28} In his third assignment of error, appellant argues that his sentence,
requiring him to register annually with the arson registry should be vacated because it
cannot be completed within five years. Appellant cites State v. Zucal, 82 Ohio St.3d 215,
217, 694 N.E.2d 1341 (1998), paragraph two of the syllabus, for the proposition that
“[a]ny sentence resulting from a conviction of a misdemeanor offense that is not
completed within five years from the date of sentencing must be vacated.” Appellant
claims that because he must register for life as an arson offender, his sentence cannot be
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completed within five years. He requests that he be relieved from the duty to register as
an arson offender.
{¶ 29} In Zucal, the defendant was sentenced to serve ten days in jail following
her misdemeanor conviction for driving while under the influence of alcohol. Due to jail
overcrowding, however, the completion of her sentence was repeatedly postponed, until
more than six years had elapsed since the time of her sentence. The Ohio Supreme Court
found that such a lengthy delay was an unlawful deprivation of the defendant’s liberty.
Id. at 220.
{¶ 30} Here, the requirement that appellant register as an arson offender for life
does not run afoul of Zucal. Registration programs have “long been a valid regulation
technique with a remedial purpose.” Caldwell, 1st Dist. Hamilton No. C130812, 2014-
Ohio-3566 at ¶ 35. We agree with the State that requiring appellant to register on the
arson registry does not constitute a punishment, but is rather a remedial tool. Appellant’s
third assignment of error is not well-taken.
{¶ 31} Appellant’s fourth assignment of error concerns the trial court’s order that
he reimburse the Toledo Fire Department in the amount of $221.26.
{¶ 32} First, appellant suggests that restitution is limited to actual victims and may
not be ordered in favor of a state agency. R.C. 2929.71(D) expressly provides that the
court shall “order the offender, as part of the offender’s sentence, to reimburse the
agencies from the offender’s assets for all or a specified portion of their established
costs.” See e.g. State v. Nickell, 6th Dist. Wood No. WD-11-053, 2013-Ohio-47. To the
10.
extent that appellant argues that R.C. 2929.71 does not authorize reimbursement in favor
the fire department, his argument is not well-taken.
{¶ 33} In the alternative, appellant argues that the court failed to comply with R.C.
2929.71. First, appellant argues that the trial court did not enforce its own deadline after
the fire department filed and served the invoice one day late.
{¶ 34} We reject appellant’s argument. At sentencing, appellant’s attorney stated,
“We certainly don’t have any objection to the number of hours that they submitted and
are requesting.” We find that appellant waived any objection to the timeliness of the
invoice.
{¶ 35} Finally, appellant complains that the trial court failed to identify any of
appellant’s assets that could be used to satisfy the reimbursement order.
{¶ 36} The record indicates otherwise. The trial court heard evidence from
appellant’s counsel that his client receives social security disability payments. Thus, the
trial court did not fail to identify appellant’s assets from which he could satisfy the order.
{¶ 37} We find that the trial court complied with R.C. 2929.71 when it ordered
appellant to reimburse the Toledo Fire Department. Appellant’s fourth assignment of
error is not well-taken.
{¶ 38} Finally, in his fifth assignment of error, appellant argues that costs were
improperly imposed against him. We agree, and we remand this case for a limited
purpose, as set forth below.
{¶ 39} Appellant makes three distinct arguments with regard to costs. First, he
claims that the trial court violated Crim.R. 43 by imposing costs outside of his presence.
11.
{¶ 40} During his sentencing hearing on January 20, 2016, the court stated, “It is
therefore the sentence of this court [that] the [appellant] * * *pay the costs of prosecution,
including any costs associated with the appointment of counsel. [A]ppellant is also to
pay $221.26 to the Toledo Fire Department.”
{¶ 41} In the subsequent Judgment Entry, dated January 21, 2016, the trial court
stated,
[Appellant] found to have, or reasonably may be expected to have
the means to pay all or part of the applicable costs of supervision,
confinement, assigned counsel, and prosecution as authorized by law.
Defendant ordered to reimburse the State of Ohio and Lucas County for
such costs and to pay restitution in the amount of $221.26 to Toledo
Fire Department. This order of reimbursement and restitution is a
judgment enforceable pursuant to law by the parties in whose favor it is
entered. Defendant further ordered to pay the costs assessed pursuant to
R.C. 9.92(C) 2929.18 and 2951.021. Notification pursuant to R.C. 2947.23
given. (Emphasis in the original.)
{¶ 42} Thus, the judgment entry includes additional costs not referenced during
the sentencing hearing, specifically the costs of supervision, costs of confinement, and
costs assessed pursuant to R.C. 9.92(C), 2929.18, and 2951.021.
{¶ 43} R.C. 2947.23 requires trial courts to impose court costs in criminal cases,
but a trial court may waive the payment of costs upon the motion of an indigent
defendant. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14.
12.
A motion to waive the payment of costs must be made at the time of sentencing. When a
trial court fails to mention costs during the sentencing hearing, however, a defendant is
denied the opportunity to request a waiver. State v. Joseph, 125 Ohio St.3d 76, 2010-
Ohio-954, 926 N.E.2d 278, ¶ 13. Moreover, when court costs are imposed later by means
of the sentencing entry, a trial court violates Crim.R. 43(A) by depriving the defendant of
the right to be present at each stage of the proceedings. Id. at ¶ 22. The appropriate
remedy for this error is to remand the case for the limited purpose of permitting the
defendant to move for a waiver of the payment of court costs. Id. at ¶ 23.
{¶ 44} In this case, the trial court erred by imposing those costs previously
identified without giving appellant the opportunity to seek a waiver. Upon remand, the
trial court shall assign all costs with appellant present and permit him to move for a
waiver.
{¶ 45} Next, appellant argues that the trial court erred when it ordered him to pay
the costs associated with his court appointed counsel. He argues that there was no
evidence that he has, or will have, the ability to pay such costs.
{¶ 46} Prior to the imposition of costs for appointed counsel, the trial court must
first find that the defendant has, or will have, the ability to pay. State v. Gibson, 6th Dist.
Lucas No. L-14-1162, 2015-Ohio-3613, ¶ 6. The court is not required to conduct a
hearing on a defendant's ability to pay; rather, the record must contain some evidence that
the court considered the defendant's financial ability to pay. Id.{¶ 47} In the present case, the trial court's sentencing entry specifically references
its finding that appellant had, or would have, the ability to pay. The only evidence in the
13.
record supporting the court’s conclusion is a statement from appellant’s attorney that
appellant receives a “low” social security disability benefit for his mental health
problems. The record also reveals that, at the time of sentencing, appellant was 43 years
old with no high school education or General Equivalency Degree (“GED”). Appellant
also has a history of mental health and substance abuse issues. The record reveals no
work history and a lengthy criminal record.
{¶ 48} We find that the record does not support the imposition of costs of
appointed counsel. Id., citing State v. Hart, 6th Dist. Lucas No. L-03-1073, 2004-Ohio-
5511, ¶ 35 (Although there was evidence in the record of social security benefits for a
mental disability, the court failed to question the defendant concerning his income.)
Upon remand, we order the trial court to consider appellant’s ability to pay and to support
that conclusion with evidence in the record.
{¶ 49} Finally, appellant argues that the trial court erred when it imposed costs
pursuant to R.C. 2929.18 and 2951.021.
{¶ 50} R.C. 2951.021 allows for the recovery of costs for the monthly supervision
of a person who is sentenced to community control; R.C. 2929.18 allows for financial
sanctions related to felony sentences. As appellant points out, he was neither sentenced
to community control, nor convicted of a felony.
{¶ 51} Upon remand, we instruct the trial court to eliminate any reference to the
imposition of costs that are inapplicable to appellant.
14.
V. Conclusion
{¶ 52} The judgment of the Lucas County Court of Common Pleas is affirmed, in
part, and reversed, in part.
{¶ 53} Appellant’s fifth assignment of error is found well-taken. We remand this
case as to the imposition of costs only, consistent with the instructions set forth herein.
The trial court shall impose only those costs applicable to appellant, in his presence, and
allow him the opportunity to seek a waiver of those costs. The judgment and sentence is
otherwise affirmed, and appellant’s assignments of error one through four are not well-
taken. Costs are assessed to appellant pursuant to App.R. 24.
Judgment affirmed, in part
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
15.