State v. Hull , 2017 Ohio 7934 ( 2017 )

[Cite as State v. Hull, 2017-Ohio-7934.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-5
:
v. : Trial Court Case No. 2015-CR-686
:
DARIOUS DE’JOHN HULL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of September, 2017.
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ANDREW PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45501
Attorney for Plaintiff-Appellee
VICTORIA BADER, Atty. Reg. No. 0093505, Assistant State Public Defender, 250 East
Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Darious De’John Hull, appeals from the judgment of the
Clark County Court of Common Pleas ordering him to pay restitution in the amount of
$3,573.08 after he pled guilty to aggravated burglary with a three-year firearm
specification. In support of his appeal, Hull contends that the trial court failed to consider
his present and future ability to pay restitution as required by R.C. 2929.19(B)(5). Hull
also claims that his trial counsel rendered ineffective assistance in failing to object to the
trial court’s alleged error. For the reasons outlined below, the judgment of the trial court
will be affirmed.
Facts and Course of Proceedings
{¶ 2} On October 5, 2015, Hull was charged by complaint in the Clark County
Juvenile Court for acts that, if committed by an adult, would be attempted murder,
aggravated burglary, improper discharge of a firearm at or into a habitation, and criminal
damaging. On December 22, 2015, Hull waived probable cause and amenability
hearings and agreed to be bound over to the Clark County Court of Common Pleas on
the aggravated burglary charge.
{¶ 3} On January 13, 2016, Hull pled guilty to a bill of information charging him with
one count of aggravated burglary in violation of R.C. 2911.11(A)(2) with a three-year
firearm specification. Following the acceptance of Hull’s guilty plea, the trial court
ordered a presentence investigation (“PSI”) and scheduled the matter for sentencing on
February 2, 2016.
{¶ 4} At sentencing, the trial court indicated that it had reviewed Hull’s PSI.
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Thereafter, both counsel and Hull made statements to the trial court regarding sentencing.
After hearing the parties’ statements and considering the appropriate factors, the trial
court sentenced Hull to an aggregate prison term of 11 years. The trial court also
ordered Hull to pay restitution in the amount of $3,573.081 to Interfaith Hospitality for
repairs it made to the burglarized residence as a result of the offense. In imposing
restitution, the trial court did not specifically discuss whether it had considered Hull’s
present and future ability to pay the financial sanction.
{¶ 5} Hull now appeals from the trial court’s order of restitution, raising two
assignments of error for review.
First Assignment of Error
{¶ 6} Hull’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED WHEN IT IMPOSED A FINANCIAL
SANCTION WITHOUT CONSIDERING DARIOUS HULL’S PRESENT AND
FUTURE ABILITY TO PAY THE SANCTION, IN VIOLATION OF R.C.
2929.19(B)(5).
{¶ 7} Under his First Assignment of Error, Hull contends that the trial court’s order
of restitution should be reversed on grounds that the court allegedly failed to consider his
present and future ability to pay the restitution order in violation of R.C. 2929.19(B)(5).
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The transcript of the sentencing hearing provides that the order of restitution is for
$3,573.80. The judgment entry of conviction and the PSI provide that the order of
restitution is for $3,573.08. Given that a court speaks through its journal entries, State v.
Lowe, 2d Dist. Clark No. 2016-CA-18, 2017-Ohio-27, ¶ 7, and given the agreement
between the judgment entry and the PSI, we presume that the lesser amount, $3,573.08,
is the amount of restitution that was ordered by the trial court.
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Hull concedes that the appellate review of this matter is limited to noticing plain error given
that he did not raise an objection to the trial court’s alleged failure.
{¶ 8} For plain error to exist, the defect in the trial proceedings must be obvious
and must have affected the outcome of trial. State v. Payne, 114 Ohio St. 3d 502, 2007-
Ohio-4642, 873 N.E.2d 306, ¶ 16. “Notice of plain error ‘is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’ ” State v. Lang, 129 Ohio St. 3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108,
quoting State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus.
{¶ 9} R.C. 2929.19(B)(5) imposes a duty upon the trial court to “consider the
offender’s present and future ability to pay” before imposing restitution as a financial
sanction under R.C. 2929.18. However, “[t]he trial court does not need to hold a hearing
on the issue of financial sanctions, and there are no express factors that the court must
take into consideration or make on the record.” (Citation omitted.) State v. Culver, 160
Ohio App. 3d 172, 2005-Ohio-1359, 826 N.E.2d 367, ¶ 57 (2d Dist.) “ ‘A trial court need
not even state that it considered an offender’s ability to pay.’ ” State v. Garrett, 2d Dist.
Montgomery No. 25426, 2013-Ohio-3035, ¶ 7, quoting State v. Russell, 2d Dist.
Montgomery No. 23454, 2010-Ohio-4765, ¶ 62, citing State v. Parker, 2d Dist.
Champaign No. 03CA0017, 2004-Ohio-1313, ¶ 42.
{¶ 10} “The record should, however, contain ‘evidence that the trial court
considered the offender’s present and future ability to pay before imposing the sanction
of restitution.’ ” Culver at ¶ 57, quoting State v. Robinson, 3d Dist. Hancock No. 5-04-
12, 2004-Ohio-5346, ¶ 17. “Where the trial court fails to make an explicit finding on a
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defendant’s relative ability to pay, this court has observed that a trial court’s consideration
of this issue may be ‘inferred from the record under appropriate circumstances.’ ” State
v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 49 (2d Dist.), quoting Parker at ¶ 42. For
example, “[t]he trial court may comply with its obligation by considering a presentence
investigation report (‘PSI’), which includes information about the defendant’s age, health,
education, and work history.” (Citation omitted.) State v. Willis, 2d Dist. Montgomery
No. 24477, 2012-Ohio-294, ¶ 4.
{¶ 11} Hull claims that the present case is analogous to State v. Frock, 2d Dist.
Clark No. 2004 CA 76, 2007-Ohio-1026, wherein we held the trial court erred in ordering
Frock to pay $17,029 in restitution without considering his present and future ability to
pay. Id. at ¶ 9-10. Like the present case, the trial court in Frock made no direct inquiry
into Frock’s present or future ability to pay restitution during the sentencing hearing, but
advised that it had considered Frock’s PSI. Id. at ¶ 8. The PSI indicated that Frock was
21 years old with an 11th grade education. The PSI also indicated that Frock suffered
from mental illnesses including bipolarism and paranoid schizophrenia. Id. In addition,
the PSI noted that Frock was a substance abuser with an extensive criminal history that
resulted in several juvenile and adult confinements. Id. Although the PSI indicated that
Frock was sporadically employed as a laborer for his grandfather’s painting business, we
concluded that given his lengthy prison sentence of 19.5 years, along with the
discouraging information about Frock in the PSI, that the record “failed to demonstrate
that the court considered Frock’s present or future ability to pay restitution.” Id. at ¶ 8-9.
{¶ 12} Hull also likens the present case to State v. Brown, 3d Dist. Seneca No. 13-
15-06, 2015-Ohio-3402, wherein the Third District Court of Appeals found no evidence in
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the record to support the trial court’s conclusion that Brown had or would have the ability
to pay restitution. Id. at 12. As in Frock, the trial court did not address Brown’s present
and future ability to pay restitution at the sentencing hearing. Id. In addition, the PSI
considered by the trial court indicated that Brown was 17 years old with an 11th grade
education. Id. The PSI also indicated that Brown owed the juvenile court $1,500 and
that he had no income or employment history. Id. Furthermore, Brown received a
lengthy prison sentence of 30 years to life for his offenses. Id.
{¶ 13} There are obvious similarities between the instant case and Frock and
Brown. Specifically, the trial court in this case did not mention Hull’s present and future
ability to pay restitution at the sentencing hearing, but did consider Hull’s PSI report, which
indicates that Hull was 16 years old and in the 11th grade at the time he committed the
aggravated burglary in question. The PSI further indicates that Hull has no source of
income and no employment history. In addition, Hull is an admitted substance abuser,
as he advised the PSI investigator that he smoked marijuana every day.
{¶ 14} The present case, however, contains just as many differences as similarities
to Frock and Brown. For instance, the PSI indicates that Hull is in good physical health,
has no mental issues that he is aware of, and no financial obligations. Hull also
participated in an arts program called Project Jericho, and he has no adult criminal record
except for the instant offense. In addition, Hull’s prison sentence is 11 years, which is
significantly shorter than the prison terms imposed in Frock and Brown. Given Hull’s
young age, he will be out of prison well before his 30th birthday, which provides him plenty
of time to find employment, something he appears motivated to acquire, as he made the
following statement to the trial court at the sentencing hearing:
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Your Honor, I have grown-up from this experience and I thank God that I
am still alive, and I now realize that life is too short to be wasting time trying
to be somebody that I’m not. When I go to prison, sir, I’m going to take
care of business. I’m going to get my GED. I’m going to get my college
degree so when I come home, I’m going to use my talent God gave me and,
sir, I’m going to come home a wiser and smarter young man. I’m not going
to be like others and let this felony ruin my life. I honestly made a mistake
and I’m gonna better myself, sir. I’m not gonna accept any kind of people
that come my way. I am truly sorry for what happened to the police officers
that night, sir. Thank you for your time.
Sentencing Trans. (Feb. 2, 2016), p. 7-8.
{¶ 15} When considering Hull’s statement to the trial court, his youth, good health,
lack of any financial obligations, and his minimal adult criminal record, we find there was
sufficient information in the record for the trial court to find that Hull has the present and
future ability to pay restitution in the amount of $3,573.08. Accordingly, the trial court did
not commit any error, let alone plain error, in ordering him to pay the restitution as ordered.
{¶ 16} Hull’s First Assignment of Error is overruled.
Second Assignment of Error
{¶ 17} Hull’s Second Assignment of Error is as follows:
DARIOUS HULL WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTION 10,
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OHIO CONSTITUTION.
{¶ 18} Under his Second Assignment of Error, Hull contends that his trial counsel
rendered ineffective assistance by failing to object to the trial court’s alleged failure to
consider his present and future ability to pay restitution.
{¶ 19} In order to succeed on an ineffective assistance claim, Hull must show that
his trial counsel rendered deficient performance and that counsel’s deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d
373 (1989), paragraph two of the syllabus. To establish deficient performance, Hull must
show that his trial counsel’s performance fell below an objective standard of reasonable
representation. Strickland at 688; Bradley at 142. To establish prejudice, Hull must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. State v. Hale, 119 Ohio St. 3d
118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688, 694; Bradley
at paragraph two of the syllabus. The failure to make a showing of either deficient
performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland
at 697.
{¶ 20} Hull’s ineffective assistance claim lacks merit because we have already
determined that there was sufficient evidence in the record to infer that the trial court
considered Hull’s present and future ability to pay restitution. Accordingly, Hull’s trial
counsel did not render deficient performance in failing to object, as the trial court
committed no error to warrant such an objection. Furthermore, because there was no
error, Hull did not suffer any prejudice.
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{¶ 21} Hull’s Second Assignment of Error is overruled.
Conclusion
{¶ 22} Having overruled both assignments of error, the judgment of the trial court
ordering Hull to pay restitution in the amount of $3,573.08 is affirmed.
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HALL, P.J., concurs.
DONOVAN, J., dissenting:
{¶ 23} I disagree. In State v. Hill, 2d Dist. Clark No. 04 CA 47, 2005-Ohio-
3877, we stated: “Before imposing a monetary restitution requirement as part of a criminal
sentence, the court must ‘consider the offender’s present or future ability to pay.’ ...
Further, the record must affirmatively reflect the court’s consideration of those questions
in the offender’s case.” Id. at ¶ 11.
{¶ 24} In the instant case, the PSI, which the trial court said it reviewed, did not
address Hull’s present or future ability to pay restitution. The PSI, however, did establish
the following: 1) that Hull was sixteen years old at the time of the offense and was in the
eleventh grade at Springfield High School; 2) that he had a prior juvenile record; 3) that
he had no source of income and no employment history; and 4) that he used marijuana
on a daily basis.
{¶ 25} At the sentencing hearing, it is undisputed that the trial court failed to make
any inquiry into Hull’s future ability to pay. The issue was simply never raised at that
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time. Indeed, the trial court sentenced Hull to an aggregate term of eleven years in
prison, a significant term of incarceration. The trial court ordered Hull to pay restitution
in the amount of $3,573.08, the amount reported in the PSI.
{¶ 26} The majority finds that based upon Hull’s youth, good health, lack of
financial obligations, and minimal adult criminal record, they can “infer” from the record
that he has the present and future ability to pay restitution in the amount ordered by the
trial court. Upon review, I would find that there is no indication that the trial court
considered Hull’s present and future ability to pay restitution pursuant to R.C.
2929.19(B)(5), and I would not infer or presume such consideration by the trial court on
this record. See State v. Parker, 183 Ohio App. 3d 431, 2009-Ohio-3667, 917 N.E.2d 338,
¶ 16 (3d Dist.). In fact, if any inference is to be made here, I believe the record
establishes that Hull’s lack of employment history and the length of his sentence
demonstrate that he does not have present and future ability to pay the restitution order
imposed by the trial court. Hull’s desire to obtain his GED is laudatory, but with a felony
record, it does not guarantee future employment.
{¶ 27} Nevertheless, without some evidence in the record to support the trial
court’s order that Hull had or would have the ability to pay restitution, I would reverse the
judgment as to restitution for failure to comply with R.C. 2929.19(B)(5). See State v.
Brown, 3d Dist. Seneca No. 13-15-06, 2015-Ohio-3402, ¶ 12.
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Copies mailed to:
Andrew Pickering
Victoria Bader
Hon. Richard J. O’Neill