State v. McNeil , 2019 Ohio 1200 ( 2019 )

[Cite as State v. McNeil, 2019-Ohio-1200.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-09-115
: OPINION
- vs - 4/1/2019
:
RONNIE McNEIL, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 18CR34197
David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee
Bryan S. Hicks, P.O. Box 359, Lebanon, Ohio 45036, for appellant
HENDRICKSON, P.J.
{¶ 1} Appellant, Ronnie McNeil, appeals the sentence imposed by the Warren
County Court of Common Pleas after he pled guilty to theft and criminal damaging. For the
reasons stated below, we affirm his sentence.
{¶ 2} In May 2018, appellant was indicted on six counts of theft, in violation of R.C.
2913.02(A)(1), and four counts of criminal damaging, in violation of R.C. 2909.06(A)(1).
Three of the theft offenses constituted fifth-degree felonies pursuant to R.C. 2913.71, while
Warren CA2018-09-115
the remaining three theft offenses constituted first-degree misdemeanors. All the criminal
damaging offenses constituted second-degree misdemeanors. These charges resulted from
appellant breaking into multiple parked cars in Mason, Ohio and stealing credit cards, money,
and other miscellaneous items.
{¶ 3} On June 5, 2018, appellant pled guilty to four of the offenses: three felony theft
counts and one count of criminal damaging. In exchange for the plea, the remaining six
charges were dismissed. The trial court found appellant guilty and ordered a presentence-
investigative report and a community-based correctional facility evaluation.
{¶ 4} On August 7, 2018, the trial court sentenced appellant to three years of
community control. As part of the community control sanction, the trial court ordered
placement in a community-based correctional facility, a period of house arrest, and payment
of $2,266 in restitution to the victims. The trial court did not impose any other financial
sanctions and waived court costs. Moreover, the trial court notified appellant that there was a
potential incarceration of twelve months in prison for the first theft count, six months in prison
for each of the remaining two theft counts, and 90 days in jail for the criminal damaging count
should he violate the terms and conditions of community control. At the hearing, the trial
court made findings that each of the potential prison terms would be served consecutively to
one another, for an aggregate prison term of 24 months.
{¶ 5} Appellant appeals his sentence, raising two assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION IN ITS RESTITUTION
ORDER.
{¶ 8} In his first assignment of error, appellant argues the trial court abused its
discretion when it ordered him to pay restitution, because the court failed to consider his
present and future ability to pay the financial sanction.
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{¶ 9} We review an order of restitution, as part of a felony sentence, under the
standard set forth in R.C. 2953.08(G)(2). State v. Blevings, 12th Dist. Warren No. CA2017-
12-175, 2018-Ohio-4382, ¶ 16. Pursuant to R.C. 2953.08(G)(2), an appellate court may
modify or vacate a sentence only if there is clear and convincing evidence the record does
not support the trial court's findings under relevant statutes or the sentence is contrary to law.
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1. Ultimately, an appellate court
does not review under an abuse of discretion standard. R.C. 2953.08(G)(2); Marcum at ¶ 10.
{¶ 10} Pursuant to R.C. 2929.18, a trial court may impose restitution as part of a felony
sentence. To impose restitution, R.C. 2929.19(B)(5) requires a trial court "consider" the
offender's present and future ability to pay. However, a trial court is not required to make
express findings as to ability to pay or include in the judgment entry express language that it
considered ability to pay. State v. Geldrich, 12th Dist. Warren No. CA2015-11-103, 2016-
Ohio-3400, ¶ 12. The "consideration" requirement will be met if there is some evidence in
the record to indicate the trial court considered ability to pay. Id. A presentence-investigative
report in the record, which contains an offender's personal and financial information, is
sufficient evidence to indicate consideration. State v. Dehner, 12th Dist. Clermont No.
CA2012-12-090, 2013-Ohio-3576, ¶ 47.
{¶ 11} Since appellant did not object to the order of restitution, he has waived all but
plain error review on appeal. Blevings at ¶ 17. To constitute plain error, the error must be
obvious. State v. Yanez, 12th Dist. Butler No. CA2016-10-190, 2017-Ohio-7209, ¶ 23. Plain
error is justiciable when the outcome would have been different, but for the error. State v.
Liming, 12th Dist. Clermont Nos. CA2018-05-028 and CA2018-05-029, 2019-Ohio-82, ¶ 35.
Review of plain error is made with utmost caution and only to prevent a manifest miscarriage
of justice. Id. Nevertheless, it is plain error for a trial court to impose restitution on an
offender without considering the offender's present and future ability to pay. State v. Chaffin,
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12th Dist. Madison No. CA2016-08-026, 2017-Ohio-4041, ¶ 11.
{¶ 12} After review of the record, we find no error in the trial court's order of restitution
as part of appellant's sentence, because the record demonstrates consideration of
appellant's ability to pay. Foremost, the trial court ordered a presentence-investigative report
that included appellant's personal and financial information. This alone is adequate to show
the trial court complied with the statutory consideration requirement. Dehner at ¶ 47.
{¶ 13} In addition to the presentence report, at the sentencing hearing, the trial court
explicitly demonstrated consideration of appellant's present and future ability to pay when it
stated:
I am going to make a finding that [appellant is] indigent. I know
that [appellant is] on Social Security at this time, and I'm not
going to level any additional financial sanctions against
[appellant], including the costs of prosecution. *** I want
[appellant] to pay restitution, but I *** [t]here's no sense in piling
on him right now.
{¶ 14} By waiving court costs and other financial sanctions, the trial court indicated it
considered appellant possessed means, although limited, to pay restitution. Consequently,
the trial court did not err by ordering appellant to pay restitution. Therefore, appellant's first
assignment of error is overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} THE TRIAL COURT IMPROPERLY MADE FINDINGS FOR CONSECUTIVE
PRISON SENTENCES.
{¶ 17} In his second assignment of error, appellant argues the trial court erred by
making statutory findings to impose consecutive prison terms, despite sentencing appellant
to community control. We find that the error was harmless, as any argument regarding the
imposition of consecutive sentences is not ripe for review.
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{¶ 18} To be justiciable, a claim or issue must be a real controversy for which a judicial
resolution will have a "direct and immediate" impact. State v. McCarty, 12th Dist. Butler No.
CA2006-04-093, 2007-Ohio-2290, ¶ 15. If the claim rests on future events that may not
occur, then it will not be ripe for adjudication. Texas v. United States, 523 U.S. 296, 300, 118
S. Ct. 1257 (1998).
{¶ 19} When an offender is sentenced to community control, a trial court may impose
a prison term on an offender as punishment for violating the community control sanction.
R.C. 2929.15(B). However, the court must notify the offender of the potential prison term at
the original offense's sentencing hearing or a prior community control violation sentencing
hearing. R.C. 2929.19(B)(4); R.C. 2929.15(B)(3); State v. Fraley, 105 Ohio St. 3d 13, 2004-
Ohio-7110, ¶ 18. This notification serves as a "ceiling" for the potential prison term the trial
court could impose on any future community control violations. State v. Brooks, 103 Ohio St.
3d 134, 2004-Ohio-4746, ¶ 23.
{¶ 20} To impose consecutive sentences, R.C. 2929.14(C)(4) requires a trial court to
make specific findings at the sentencing hearing and incorporate those findings in the
sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 37.
Nevertheless, when an offender is placed on community control, it is only necessary for the
trial court to make R.C. 2929.14(C)(4) findings when it actually imposes consecutive prison
sentences at a community control violation hearing. State v. Duncan, 12th Dist. Butler Nos.
CA2015-05-086 and CA2015-06-108, 2016-Ohio-5559, ¶ 41-47.
{¶ 21} Although the trial court was not required to make the consecutive sentence
findings at this stage, the error was harmless because these findings have no effect.
Appellant cannot show the trial court's error has a direct and immediate impact on him,
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because he has not violated his community control. Accordingly, appellant's second
assignment of error is overruled.
{¶ 22} Judgment affirmed.
RINGLAND and PIPER, JJ., concur.
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