State v. Jordan , 2021 Ohio 333 ( 2021 )

[Cite as State v. Jordan, 2021-Ohio-333.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1165
Appellee Trial Court No. CR0201703129
v.
Jerome Jordan DECISION AND JUDGMENT
Appellant Decided: February 5, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Jerome Jordan, appeals the August 10, 2018 judgment of the
Lucas County Court of Common Pleas. As part of his sentence following his conviction
on six counts of robbery, Jordan was ordered to pay restitution to his victims and to pay
all associated costs. For the reasons that follow, we affirm, in part, and reverse, in part,
the trial court’s judgment.
I. Background
{¶ 2} On December 11, 2017, Jordan was indicted on 11 counts of aggravated
robbery in violation of R.C. 2911.01(A)(1) and (C), each a fifth-degree felony. Jordan
appeared for his arraignment on December 20, 2017. He was appointed counsel and
entered a not guilty plea to all counts.
{¶ 3} On July 11, 2018, Jordan appeared for a change of plea hearing. Through an
agreement with the state, Jordan entered a guilty plea pursuant North Carolina v. Alford,
400 U.S. 25, 91 S.Ct. 160 (1970), to six counts of robbery in violation of R.C.
2911.02(A)(2) and (B). Jordan also agreed to “pay restitution in an amount to be
determined through the pre-sentence investigation.” In exchange, the state agreed to
request dismissal of the remaining five counts, and the state also agreed that it would not
make a sentencing recommendation. The trial court accepted Jordan’s plea and ordered
him to participate in a presentencing investigation.
{¶ 4} On August 8, 2018, the trial court sentenced Jordan to a three-year prison
term on each of the first four counts of robbery and to a two-year prison term on the two
remaining counts. The trial court ordered him to serve all prison terms consecutively for
an aggregate prison term of 16 years. The trial court also ordered Jordan to pay a total of
$4,961.05 in restitution to the victims, and to pay “the cost of prosecution.” The trial
court dismissed the remaining counts at the state’s request and its judgment entry was
journalized the following day. Jordan failed to file an appeal within thirty days of the
judgment as required by App.R. 4(A)(1).
2.
{¶ 5} On August 5, 2019, Jordan filed a motion for delayed appeal pursuant to
App.R. 5(A) alleging that his trial counsel failed to timely file an appeal as he requested.
Jordan also filed an affidavit of indigency and requested appointment of counsel. The
state opposed Jordan’s motion on August 13, 2019. We granted Jordan’s motion on
November 19, 2019, appointed him counsel, and directed him to file an amended notice
of appeal, praecipe, and docketing statement to conform with App.R. 3. Jordan filed his
amended notice of appeal, docketing statement, and praecipe on November 19, 2019. He
asserts the following errors for our review:
1. The trial court abused its discretion when it ordered restitution at
sentencing without considering appellant’s ability to pay, pursuant to R.C.
2929.19(B)(5).
2. The trial court abused its discretion when it found appellant had,
or reasonably was expected to have, the ability to pay all or part of the
applicable costs of supervision, confinement, assigned counsel, and
prosecution in the judgment entry, but failed to impose such costs at
sentencing, without finding that appellant had the ability to pay.
II. Law and Analysis
A. Appellant waived review of the trial court’s order to pay restitution
{¶ 6} In his first assignment of error, Jordan argues that the trial court abused its
discretion when it failed to consider his ability to pay before it ordered him to pay a total
of $4,961.05 in restitution to the robbery victims.
3.
{¶ 7} We begin by clarifying that “the proper standard of review for analyzing the
imposition of restitution as part of a felony sentence is whether the sentence complies
with R.C. 2953.08(G)(2)(b).” State v. Young, 6th Dist. Lucas No. L-19-1189, 2020-
Ohio-4943, ¶ 11, citing State v. Collins, 2015-Ohio-3710, 41 N.E.3d 899, ¶ 31 (12th
Dist.). “This means that ‘in reviewing the order for restitution, we must determine
whether the restitution imposed was contrary to law rather than reviewing for an abuse of
discretion.’” Id., citing State v. Cantrill, 6th Dist. Lucas No. L-18-1047, 2020-Ohio-
1235, ¶ 87. We, therefore, review Jordan’s first assignment of error under this standard
rather than under the abuse of discretion standard identified in his assignment of error.
{¶ 8} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a
sentence in order to compensate a victim for economic loss. State v. Lalain, 136 Ohio
St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 20. Before ordering restitution, the trial
court must first determine whether the offender has a present or future ability to pay the
amount determined as appropriate. State v. Bey, 2019-Ohio-423, 130 N.E.3d 1031, ¶ 43
(6th Dist.). There is, however, an exception to this requirement when the defendant
agrees to pay restitution as “part and parcel of a plea agreement.” State v. Coburn, 6th
Dist. Sandusky No. S-09-006, 2010-Ohio-692, ¶ 22. In that instance, “there is no
reversible error in imposing [restitution], without first determining the defendant’s ability
to pay.” Id. Moreover, a defendant that agrees to pay restitution as part of their plea
agreement “waives the issue of whether he or she will be able in the future to pay the
amount agreed upon.” Id.
4.
{¶ 9} Here, Jordan argues that the trial court’s failure to consider his ability to pay
restitution was nonetheless reversible error because, although he may have agreed to pay
restitution in the plea agreement, the amount of restitution was not specified at the time of
his plea. That is, Jordan agreed to pay “restitution in an amount to be determined through
the pre-sentence investigation” as part of his plea agreement.
{¶ 10} But, Jordan is not challenging the amount of restitution that the trial court
imposed. Rather, he is challenging the trial court’s imposition of any restitution without
first considering his ability to pay that restitution. In Coburn, we stated “[u]nlike the
amount of restitution, which we previously determined was improperly imposed, the
overall agreement to pay some sort of restitution at all was included in and considered by
appellant before entering his plea. * * * Therefore, we conclude the trial court did not err
in accepting appellant’s plea agreement to pay restitution to the victim without
determining his ability to pay.” Coburn at ¶ 23 (emphasis sic), see also State v. Kurth,
6th Dist. Lucas Nos. L-15-1238, L-15-1239, 2016-Ohio-7698, ¶ 10-12 (holding that the
trial court’s failure to consider a defendant’s ability to pay an amount of restitution
unknown at the time of their plea but ascertained and imposed at the sentencing hearing
without objection was not error). Accordingly, a defendant that agrees to pay restitution
in a plea agreement cannot challenge, on appeal, the trial court’s failure to consider his or
her ability to pay before imposing restitution—even if the actual amount of restitution
was not specified in the plea agreement.
5.
{¶ 11} Given that Jordan agreed to pay restitution in his plea agreement, he has
waived his ability to challenge the trial court’s failure to consider his ability to pay
restitution. We therefore find his first assignment of error not well-taken.
B. The trial court improperly imposed the costs
of confinement and assigned counsel fees.
{¶ 12} In his second assignment of error, Jordan argues that the trial court abused
its discretion by imposing the costs of confinement, attorney fees, and costs of
prosecution in its judgment entry without making such findings at sentencing or
considering his current or future ability to pay such costs.
{¶ 13} As an initial matter, appellant cites the incorrect standard of review. We
review the imposition of court costs under R.C 2953.08(G)(2), not for abuse of
discretion. See State v. Gessel, 6th Dist. Williams No. WM-19-004, 2020-Ohio-403, ¶ 5.
{¶ 14} At the sentencing hearing, the trial court ordered Jordan to pay “the costs of
prosecution” but did not reference the costs of confinement, attorney fees, or costs of
prosecution. In its sentencing entry, however, the trial court stated that it found Jordan
“to have, or reasonably may be expected to have, the means to pay all or part of the
applicable costs of supervision,1 confinement, assigned counsel, and prosecution as
1
Although the trial court included costs of “supervision” in its judgment entry, such costs
are not at issue in this case because Jordan was sentenced to prison, not community
control. See State v. Eaton, 6th Dist. Lucas No. L-18-1183, 2020-Ohio-3208, ¶ 33; R.C.
2929.18(A)(5)(a)(i) (permitting a trial court to order reimbursement of costs incurred by
the government for “all or part of the costs of implementing any community control
sanction, including a supervision fee.”)
6.
authorized by law.” As a result, Jordan was “ordered to reimburse the State of Ohio and
Lucas County for such costs[.]”
{¶ 15} We must first consider whether the costs imposed are mandatory or
discretionary. Id. at ¶ 24. With regard to the costs of prosecution, R.C. 2947.23(A)(1)(a)
provides that the trial court shall render against a convicted defendant a judgment for the
costs of prosecution without consideration of whether the defendant has the ability to pay
such costs. State v. Rhoda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 13. Given
that the trial court was required to impose the costs of prosecution—without any regard to
Jordan’s ability to pay—the trial court’s imposition of these costs was not error.
{¶ 16} The costs of confinement and assigned counsel, however, are not
mandatory and “are premised on a finding of a defendant’s present or future ability to
pay.” State v. Seals, 6th Dist. Lucas No. L-17-1177, 2018-Ohio-2028, ¶ 14, citing State
v. Johnson, 6th Dist. Lucas No. L-16-1165, 2017-Ohio-8206, ¶ 24. To impose these
costs, the trial court must affirmatively find that the defendant has, or reasonably may be
expected to have, the ability to pay. State v. Grey, 6th Dist. Lucas No. L-15-1072, 2015-
Ohio-5021, ¶ 21. Such a finding need not be made at a formal hearing, but the record
must contain some evidence that the court considered the defendant's ability to pay.”
Seals at ¶ 14, citing State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919,
¶ 13. When the record on appeal contains no evidence reflecting the trial court’s
consideration of present or future ability to pay these costs—such as consideration of
7.
defendant’s age, health, employment history, or level of education—the imposition of
these costs is improper and must be vacated. State v. Stovall, 6th Dist. Lucas No.
L-18-1048, 2019-Ohio-4287, ¶ 37.
{¶ 17} Here, the trial court did not make any finding regarding Jordan’s ability to
pay the costs of confinement and assigned counsel at his sentencing hearing. Further, the
trial court failed to address any evidence of Jordan’s ability to pay these costs during the
underlying proceedings. Therefore, Jordan’s second assignment of error is found well-
taken, in part, and we vacate the award of costs of confinement and assigned counsel.
III. Conclusion
{¶ 18} We find Jordan’s first assignment of error not well-taken. We find
Jordan’s second assignment of error not well-taken as to the trial court’s imposition of the
mandatory costs of prosecution. We find Jordan’s second assignment of error well-taken
as to the non-mandatory costs of confinement and appointed counsel. We therefore
vacate the trial court’s award of these non-mandatory costs. The mandatory costs of
prosecution are not vacated by this decision. We affirm the remainder of the August 10,
2018 judgment of the Lucas County Court of Common Pleas. Jordan and the state are
ordered to share the costs of this appeal pursuant to App.R.24.
Judgment affirmed, in part,
and reversed, in part.
8.
State v. Jordan
C.A. No. L-19-1165
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
9.