State v. Leveck , 2021 Ohio 1547 ( 2021 )

[Cite as State v. Leveck, 2021-Ohio-1547.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
State of Ohio Court of Appeals No. F-20-009
Appellee Trial Court No. 20CR22
v.
John D. Leveck DECISION AND JUDGMENT
Appellant Decided: April 30, 2021
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Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, John D. Leveck, appeals the September 11, 2020 judgment of the
Fulton County Court of Common Pleas sentencing him to an aggregate prison term of
41 months and ordering him to pay restitution, costs of prosecution, and appointed-
counsel fees, following his conviction for complicity to commit aggravated possession of
drugs and attempted felonious assault. For the following reasons, we affirm the trial
court’s judgment.
I. Background
{¶ 2} On February 10, 2020, Leveck was indicted on one count of complicity to
commit aggravated possession of drugs in violation of R.C. 2923.03(A)(2) and
2925.11(A), a fifth-degree felony; one count of aggravated possession of drugs in
violation of R.C. 2925.11(A), a first-degree felony; one count of involuntary
manslaughter in violation of R.C. 2903.04(A), a first-degree felony; one count of
aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2), a first-degree felony;
one count of reckless homicide in violation of R.C. 2903.041(A), a third-degree felony;
and one count of felonious assault in violation of R.C. 2903.11(A)(1). At his March 18,
2020 arraignment, Leveck was determined to be indigent and was assigned counsel. He
entered a not-guilty plea to all counts.
{¶ 3} The charges arose from Leveck’s conduct on January 17, 2020. On that
date, Leveck and his codefendants, Jeremiah Gonzalez and Amber Barnett, participated
in the sale of heroin to victims K.M. and B.F. in Michigan. After completing the sale,
Gonzalez drove Leveck and the victims back to Ohio in a vehicle owned by Barnett.
While driving, victim B.F. fell asleep and began snoring. Leveck and Gonzalez believed
he was overdosing on heroin. Gonzalez pulled the vehicle over at the intersection of
County Road D and County Road 15 near Wauseon, Ohio. He and Leveck removed B.F.
and K.M—who was also asleep—from the vehicle. They placed the victims on the side
of the roadway and left. The victims were discovered by the Fulton County Sherriff’s
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Department while responding to a call reporting their location. The victims were
transferred to the Fulton County Health Center for treatment for hypothermia. Although
B.F. survived, K.M. died in the hospital.
{¶ 4} On July 7, 2020, Leveck appeared for a change of plea hearing. Following
negotiations with the state, Leveck agreed to enter a guilty plea to an amended count of
attempted felonious assault and one count of complicity to commit aggravated possession
of drugs. Leveck also agreed to testify against his codefendants should their cases
proceed to trial. In exchange, the state agreed to request dismissal of the remaining
counts. The trial court accepted Leveck’s guilty plea and ordered him to participate in a
presentencing interview before his sentencing hearing on September 10, 2020.
{¶ 5} At the sentencing hearing, the trial court imposed a prison term of 11 months
for Leveck’s conviction for complicity to commit aggravated possession of drugs, and a
prison term of 30 months for his conviction for attempted felonious assault. The trial
court ordered Leveck to serve the prison terms consecutively, resulting in an aggregate
prison term of 41 months. The trial court also ordered Leveck to pay $5,999.28 in
restitution to K.M.’s mother for funeral expenses, as well as the costs of prosecution and
appointed counsel fees. The trial court memorialized Leveck’s sentence and, as agreed,
dismissed the remaining counts in its September 11, 2020 judgment entry. Leveck timely
appealed and asserts the following errors for our review:
1. The trial court committed error to the prejudice of appellant by
imposing consecutive sentences.
3.
2. The trial court committed error to the prejudice of appellant by
imposing attorney’s fees, all costs of prosecution, and restitution without
consideration of appellant’s present or future ability to pay.
II. Law and Analysis
A. The trial court made the necessary findings to impose consecutive sentences
{¶ 6} In his first assignment of error, Leveck argues that the trial court erred in
ordering consecutive sentences. Specifically, he argues that the trial court failed to make
the necessary findings under R.C. 2929.14(C)(4) to impose consecutive sentences, and he
also argues that the trial court improperly weighed the seriousness and recidivism factors
in R.C. 2929.12 when it imposed consecutive sentences, resulting in an aggregate
sentence that did not accomplish the purposes of felony sentencing in R.C. 2929.11. We
disagree.
{¶ 7} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings, 6th
Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. The burden is on the appellant to
identify clear and convincing evidence in the record that their sentence was erroneously
imposed. State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6. We
may increase, modify, or vacate and remand a trial court’s imposition of consecutive
sentences only if we clearly and convincingly find that: (1) “the record does not support
the sentencing court’s findings under division * * * (C)(4) of section 2929.14, * * *” or
(2) “the sentence is otherwise contrary to law.” Id., citing R.C. 2953.08(G)(2).
4.
{¶ 8} R.C. 2929.14(C)(4) requires the trial court to make three statutory findings
before imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-
493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 26. The court must find that (1) consecutive sentences are necessary to
protect the public from future crime or to punish the offender; (2) consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct and to the danger that
the offender poses to the public; and (3) R.C. 2929.14(C)(4)(a), (b), or (c) is applicable.
Beasley at ¶ 252. “[T]he trial court must make the requisite findings both at the
sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253,
citing Bonnell at ¶ 37.
{¶ 9} Here, Leveck argues that “[t]he transcripts and sentencing entry are devoid
of the necessary [R.C. 2929.14(C)(4)] findings.”1 Our review of the record shows that
the trial court made the required findings at the sentencing hearing when the trial court
stated:
It is further ordered that [Leveck] will serve these terms consecutively as at
least two of the multiple offenses were committed as a part of one or more
course of conduct. And the harm caused by the two or more multiple
offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct, adequately
1
Leveck does not argue that the record does not support the trial court’s findings under
R.C. 2953.08(G)(2)(a).
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reflects the seriousness of his conduct. And the offender has a history of
criminal conduct demonstrates a consecutive sentences are necessary to
protect the public from future crime by this offender. Finally, one or more
of the multiple offenses were committed while the offender was under a
sanction imposed under the Revised Code of some form of post release
control or probation.
Moreover, the trial court expressly incorporated those findings in the judgment entry.
We therefore reject Leveck’s argument to the contrary.
{¶ 10} Leveck also argues that the aggregate length of his consecutive sentences is
disproportionate and therefore does not accomplish the purposes of felony sentencing
under R.C. 2929.11. The Supreme Court of Ohio, however, has held that appellate courts
cannot review the aggregate length of consecutive sentences under R.C. 2929.11 and
2929.12. State v. Gwynn, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 17.
Rather, appellate review of consecutive sentences is limited to R.C. 2929.14(C)(4), as
stated in R.C. 2953.08(G)(2)(a). Id. And, even if we were not limited to R.C.
2929.14(C)(4) for appellate review of consecutive sentences, R.C. 2953.08(G)(2) does
not permit an “appellate court to independently weigh the evidence in the record and
substitute its judgment for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.” State v. Jones, Slip Opinion No. 2020-
Ohio-6729, ¶ 42.
6.
{¶ 11} Leveck therefore fails to identify clear and convincing evidence that the
trial court erred in imposing consecutive sentences. Therefore, his first assignment of
error is found not well-taken.
B. The trial court properly imposed financial sanctions
{¶ 12} In his second assignment of error, Leveck argues that the trial court erred in
imposing the costs of prosecution, appointed counsel fees, and restitution without
considering his ability to pay. We disagree.
{¶ 13} Initially, we note that Leveck failed to object to the imposition of costs or
restitution at the time of sentencing. As a result, we review this assignment of error
under a plain error standard of review. State v. Griffin, 6th Dist. Lucas No. L-11-1283,
2013-Ohio-411, ¶ 43. Plain error is error affecting substantial rights and is reserved for
the exceptional case where reversal of the trial court’s judgment is necessary to prevent a
manifest miscarriage of justice. State v. Tucker, 6th Dist. Sandusky No. S-11-003, 2012-
Ohio-622.
{¶ 14} 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
Leveck’s ability to pay—the trial court’s imposition of these costs was not error.
7.
{¶ 15} The trial court also correctly ordered Leveck to pay appointed counsel fees
and restitution. R.C. 2941.51(D) permits the trial court to impose the costs of appointed
counsel. R.C. 2929.18(A)(1) authorizes the trial court to impose restitution as part of a
sentence in order to compensate a victim for economic loss. Unlike the costs of
prosecution, these costs are not mandatory and are premised on a finding of the
defendant’s present or future ability to pay. See 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 (costs of appointed counsel fees are conditioned on
defendant’s ability to pay); State v. Cantrill, 6th Dist. Lucas No. L-18-1047, 2020-Ohio-
1235, ¶ 90 (restitution is conditioned on appellant’s ability to pay).
{¶ 16} But, a trial court is not required to conduct a separate hearing or explicitly
state that it considered a defendant’s ability to pay. State v. Flowers, 6th Dist. Lucas No.
L-14-1141, 2015-Ohio-908, ¶ 11, citing State v. Phillips, 6th Dist. Fulton No. F-05-032,
2006-Ohio-4135, ¶ 18. Instead, “we look to the totality of the record to determine
whether the requirement has been satisfied.” Flowers at ¶ 11. The record, as a whole,
“must contain some evidence that the court considered the offender’s present and future
ability to pay such a sanction.” Phillips at ¶ 18.
{¶ 17} Here, the trial court did not conduct a separate hearing or make an express
finding regarding Leveck’s ability to pay the costs of his appointed counsel or restitution.
But, before sentencing, the trial court referred the matter for a presentencing investigation
report (“PSI”). The trial court indicated that it considered the PSI in determining
8.
Leveck’s sentence. We reviewed the PSI and it includes the financial, educational, and
vocational information necessary for the trial court to determine that Leveck could pay
the discretionary financial sanctions. Cantrill at ¶ 91 (finding the trial court’s review of a
PSI containing “financial, educational, and vocational information” before sentencing
“demonstrates that the trial court considered [the appellant’s] present and future ability to
pay.”). Thus, we find that the trial court did not abuse its discretion when it concluded
that Leveck has the ability to pay attorneys’ fees and restitution.
{¶ 18} Finally, Leveck argues that the trial court erred when it imposed financial
sanctions because he was deemed indigent and therefore required appointed trial counsel
for his defense. This, he argues, shows that he would be unable to pay the financial
sanctions. It is well-established, however, that “the determination that a defendant is
indigent for purposes of appointed counsel is separate and distinct from a determination
that the person is indigent for purposes of paying a mandatory fine or financial sanction.”
State v. Bey, 2019-Ohio-423, 130 N.E.3d 1031, ¶ 46, citing State v. Adams, 12th Dist.
Clermont No. CA2017-03-018, 2017-Ohio-8536, ¶ 28; State v. Andrews, 1st Dist.
Hamilton No. C-1107035, 2012-Ohio-4664, ¶ 29 (“an offender’s ability to pay a fine
over a period of time is not equivalent to the ability to pay legal counsel a retainer fee at
the outset of the criminal proceedings”). Thus, the trial court’s initial determination of
indigency does not, on its own, serve as a basis on which to reverse the trial court’s
imposition of financial sanctions at the close of those proceedings.
9.
{¶ 19} For these reasons, we find the trial court did not commit plain error in
ordering Leveck to pay the costs of prosecution, appointed counsel fees, and restitution.
His second assignment of error is found not well-taken.
III. Conclusion
{¶ 20} We find both of Leveck’s assignments of error not well-taken. We affirm
the September 11, 2020 judgment of the Fulton County Court of Common Pleas. Leveck
is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
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
Christine E. Mayle, J.
_______________________________
Myron C. Duhart, 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/.
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