State v. Kurth

[Cite as State v. Kurth, 2016-Ohio-7698.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-15-1238
L-15-1239
Appellee
Trial Court Nos. CR0201402937
v. CR0201501788
Timothy Kurth DECISION AND JUDGMENT
Appellant Decided: November 10, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Maggie E. Koch, Assistant Prosecuting Attorney, for appellee.
Steven Casiere, for appellant.
*****
JENSEN, P.J.
{¶ 1} In this consolidated appeal, defendant-appellant, Timothy Kurth, appeals the
August 17, 2015 judgments of the Lucas County Court of Common Pleas. For the
reasons that follow, we affirm, in part, and reverse, in part, and we remand the matter to
the trial court to make corrections to the judgment entries as described in this decision.
I. Background
{¶ 2} On July 2, 2015, Timothy Kurth entered a plea of no contest to one count of
burglary, a violation of R.C. 2911.12(A)(2), in Lucas County case No. CR0201402937
(“the 2014 case”). That charge, a second-degree felony, arose after he burglarized the
home of his neighbor, B.T. That same day, Kurth also entered a plea of no contest to one
count of breaking and entering, a violation of R.C. 2911.13(A), in Lucas County case No.
CR0201501788 (“the 2015 case”). That charge, a fifth-degree felony, arose after he
broke into a business, Brent Industries.
{¶ 3} The trial court held a sentencing hearing in both cases on August 13, 2015.
Orally, the trial court announced a sentence of five years’ imprisonment and restitution of
$2,914.19 to the victim in the 2014 case, and 12 months’ imprisonment and restitution of
$186 to the victim in the 2015 case, with the prison terms to be served concurrently. At
the sentencing hearing, the trial court imposed the costs of prosecution and supervision
under R.C. 2947.231, but it found that Kurth was not reasonably expected to have the
means to pay all or part of the applicable court-appointed counsel fees and the costs of
confinement, and, therefore, waived those fees and costs.
{¶ 4} Kurth’s sentences were memorialized in two separate judgment entries
entered on August 17, 2015. Those entries accurately reflect the prison sentences
imposed at the hearing, however, with respect to restitution and the imposition of costs
and fees, the entries do not precisely mirror the sentences that were orally announced.
Specifically, the judgment entry in the 2014 case orders restitution to both victims; the
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entry in the 2015 case is silent as to restitution. Additionally, the entry in the 2014 case
states “Defendant found to have, or reasonably may be expected to have, the means to
pay all or part of the applicable costs of supervision, confinement, and prosecution as
authorized by law,” but then goes on to say “The Court finds the defendant lacks
financial resources that are sufficient to pay the fee and/or payment of the fee would
result in undue hardship and WAIVES the $25 fee for Assigned Counsel pursuant to R.C.
120.36 and costs of confinement.” While the entry in the 2015 case includes the first
statement, it omits the waiver language contained in the 2014 case.
{¶ 5} Kurth timely appealed both entries and assigns the following errors for our
review.
1. The trial court erred when it ordered Appellant to pay restitution
in the 2014 case.
2. The trial court erred by ordering Appellant to pay costs for
confinement and assigned counsel fees in the 2015 case.
3. The trial court abused its discretion in sentencing Appellant to the
maximum prison term in the 2015 case.
II. Law and Analysis
{¶ 6} In his first assignment of error, Kurth argues that the trial court erred in
imposing restitution without considering his ability to pay. In his second assignment of
error, he argues that the trial court erred in imposing the costs of confinement and counsel
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fees. And in his third assignment of error, he argues that the trial court erred in imposing
the maximum prison sentence in the 2015 case.
A. Restitution
{¶ 7} Kurth makes two arguments concerning the trial court’s imposition of
restitution. First, he argues that the trial court neglected to consider his ability to pay.
Second, he argues that because restitution may be imposed only for the conduct for which
a defendant was convicted, it was improper to impose restitution to Brent Industries in
the 2014 case.
{¶ 8} The state argues that Kurth may not properly challenge the restitution order
because Kurth agreed to an order of restitution as part of his plea agreement. It explains
that this agreement was placed on the record and was included in the plea form, and that
Kurth was specifically asked if he challenged the restitution order, and he responded that
he did not. The state also explains that the trial court made a clerical error in placing the
restitution order to Brent Industries in the judgment entry in the 2014 case instead of
placing it in the entry in the 2015 case. It maintains that this error may be corrected by
the trial court without a further hearing. We agree with the state.
{¶ 9} Under R.C. 2929.18(A)(1), the court may impose “[r]estitution by the
offender to the victim of the offender’s crime or any survivor of the victim, in an amount
based on the victim’s economic loss. * * * If the court decides to impose restitution, the
court shall hold a hearing on restitution if the offender, victim, or survivor disputes the
amount.” The court “may hold a hearing if necessary to determine whether the offender
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is able to pay the sanction or is likely in the future to be able to pay it.” R.C. 2929.18(E).
We have held, however, that a court does not err in imposing restitution where the
offender agrees to make restitution as part of a plea agreement and stipulates to the
amount of that restitution. State v. Farless, 6th Dist. Lucas Nos. L-15-1060, 1061, 2016-
Ohio-1571, ¶ 8. That is what happened here.
{¶ 10} The plea form signed by Kurth indicates that restitution may be imposed.
Before Kurth entered his plea, the state indicated on the record that “there is a restitution
amount on the breaking and entering, it is $186 dollars I do believe, to be paid to Brent
Industries. As to the other burglary, there is restitution, but we would just have that
determined through probation.” Kurth entered his pleas knowing this. At sentencing, the
court began by stating, “Restitution, I have $2,914.19 for [B.T.], $186 dollars to Brent
Industries; do you challenge that?” Defense counsel responded on Kurth’s behalf, “No,
sir.” No additional inquiry as to the amount of restitution or Kurth’s ability to pay was
required.
{¶ 11} We do find, however, that the restitution owed to Brent Industries should
have been reflected in the judgment entry for the 2015 case—not the 2014 case. As the
state suggests, this can be accomplished by a nunc pro tunc entry without the need for an
additional hearing.
{¶ 12} We, therefore, find Kurth’s first assignment of error not well-taken insofar
as he challenges the imposition of restitution, in general. We do, however, remand the
case to the trial court for a nunc pro tunc entry correcting its error in placing the
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restitution to Brent Industries in the judgment entry in the 2014 case instead of in the
judgment entry for the 2015 case.
B. Costs of Confinement and Counsel Fees
{¶ 13} In his second assignment of error, Kurth argues that the trial court erred in
imposing the costs of confinement and assigned counsel fees in the 2015 case. The state
agrees with Kurth that the trial court waived these fees and costs, and contends that the
judgment entry in the 2015 case can be corrected by the trial court in a nunc pro tunc
order.
{¶ 14} It is clear from the transcript of the sentencing hearing that the court
intended to waive these costs and fees and it properly did so in the judgment entry in the
2014 case. We agree that this can be corrected by the trial court in a nunc pro tunc order.
We, therefore, find Kurth’s second assignment of error well-taken, and we remand the
matter to the trial court for correction of this error in the judgment entry in the 2015 case.
C. Maximum Prison Sentence
{¶ 15} In his third assignment of error, Kurth argues that the trial court abused its
discretion in imposing a maximum sentence in the 2015 case. While he acknowledges
that the sentence is within the applicable range set forth in R.C. 2929.14(A)(5), he
contends that there is no indication in the record that the crime was unusually severe. He
also points out that the trial court recognized that Kurth’s criminal activity resulted from
drug abuse issues.
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{¶ 16} The state counters that Kurth has a history of felony convictions and was
awaiting sentencing for second-degree burglary at the time of sentencing in the 2015
case, thus a prison sentence was warranted. It also observes that the trial court gave
careful and substantial consideration to the appropriate statutory provisions when it
imposed Kurth’s sentence. In doing so, the court took note of the numerous times that
Kurth was incarcerated, and his history of reoffending after being released.
{¶ 17} Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or
otherwise modify a sentence or may vacate the sentence and remand the matter to the
sentencing court for resentencing if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 18} The Supreme Court of Ohio in State v. Kalish, 120 Ohio St. 3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, provided guidance to reviewing courts in determining
whether a sentence is contrary to law. State v. Tammerine, 6th Dist. Lucas No.
L-13-1081, 2014-Ohio-425, ¶ 15. In Kalish, the court determined that the sentence at
issue was not contrary to law where the trial court considered the R.C. 2929.11 purposes
and principles of sentencing, considered the R.C. 2929.12 seriousness and recidivism
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factors, properly applied postrelease control, and imposed a sentence within the statutory
range. Id.
{¶ 19} Here, the court properly considered R.C. 2929.13(B); the remaining
statutory provisions referenced in R.C. 2953.08(G)(2)(a) are not at issue. R.C.
2929.13(B)(1)(a) provides that community control shall be imposed if all of the following
apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation
and correction pursuant to division (B)(1)(c) of this section, the department,
within the forty-five-day period specified in that division, provided the
court with the names of, contact information for, and program details of one
or more community control sanctions of at least one year's duration that are
available for persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded
guilty to a misdemeanor offense of violence that the offender committed
within two years prior to the offense for which sentence is being imposed.
{¶ 20} Subsections (i) and (ii) are not met, thus community control was not
required. In addition, under R.C. 2929.13(B)(1)(b)(x) and (xi), the trial court has
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discretion to impose a prison sentence for a fourth or fifth-degree felony if, among other
things, “[t]he offender at the time of the offense was serving, or the offender previously
had served, a prison term,” or “[t]he offender committed the offense while under a
community control sanction, while on probation, or while released from custody on a
bond or personal recognizance.” Both of these subsections were applicable to Kurth.
{¶ 21} Turning to R.C. 2953.08(G)(2)(b), the trial court imposed a sentence within
the statutory range, explicitly considered R.C. 2929.11 and 2929.12, and properly
imposed postrelease control. Before imposing Kurth’s sentence, the court explained:
And the issue, [Kurth has] been to the State penitentiary I believe
eight times—not eight—he’s been convicted eight times, been to the
penitentiary several times, and actually started the first time back in 1996
for a B and E, and the probation was revoked and sent to prison; ’99, failure
to comply, felony four; and receiving stolen property, felony four, sent to
ODRC; 2001, failure to comply, felony three, ODRC; 2005, aggravated
assault, felony four; and failure to comply, felony three, ODRC.
And each time he gets out, he starts doing the same thing that leads
him to prison the last time. I don’t know as we stand here today that he’s
ready for the change that’s necessary to become—I almost used the term
productive citizen.
{¶ 22} We find that the trial court carefully considered Kurth’s sentence and
examined all required factors. It provided a well-reasoned explanation for the sentence it
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imposed. We find no error in its decision to impose the maximum prison term in the
2015 case, and we observe that the court declined to impose consecutive sentences
despite recognizing that it had the discretion to do so.
{¶ 23} We find Kurth’s third assignment of error not well-taken.
III. Conclusion
{¶ 24} We find Kurth’s third assignment of error not well-taken. With respect to
his first assignment of error, we find it not well-taken insofar as the trial court properly
imposed restitution, but we remand the matter to the trial court so that it can correct the
judgment entries to omit reference to restitution to Brent Industries in the judgment entry
in the 2014 case, and include it instead in the judgment entry in the 2015 case.
Concerning Kurth’s second assignment of error, we find Kurth’s assignment of error
well-taken and we remand the matter to the trial court so that it can correct the judgment
entry in the 2015 case to make clear that costs of confinement and assigned counsel fees
were waived as orally announced at the sentencing hearing. Kurth and the state shall
share in the costs of this appeal under 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.
10.
State v. Kurth
C.A. Nos. L-15-1238
L-15-1239
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
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