State v. Dwyer

[Cite as State v. Dwyer, 2022-Ohio-490.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-16
:
v. : Trial Court Case No. 2020-CR-831
:
JAMES A. DWYER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 18th day of February, 2022.
...........
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road,
Fairborn, Ohio 45324
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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Defendant-appellant James A. Dwyer appeals from his conviction for
attempted murder, aggravated robbery, and felonious assault. Dwyer contends the
State failed to present evidence sufficient to support the conviction for attempted murder.
He also claims all three convictions were against the manifest weight of the evidence.
Finally, Dwyer contends the trial court erred in sentencing. For the reasons set forth
below, the judgment of the trial court is affirmed in part, reversed in part, and remanded
for further proceedings consistent with this opinion.
I. Facts and Procedural History
On December 23, 2020, Dwyer was indicted on one count of attempted
felony murder in violation of R.C. 2923.02(A) and R.C. 2903.02(B); one count of
attempted murder in violation of R.C. 2923.02(A) and R.C. 2903.02(A); one count of
aggravated robbery (deadly weapon) in violation of R.C. 2911.01(A)(1); one count of
felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2); and one count of
having a weapon while under disability in violation of R.C. 2923.13(A)(2). All of the
counts except for having a weapon under disability included a three-year firearm
specification.
Prior to trial, the trial court dismissed the counts of attempted felony murder
and having a weapon while under disability. The matter proceeded to a jury trial on the
remaining counts, where the following evidence was adduced.
Both Dwyer and Tyree Day were romantically involved with a woman named
Shayla Webb. On December 16, 2020, Day was with Webb at her Fairborn apartment.
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At some point, Dwyer came to the apartment, and his presence resulted in a physical
altercation between Dwyer and Day. After the fight stopped, Dwyer left.
Day remained at Webb’s apartment overnight. At approximately 6:30 a.m.
on December 17, Day exited the bathroom and encountered Dwyer, who had returned to
the apartment. 1 Dwyer brandished a handgun and ordered Day to accompany him
toward the apartment door. As Dwyer opened the door, Day shoved him and ran out of
the apartment building. Day ran across the street toward an apartment building located
several buildings away from Webb’s residence. As he got to the back of that building,
he lost his shoe, tripped, and fell to the ground. At this point, Dwyer caught up to Day.
While Day remained on the ground, Dwyer pointed the gun at Day’s head
and pulled the trigger two times. Day testified that the gun “clicked” but did not fire. Tr.
p. 38. Dwyer then ordered Day to give him Day’s shoes, belt and jacket. After the items
were handed over, Dwyer shot Day in the leg and ran away.
Fairborn Police Officer Joseph Walton was dispatched to Webb’s apartment
building following multiple calls regarding a disturbance and a man with a weapon.
During his conversation with Webb, Walton issued a description of the perpetrator.
Fairborn Police Officer Matthew Bracey was en route to the scene when he
heard Walton’s description of the perpetrator. When Bracey arrived at an intersection
several buildings away from Webb’s apartment, he pulled his car over to the side of the
road and stopped in order to begin searching for the suspect. A man, later identified as
Day, appeared and knocked on the passenger-side window of Bracey’s cruiser. When
1
During his police interview, Dwyer stated he returned to the apartment at Webb’s
request.
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Bracey rolled down the window, Day informed him of the shooting. As Day was talking,
he pointed and stated, “that’s the guy who shot me.” Tr. p. 85. Bracey then observed
a man, later identified as Dwyer, at the apartment building located behind the apartment
building where Day had been shot. Bracey observed that Dwyer started walking toward
Webb’s apartment. Bracey exited his cruiser and ordered Dwyer to stop. However,
Dwyer merely looked at Bracey and continued to walk away from him. Dwyer
approached Walton, who was still in the process of interviewing Webb. As Dwyer
neared, Webb pointed behind Walton and identified Dwyer as the shooter. Dwyer was
then detained without incident.
No weapon was found on Dwyer when he was detained, and a search of the
area did not produce a gun. However, the items of clothing taken from Day were located
at the spot where Bracey had originally observed Dwyer. Day was transported to a local
hospital for treatment of the gunshot wound to his leg.
Dwyer was transported to the police department, where he was interviewed
by Sergeant James Hern and Detective Sean Pettit. Dwyer stated that he had been at
Webb’s apartment at her request. Dwyer further stated that he took Webb and a female
friend of Webb’s to a nearby gas station; when they returned to Webb’s apartment, Dwyer
and Day argued. Dwyer indicated that Day had had a gun and that Day had chased
Dwyer from the apartment. Dwyer also indicated he had been knocking on the door of
an apartment located in the building where Bracey had originally spotted him. However,
he admitted that he did not know the tenant of that apartment. When asked about Day’s
clothes that had been found near him, Dwyer stated that he had been walking through
the complex grounds when he observed the items on the ground and decided to take
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them. Dwyer indicated that Day must have taken the items off while he was running
away. When confronted with a video of a portion of the interaction inside Webb’s
apartment, Dwyer became upset and ended the interview. 2 The video showed Day
standing inside the apartment with his hands in the air in a “submissive posture.” Tr. p.
177.
The jury convicted Dwyer on the three counts presented by the State and
the three firearm specifications. The trial court imposed an indefinite minimum prison
term of 10 years with a maximum prison term of 15 years for the attempted murder
conviction; a minimum and maximum prison term of eight years for the aggravated
robbery conviction, and a minimum and maximum prison term of six years for the
felonious assault conviction. All three terms were ordered to run consecutively, for a
minimum prison term of 24 years and a maximum prison term of 29 years. The trial court
also imposed three-year prison sentences for each of the firearm specifications to be run
consecutively and prior to the sentence of 24 to 29 years, for an aggregate prison term of
33 to 38 years.
Dwyer appeals.
II. Sufficiency of the Evidence
Dwyer’s first assignment of error states as follows:
APPELLANT’S CONVICTION FOR ATTEMPTED MURDER IS BASED
UPON INSUFFICIENT EVIDENCE
2
The video was obtained from Webb’s friend, who had recorded part of the incident with
her cell phone.
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Dwyer asserts that the State did not present sufficient evidence to sustain
his conviction for attempted murder. Dwyer argues that, apart from Day’s testimony,
there was no direct or circumstantial evidence proving that he had a gun or that he tried
to fire it while aiming at Day’s head. Dwyer further argues that the State did not present
evidence demonstrating his purpose regarding the alleged actions.
An appellate court's function in reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. “In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is a question of law.” State
v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt. Jenks at 273.
Dwyer was convicted of attempted murder in violation of R.C. 2903.02(A)
and R.C. 2923.02(A). Murder is proscribed by R.C. 2903.02(A) which provides that “[n]o
person shall purposely cause the death of another[.]” R.C. 2923.02(A) defines “attempt”
as “purposely or knowingly, and when purpose or knowledge is sufficient culpability for
the commission of an offense, * * * engag[ing] in conduct that, if successful, would
constitute or result in the offense.” Relevant here, a person acts with “purpose” when he
or she has the “specific intention to cause a certain result, or * * * to engage in conduct of
[a certain] nature.” R.C. 2901.22(A).
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As set forth above, Day testified that he fled Webb’s apartment and ran
behind a nearby apartment building; he then tripped, lost his shoe, and fell to the ground.
When Dwyer caught up to Day, he stood over Day, pointed the gun at Day’s head and
pulled the trigger a couple of times. Ultimately, after robbing Day, Dwyer used the gun
to shoot Day in the leg.
Dwyer first asserts that the State failed to present legally sufficient evidence
because it did not produce the firearm alleged to have been used during the commission
of the offenses. We disagree. This court has previously noted that the existence of a
firearm “may be inferred from the surrounding facts and circumstances.” (Citations
omitted.) State v. Vann, 2d Dist. Montgomery No. 22818, 2009-Ohio-5308, ¶ 27.
Day testified that Dwyer pointed a gun at him. The jury was free to believe
all, part, or none of Day’s testimony, and it apparently chose to believe this portion of his
testimony. The fact that Day actually suffered a gunshot wound to his leg obviously
bolsters his testimony. Additionally, the record demonstrates that Dwyer had time and
the opportunity to conceal a gun prior to the arrival of the police. The mere fact that the
police were unable to find a gun during their search of the area did not preclude the
conclusion that Dwyer had a gun.
Dwyer next asserts that the State failed to prove he acted purposefully.
Again, we disagree. “[A] defendant's intent may be inferred from all the surrounding facts
and circumstances of the crime.” State v. McRae, 1st Dist. Hamilton No. C-180669,
2020-Ohio-773, ¶ 11, citing State v. Were, 1st Dist. Hamilton No. C-030485, 2005-Ohio-
376, ¶ 180, quoting State v. Herring, 94 Ohio St.3d 246, 266, 762 N.E.2d 940 (2002).
“Particularly relevant here, ‘in an attempted-murder prosecution, a defendant's specific
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intent to kill another can be inferred from the defendant's shooting in the victim's direction’
and is strongly corroborative of criminal purpose.” Id., quoting State v. MacDonald, 1st
Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 17-18 (Other citations omitted.). “This
flows from the fact that a gun is considered a ‘deadly weapon,’ and therefore its discharge
in another's direction supports an inference that the shooter harbored the specific intent
to kill.” McRae at ¶ 11. Day testified that Dwyer pointed the gun at his head and pulled
the trigger two times. The jury was free to credit this testimony in determining whether
Dwyer committed the offense of attempted murder.
Construing the evidence most strongly in favor of the prosecution, a rational
trier of fact could have found beyond a reasonable doubt that Dwyer purposely attempted
to cause Day’s death. Therefore, the first assignment of error is overruled.
III. Manifest Weight of the Evidence
APPELLANT’S CONVICTIONS FOR ATTEMPTED MURDER,
AGGRAVATED ROBBERY, AND FELONIOUS ASSAULT ARE AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE
Dwyer’s argument in support of this assignment of error centers upon his
assertion that Day’s testimony was not credible.
A weight-of-the-evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive. State v. Jones, 2d Dist. Montgomery No. 28179, 2019-Ohio-
2940, ¶ 13, quoting State v. Wilson, 2d Dist. Montgomery No. 2258, 2009-Ohio-525, ¶ 12.
When evaluating whether a conviction is against the manifest weight of the evidence, an
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appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine whether, in resolving conflicts in
the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). But we generally defer to a jury’s
credibility assessments based upon the jury’s ability to observe and assess the witnesses'
demeanor while testifying. State v. Hagen, 2d Dist. Champaign No. 2018-CA-2, 2018-
Ohio-4045, ¶ 21.
In addition to attempted murder, Dwyer was convicted of felonious assault
in violation of R.C. 2903.11(A)(2), which states, “[n]o person shall knowingly * * * [c]ause
or attempt to cause physical harm to another * * * by means of a deadly weapon.” He
was also convicted of aggravated robbery as proscribed by R.C. 2911.01. This statute
provides that the offense is committed when a person “in attempting or committing a theft
offense, * * * or in fleeing immediately after the attempt or offense, * * * inflict[s], or
attempt[s] to inflict, serious physical harm on another.” R.C. 2911.01(A)(3).
Dwyer’s assertion that Day was not credible hinges upon his assertion that
Day was under the influence of marijuana. He also claims that Day’s credibility was
further damaged by the lack of corroborating witnesses, the failure to find the gun, and
the fact that Day’s clothes were not in Dwyer’s possession when Dwyer was
apprehended.
During his testimony, Day stated that he had been robbed and then shot by
Dwyer. Day candidly admitted that he had smoked two marijuana joints on the evening
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of December 16. He also stated that the effects had worn off prior to the 6:30 a.m.
confrontation on December 17. Additionally, the mere facts that no gun was found and
no corroborating witnesses testified did not render Day’s testimony inherently incredible.
The jury was fully capable of determining what weight, if any, to assign to the lack of a
gun or corroborating witnesses. Again, Day did suffer a gunshot wound, and Dwyer had
had the time and the opportunity to conceal the weapon. Additionally, the video footage
from the apartment showed Day with his hands in the air, a fact that the jury could have
viewed as bolstering Day’s claim that Dwyer had a gun. Finally, we fail to discern how
the fact that Dwyer was not holding Day’s clothing at the time of his apprehension affected
Day’s credibility. Although Dwyer claimed that he observed the clothes on the ground
and that Day must have discarded them while running, Dwyer admitted that he had the
clothes in his possession at some point after the two exited the apartment.
From our examination of the record, we cannot say that the jury clearly lost
its way in crediting Day’s testimony. There was evidence presented to the jury upon
which it could have relied in finding Dwyer guilty of all three charges. Therefore, Dwyer’s
second assignment of error is overruled.
IV. Merger Analysis
The third assignment of error presented by Dwyer states:
THE TRIAL COURT ERRED IN NOT MERGING THE OFFENSES OF
ATTEMPTED MURDER AND FELONIOUS ASSAULT
Dwyer contends that the offenses of attempted murder and felonious
assault should have been merged. In support, he asserts that his “actions, if believed,
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were one set of circumstances of continual conduct involving the same alleged victim.”
The need to discern whether crimes are allied offenses arises from the
Double Jeopardy Clause of the Fifth Amendment, which protects individuals from multiple
punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53
L.Ed.2d 187 (1977). The Ohio Legislature has codified this protection in R.C. 2941.25,
which states:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Supreme Court of Ohio clarified the applicable standard to use when determining whether
offenses merge as allied offenses of similar import, as follows:
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis must focus
on the defendant's conduct to determine whether one or more convictions
may result because an offense may be committed in a variety of ways and
the offenses committed may have different import. No bright-line rule can
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govern every situation.
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must
ask three questions when defendant's conduct supports multiple offenses:
(1) Were the offenses dissimilar in import or significance? (2) Were they
committed separately? and (3) Were they committed with separate animus
or motivation? An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import must all be
considered.
Ruff at ¶ 30-31.
The de novo standard of review is utilized with regard to a trial court’s
decision on merger. State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150,
¶ 10.
To establish the elements of attempted murder in this case, the State had
to prove that Dwyer engaged in conduct that, if successful, would have resulted in
purposely causing the death of another. R.C. 2903.02(A); R.C. 2923.02(A). To establish
the elements of felonious assault, the State had to prove that Dwyer knowingly caused
physical harm to another by means of a deadly weapon. R.C. 2903.11(A)(2).
The conduct of pointing and shooting a gun at a person can result in the
death of that person. The same conduct can also fall short of causing death but can
cause physical harm. However, in this case, the convictions for both attempted murder
and felonious assault were proper because they involved separate conduct. The
evidence, primarily consisting of Day’s testimony, reflected that the offense of attempted
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murder occurred when Dwyer pointed the gun at Day’s head while pulling the trigger.
When that was unsuccessful, Dwyer then, with gun in hand, robbed Day of his items of
clothing. Once those items were handed over, Dwyer shot Day in the leg. Thus, the
felonious assault was separated from the attempted murder by the intervening robbery.
Based upon the facts of this case, we cannot say that the trial court erred in
failing to merge the convictions for attempted murder and felonious assault. Accordingly,
the third assignment of error is overruled.
V. Consecutive Sentences
The fourth assignment of error states as follows:
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES
Dwyer challenges the trial court’s imposition of consecutive sentences.
Specifically, he asserts the trial court did not engage in the correct statutory analysis for
the imposition of consecutive sentences. He further asserts that the record does not
support consecutive sentences.
When reviewing felony sentences, appellate courts apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
only if it clearly and convincingly finds either: (1) the record does not support the
sentencing court's findings under certain statutes (including R.C. 2929.14(C)(4), which
concerns the imposition of consecutive sentences); or (2) the sentence is otherwise
contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).
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R.C. 2929.14(C)(4) allows a trial court to impose consecutive sentences if
it finds that (1) consecutive service is 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 the offender poses to the public;
and (3) one or more of the following three findings are satisfied:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed 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 reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
R.C. 2929.14(C)(4)(a)-(c).
“[A] trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry[.]” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
“[W]here a trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an
appellate court may not reverse the trial court's imposition of consecutive sentences
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unless it first clearly and convincingly finds that the record does not support the trial court's
findings.” State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.).
A review of the record demonstrates that the trial court made the required
statutorily consecutive-sentence findings at the sentencing hearing and incorporated
those findings into the judgment entry, including the factors set forth in R.C.
2929.14(C)(4)(b). The court cited Dwyer’s “cold, calculated manner” and “callous
indifference” in committing the offenses. Specifically, the court noted that Dwyer
returned to Webb’s apartment, with a gun, following the initial confrontation with Day.
Dwyer brandished the gun in order to force Day to leave the apartment with him. The
court noted that, instead of letting Day go when he ran out of the apartment, Dwyer
chased him into the street. Once he found Day on the ground, Dwyer stood over him
with the gun and tried to fire while aiming at Day’s head. He then took possession of
Day’s shoes, belt and jacket before shooting him in the leg. Because the foregoing
consecutive-sentencing findings were not clearly and convincingly unsupported by the
record, the trial court's decision to impose consecutive sentences is not subject to reversal
by this court.
Dwyer also suggests that the trial court erred because it did not consider
R.C. 2929.11 and R.C. 2929.12 in determining whether to impose consecutive sentences.
However, in State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, the
Supreme Court of Ohio explained that R.C. 2929.11 and 2929.12 “both clearly apply only
to individual sentences[,]” and “[c]onsecutive service may not be ordered under R.C.
2929.14(C)(4) until the sentencing judge imposes * * * a sentence for each count by
considering the purposes and principles of felony sentencing under R.C. 2929.11 and
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R.C. 2929.12.” Id. at ¶ 17. Thus, the Court concluded that consecutive sentences
should be analyzed for compliance with R.C. 2929.14(C)(4), not R.C. 2929.11 or R.C.
2929.12. Id. at ¶ 18. Therefore, we find no error in this regard.
The fourth assignment of error is overruled.
VI. Third Firearm Specification
Dwyer’s fifth assignment of error states:
THE TRIAL COURT ERRED IN SENTENCING APPELLANT FOR A THIRD
THREE YEAR FIREARM SPECIFICATION
Dwyer asserts the trial court erroneously imposed a prison term for the
firearm specification accompanying the felonious assault conviction.
Although a trial court ordinarily may impose only one additional three-year
prison term for multiple firearm specifications committed as part of the same act or
transaction (see R.C. 2929.14(B)(1)(b)), an exception is created by R.C.
2929.14(B)(1)(g), which provides:
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court shall
impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the
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offender is convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term specified under
that division for any or all of the remaining specifications.
Here, Dwyer was convicted of attempted murder, aggravated robbery, and
felonious assault and, as to each count, he was also convicted of a three-year firearm
specification of the type described under R.C. 2929.14(B)(1)(a). Therefore, the trial court
was required to impose the three-year prison term specified under R.C. 2929.14(B)(1)(a)
“for each of the two most serious specifications” of which Dwyer was convicted. In short,
R.C. 2929.14(B)(1)(a) obligated the trial court to impose separate prison terms for the
three-year firearm specifications accompanying the attempted murder and aggravated
robbery convictions. Additionally, the court had the discretion to impose a prison term
for the three-year firearm specification accompanying the felonious assault conviction.
A review of the sentencing hearing transcript reveals that the trial court
referred to the prison term imposed for the firearm specification accompanying the
felonious assault conviction as “an additional mandatory term of 3 years mandatory
incarceration * * *.” Tr. p. 276. Likewise, the court’s sentencing entry refers to the
prison term for the third firearm specification as “an additional MANDATORY term of 3
years actual incarceration.”
Under R.C. 2929.14(B)(1)(g), the trial court had discretion to sentence
appellant to a three-year prison term on the third firearm specification. However, the
court could not have been exercising its discretion if it believed, as it articulated both at
the sentencing hearing and in its judgment entry, that the sentence was “mandatory.”
State v. Bradford, 8th Dist. Cuyahoga No. 105217, 2017-Ohio-8481, ¶ 40.
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Because the trial court concluded, contrary to R.C. 2929.14(B)(1)(g), that
imposition of a three-year prison term on the third firearm specification was mandatory,
the trial court erred by failing to exercise its discretion, thereby rendering that portion of
Dwyer’s sentence contrary to law. The fifth assignment of error is sustained.
VII. Imposition of $10,000 Fine
Dwyer’s sixth assignment of error states:
THE TRIAL COURT ERRED IN IMPOSING A FINE OF $10,000.00
Dwyer challenges the $10,000 fine imposed by the trial court. In support,
he claims that the trial court did not consider his ability to pay the fine. Dwyer further
asserts that the record demonstrates that he was indigent during the trial proceedings, as
the public defender was appointed to represent him.
Before a court may impose a financial sanction, it is required to consider the
defendant's present and future ability to pay. R.C. 2929.19(B)(5). There are no specific
factors the trial court must consider in its analysis, nor must it make any specific findings.
State v. Freeman, 1st Dist. Hamilton No. C-180090, 2018-Ohio-4973, ¶ 10; State v. Percy,
8th Dist. Cuyahoga No. 109502, 2021-Ohio-1876, ¶ 19. “The record should, however,
contain ‘evidence that the trial court considered the offender's present and future ability
to pay before imposing [a financial sanction.]’ ” State v. Culver, 160 Ohio App.3d 172,
2005-Ohio-1359, 826 N.E.2d 367, ¶ 57 (2d Dist.), quoting State v. Robinson, 3d Dist.
Hancock No. 5-04-12, 2004-Ohio-5346, ¶ 17. “As long as the record contains some
indication that the court considered the offender's present and future ability to pay, the
court's imposition of a financial sanction is not contrary to law.” State v. McCants, 1st
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Dist. Hamilton No. C-190143, 2020-Ohio-3441, ¶ 12. In reviewing a trial court's
imposition of a financial sanction, we apply the standard set forth in R.C.
2953.08(G)(2)(b), inquiring whether the imposition of the financial sanction is clearly and
convincingly contrary to law. State v. Dean, 2018-Ohio-1317, 110 N.E.3d 739, ¶ 72 (2d
Dist.); McCants at ¶ 10.
We begin with the claim that Dwyer’s indigency prevented a finding of an
ability to pay the fine. The Tenth District Court of Appeals has addressed this issue,
stating: “[a]n offender's indigency for purposes of receiving appointed counsel is separate
and distinct from his or her indigency for purposes of avoiding having to pay a mandatory
fine.” State v. Delgadillo-Banuelos, 10th Dist. Franklin No. 18AP-729, 2019-Ohio-4174,
¶ 27, quoting State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, 922 N.E.2d 248,
¶ 79 (10th Dist.), citing State v. Gipson, 80 Ohio St.3d 626, 631-33, 687 N.E.2d 750(1998). The court went on to state: “there is a ‘difference between a defendant's inability
to raise an initial retainer in order to obtain trial counsel and the ability to gradually pay an
imposed mandatory fine over a period of time.’ ” Id., citing State v. Burnett, 10th Dist.
Franklin No. 08AP-304, 2008-Ohio-5224, ¶ 9, quoting State v. Banks, 6th Dist. Wood No.
WD-06-094, 2007-Ohio-5311, ¶ 15. Thus, the court concluded an affidavit of indigency
for the purpose of receiving appointed counsel cannot be used to demonstrate indigency
for the purpose of avoiding payment of a fine after conviction. Id.We next address the issue of whether the trial court properly considered
Dwyer’s ability to pay the fines. There is no question the court was authorized to impose
a fine. Further, the amount of the fine was well within the range of financial sanctions
permitted by R.C. 2929.18(A)(3). Additionally, the trial court explicitly stated it had
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considered Dwyer’s present and future ability to pay, but it made no findings regarding
this issue.3 We note that Dwyer did not object to the fine or request an opportunity to
demonstrate his inability to pay a financial sanction.
Although no PSI was ordered in this case and no financial information was
introduced, there was information regarding Dwyer’s ability to pay set forth within his own
sentencing memorandum. In his memorandum, Dwyer stated that he was gainfully
employed at the time of the offenses and that he was capable of working. At the time of
sentencing, Dwyer was 22 years old, and he will be at least 56 when he is released.
We have held that when the record contains some evidence that a
defendant was previously employed, is young, and is in good health, he may be
considered employable when he is released from prison, even if the prison term is lengthy.
State v. Dean, 2018-Ohio-1317, 110 N.E.3d 739, ¶ 76-78 (2d Dist.).
On this record, we cannot conclude that the trial court’s decision was clearly
and convincingly contrary to law. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, at ¶ 23. Accordingly, the sixth assignment of error is overruled.
VIII. Conclusion
Since Dwyer’s fifth assignment of error is sustained, the portion of the
judgment imposing of a prison term for the firearm specification accompanying the
felonious assault conviction is reversed, and the matter is remanded to the trial court for
3 “A trial court's statement in a judgment entry that it considered the offender's present
and future ability to pay a fine is evidence that the trial court considered the offender's
ability to pay.” Delgadillo-Banuelos, 10th Dist. Franklin No. 18AP-729, 2019-Ohio-4174,
at ¶ 35.
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the sole purpose of resentencing Dwyer regarding the firearm specification attached to
the felonious assault count. The judgment of the trial court is affirmed in all other
respects.
.............
WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Marcy A. Vonderwell
David R. Miles
Hon. Michael A. Buckwalter