State v. Hacker

[Cite as State v. Hacker, 2020-Ohio-5048.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-20-01
v.
CHRISTOPHER P. HACKER, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 19 06 0192
Judgment Affirmed
Date of Decision: October 26, 2020
APPEARANCES:
Marc S. Triplett for Appellant
Eric C. Steward for Appellee
Case No. 8-20-01
ZIMMERMAN, J.
{¶1} Defendant-appellant, Christopher P. Hacker (“Hacker”), appeals the
January 28, 2020 judgment entry of sentence of the Logan County Court of
Common Pleas. We affirm.
{¶2} This case stems from Hacker’s trespass into the victim’s home (while
the victim and Hacker’s wife were present), and Hacker’s threats toward the victim
while brandishing a deadly weapon. (Doc. No. 18).
{¶3} On June 11, 2019, the Logan County Grand Jury indicted Hacker on the
following criminal charges: Count One of aggravated burglary in violation of R.C.
2911.11(A), (B), a first-degree felony with a three-year firearm specification under
R.C. 2941.145(A); Count Two also for aggravated burglary in violation of R.C.
2911.11(A)(2), (B), a first-degree felony with a three-year firearm specification
under R.C. 2941.145(A); and Count Three of aggravated menacing in violation of
R.C. 2903.21(A), (B), a first-degree misdemeanor. (Doc. No. 1).
{¶4} Hacker appeared for arraignment on June 14, 2019 and entered pleas of
not guilty. (Doc. No. 13). However, on December 20, 2019, Hacker withdrew his
pleas of not guilty and entered guilty pleas under a negotiated plea agreement. (Doc.
No. 54). In exchange for his guilty pleas to Count One and the firearm specification
(amended from a three-year to a one-year specification under R.C. 2941.141(A)),
the State agreed to dismiss Counts Two and Three. (Id.); (Dec. 20, 2019 Tr. at 3-5,
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20-22). The trial court conducted a Crim.R. 11 colloquy, accepted Hacker’s guilty
plea, and ordered a presentence investigation report (“PSI”) be prepared. (Id.); (Id.
at 6-22). Important to appellant’s appeal, prior to his sentencing hearing, Hacker
filed an objection to the imposition of indefinite-sentencing provisions under the
Reagan Tokes Law, Am.Sub.S.B. 201, 2018 Ohio Laws 157 (“S.B. 201”). (Doc.
No. 51).
{¶5} On January 27, 2020, the trial court sentenced Hacker to serve an
indefinite prison term with a minimum prison term of six years and a maximum
prison term of nine years under Count One and a mandatory definite prison term of
one year under the firearm specification.1 (Doc. No. 60). The indefinite prison term
under Count One was ordered to be served consecutively to the mandatory definite
prison term under the firearm specification.2 (Id.). Then, the trial court imposed a
$10,000 fine and ordered Hacker to pay court costs, the costs of prosecution, and
fees under R.C. 2929.18. (Id.).
{¶6} On February 7, 2020, Hacker filed a notice of appeal. (Doc. No. 77).
He raises three assignments of error for our review, which we will address together.
1
Hacker’s gun specification could not be used to increase the maximum prison term as to Count One. See
R.C. 2929.144(B)(4). R.C. 2929.144 is silent as to the impact of his gun specification on the minimum prison
term as to Count One. The trial court in this instance was required to impose the gun specification (a
mandatory definite prison term) separately, and to order it to be served prior to and consecutive to the stated
minimum term as to Count One. See R.C. 2929.14(C)(1)(a).
2
Hacker was given 11 days’ jail-time credit. (Doc. No. 60).
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Assignment of Error I
The Trial Court Erred When It Did Not Sustain Mr. Hacker’s
Objections to the Sentencing Provisions Contained in R.C.
2967.271 [sic] (1.27.20. Tr. 25).
Assignment of Error II
As Amended By The Reagan Tokes Act, The Revised Code’s
Sentences For First and Second Degree Qualifying Felonies
Violate The United States And Ohio Constitutions. (1.27.20. Tr.
25).
Assignment of Error III
The Trial Court Erred When It Imposed a Fine of Ten Thousand
Dollars (1.27.20, [sic] Tr. 27).
{¶7} In his first and second assignment of error, Hacker asserts that the trial
court erred in sentencing him under the Reagan Tokes Law because it violates his
rights to a trial by jury and due process of law, and the constitutional requirement
of separation of powers rendering his sentence contrary to law. In his third
assignment of error, Hacker argues that the trial court erred when it failed to
consider Hacker’s ability to pay the financial sanction imposed under R.C.
2929.19(B)(5), which is also contrary to law.3
Standard of Review
{¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
3
While Hacker references R.C. 2929.18(B)(5) throughout his brief, it is apparent the ultimate question he is
seeking to answer directs us to R.C. 2929.19(B)(5).
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support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Reagan Tokes Law
{¶9} The Reagan Tokes Law, enacted in 2018 and effective on March 22,
2019, “‘significantly altered the sentencing structure for many of Ohio’s most
serious felonies’ by implementing an indefinite sentencing system for those non-life
felonies of the first and second degree, committed on or after the effective date.”
State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1,
quoting The Ohio Criminal Sentencing Commission, SB 201-The Reagan Tokes
Law Indefinite Sentencing Quick Reference Guide, July 2019 and citing R.C.
2929.144(A). Under the Reagan Tokes “[L]aw, qualifying first- and second-degree
felonies committed on or after March 22, 2019 are now subject to the imposition of
indefinite sentences.” State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-
4150, ¶ 28. These indefinite prison terms will consist of a stated minimum prison
term selected by the trial court from a range of prison terms set forth in R.C.
2929.14(A) and a maximum prison term for qualifying first- and second-degree
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felonies as determined by the trial court from formulas set forth in R.C. 2929.144.
Id.
{¶10} Moreover, the Reagan Tokes Law establishes a presumptive-release
date at the end of the offender’s minimum prison term imposed. R.C. 2967.271(B).
Nevertheless, the Ohio Department of Rehabilitation and Correction (“ODRC”)
may rebut that presumption and keep the offender in prison for an additional period
not to exceed the maximum prison term imposed by the trial court. R.C.
2967.271(C). In order to rebut the presumption, ODRC must conduct a hearing and
determine whether one or more of the following factors are applicable:
(1) Regardless of the security level in which the offender is
classified at the time of the hearing, both of the following apply:
(a) During the offender’s incarceration, the offender committed
institutional rule infractions that involved compromising the security
of a state correctional institution, compromising the safety of the staff
of a state correctional institution or its inmates, or physical harm or
the threat of physical harm to the staff of a state correctional institution
or its inmates, or committed a violation of law that was not prosecuted,
and the infractions or violations demonstrate that the offender has not
been rehabilitated.
(b) The offender’s behavior while incarcerated, including, but not
limited to the infractions and violations specified in division (C)(1)(a)
of this section, demonstrate that the offender continues to pose a threat
to society.
(2) Regardless of the security level in which the offender is
classified at the time of the hearing, the offender has been placed by
the department in extended restrictive housing at any time within the
year preceding the date of the hearing.
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(3) At the time of the hearing, the offender is classified by the
department as a security level three, four, or five, or at a higher
security level.
R.C. 2967.271(C)(1), (2), and (3).
Constitutionality Analysis
{¶11} Hacker argues that the presumptive-release provisions of R.C.
2967.271 violates his right to a trial by jury and due process of law, and further
violates the constitutional requirement of separation of powers. Put more plainly—
Hacker argues R.C. 2967.271 is unconstitutional on its face.
{¶12} We review the determination of a statute’s constitutionality de novo.
State v. Hudson, 3d Dist. Marion, 2013-Ohio-647, ¶ 27, citing Akron v. Callaway,
9th Dist. Summit No. 22018, 2005-Ohio-4095, ¶ 23 and Andreyko v. Cincinnati, 1st
Dist. Hamilton No. C-020606, 2003-Ohio-2759, ¶ 11. “De novo review is
independent, without deference to the lower court’s decision.” Id., citing Ohio Bell
Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St. 3d 145, 147 (1992).
{¶13} “‘It is difficult to prove that a statute is unconstitutional.’” State v.
Stoffer, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v.
Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948, ¶ 25. “‘All statutes have
a strong presumption of constitutionality. * * * Before a court may declare
unconstitutional an enactment of the legislative branch, “it must appear beyond a
reasonable doubt that the legislation and constitutional provisions are clearly
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incompatible.”’” Id., quoting Arbino at ¶ 25, quoting State ex rel. Dickman v.
Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. “[I]f at all
possible, statutes must be construed in conformity with the Ohio and United States
Constitutions.” State v. Collier, 62 Ohio St. 3d 267, 269 (1991), citing State v.
Tanner, 15 Ohio St. 3d 1 (1984) and R.C. 1.47.
{¶14} “A statute may be challenged as unconstitutional on the basis that it is
invalid on its face or as applied to a particular set of facts.” State v. Lowe, 112 Ohio
St.3d 507, 2007-Ohio-606, ¶ 17. The distinction between the two types of
constitutional challenges is important because the standard of proof is different for
the two types of challenges. Wymsylo v. Bartec, Inc., 132 Ohio St. 3d 167, 2012-
Ohio-2187, ¶ 20. “To prevail on a facial constitutional challenge, the challenger
must prove the constitutional defect, using the highest standard of proof, which is
also used in criminal cases, proof beyond a reasonable doubt.” State ex rel. Ohio
Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St. 3d 568, 2006-
Ohio-5512, ¶ 21, citing State ex rel. Dickman at paragraph one of the syllabus.
Conversely, “[t]o prevail on a constitutional challenge to the statute as applied, the
challenger must present clear and convincing evidence of the statute’s constitutional
defect.” Id., citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329 (1944),
paragraph six of the syllabus.
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{¶15} “A facial challenge alleges that a statute, ordinance, or administrative
rule, on its face and under all circumstances, has no rational relationship to a
legitimate governmental purpose.” Wymsylo at ¶ 21, citing Jaylin Invest., Inc. v.
Moreland, 107 Ohio St. 3d 339, 2006-Ohio-4, ¶ 11. “Facial challenges to the
constitutionality of a statute are the most difficult to mount successfully, since the
challenger must establish that no set of circumstances exists under which the act
would be valid.” Id., citing United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct.
2095 (1987). “If a statute is unconstitutional on its face, the statute may not be
enforced under any circumstances.” Id. “When determining whether a law is
facially invalid, a court must be careful not to exceed the statute’s actual language
and speculate about hypothetical or imaginary cases.” Id., citing Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S. Ct. 1184
(2008).
{¶16} “In an as-applied challenge, the challenger ‘contends that application
of the statute in the particular context in which he has acted, or in which he proposes
to act, [is] unconstitutional.’” Lowe at ¶ 17, quoting Ada v. Guam Soc. of
Obstetricians & Gynecologists, 506 U.S. 1011, 113 S. Ct. 633 (1992) (Scalia, J.,
dissenting). The practical impact of holding that a statute is unconstitutional as
applied to the challenger is to prevent its future application in a similar context,
“‘but not to render it utterly inoperative.’” Yajnik v. Akron Dept. of Health, Hous.
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Div., 101 Ohio St. 3d 106, 2004-Ohio-357, ¶ 14, quoting Ada, 506 U.S. at 1011, 113
S.Ct. at 633 (Scalia, J. dissenting). “[W]here statutes are challenged on the ground
that they are unconstitutional as applied to a particular set of facts, the party making
the challenge bears the burden of presenting clear and convincing evidence of a
presently existing set of facts that make the statutes unconstitutional and void when
applied to those facts.” Harrold v. Collier, 107 Ohio St. 3d 44, 2005-Ohio-5334, ¶
38 (2005), citing Beldon, 143 Ohio St. 329, at paragraph six of the syllabus.
{¶17} We begin by addressing Hacker’s argument that the presumptive-
release provisions of R.C. 2967.271 violates his right to a trial by jury in that it
permits ODRC (and not the jury) to engage in fact-finding increasing the offender’s
minimum prison term, a right protected by the Sixth Amendment of the United
States Constitution applicable to the states through the due process clause of the
Fourteenth Amendment of the United States Constitution and also guaranteed by
Article I, Section 5 of the Constitution of the State of Ohio. “The question of
constitutionality of a statute must generally be raised at the first opportunity and, in
a criminal prosecution this means in the trial court.” State v. Awan, 22 Ohio St. 3d
120, 122 (1986), limited by, In re M.D., 38 Ohio St. 3d 149 (1988), syllabus, citing
State v. Woodards, 6 Ohio St. 2d 14 (1966). If a party fails to object to a
constitutional issue at trial, an appellate court need not consider the objection for
the first time on appeal. Id., paragraph one of the syllabus. Importantly, a review
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of the record reveals Hacker did not raise this argument before the trial court and
now raises this argument for the first time on appeal. We conclude that Hacker
has waived this argument, and therefore we decline to address it.4 See State v. Pritt,
3d Dist. Seneca No. 13-14-39, 2015-Ohio-2209, ¶ 15, citing State v. Bagley, 3d Dist.
Allen No. 1-13-31, 2014-Ohio-1787, ¶ 71, citing State v. Rowland, 3d Dist. Hancock
No. 5-01-28, 2002-Ohio-1417, 2002 WL 479163, *1 (Mar. 29, 2002). See also
Barnes, 2020-Ohio-4150, at ¶ 37.
{¶18} Next we turn to Hacker’s assertions that the Reagan Tokes Law
violates due process and the doctrine of separation of powers. First, Hacker argues
that the Reagan Tokes Law does not provide him adequate notice of the conduct
that triggers ODRC to maintain the offender’s incarceration after the expiration of
the offender’s minimum prison term and it does not provide a structure as to the
hearing to rebut the presumption established under division (B). Secondly, and as
it relates to the separation-of-powers doctrine, Hacker argues that Reagan Tokes
Law is unconstitutional because it permits ODRC (rather than the trial court) to
make factual determinations as to whether the offender is eligible for a reduction of
the offender’s minimum prison term (his presumptive-release date) or to maintain
4
“Waiver is the intentional relinquishment or abandonment of a right, and waiver of a right ‘cannot form the
basis of any claimed error under Crim.R. 52(B).’” State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, ¶
23 quoting State v. McKee, 91 Ohio St. 3d 292, 299, fn. 3, (Cook, J. dissenting) and citing United States v
Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993). Forfeiture, on the other hand, “is a failure to preserve
an objection * * *.” Id., citing Olano at 733. Forfeiture does not extinguish an appellant’s claim “of plain
error under Crim.R. 52(B).” Id., citing McKee at 299, fn. 3.
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the offender’s incarceration after the expiration of the offender’s minimum prison
term for a period not exceeding the offender’s maximum prison term. His
arguments are based on the holdings in State ex rel. Bray v. Russell, 89 Ohio St. 3d
132 (2000) and State v. Oneal, Hamilton C.P. No. 1903 562 (Nov. 20, 2019).
{¶19} In Bray, the Supreme Court of Ohio addressed the constitutionality of
R.C. 2967.11 (which has since been repealed). Bray, 89 Ohio St. 3d at 132; R.C.
2967.11, repealed in A.m.Sub.H.B. No. 130, 2008 Ohio Laws 173. R.C. 2967.11,
stated in pertinent part, that:
[a]s part of a prisoner’s sentence, the parole board may punish a
violation committed by the prisoner by extending the prisoner’s stated
prison term for a period of fifteen, thirty, sixty, or ninety days in
accordance with this section. If a prisoner’s stated term is extended
under this section, the time by which it is so extended shall be referred
to as ‘bad time.’
R.C. 2967.11(B), repealed in A.m.Sub.H.B. No. 130, 2008 Ohio Laws 173. A
“violation” was defined as “an act that is a criminal offense under the law of this
state or the United States, whether or not a person is prosecuted for the commission
of the offense.” R.C. 2967.11(A), repealed in A.m.Sub.H.B. No. 130, 2008 Ohio
Laws 173. Other sections in R.C. 2967.11 articulated the procedures that were
followed to determine whether a “violation” (a crime) had been committed. Bray
at 135.
{¶20} The Court in Bray held, “[i]n short, R.C. 2967.11(C), (D), and (E)
enable[d] the executive branch to prosecute an inmate for a crime, to determine
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whether a crime has been committed, and to impose a sentence for that crime.” Id.
The Court in Bray further held that the statute improperly permitted the executive
branch to act “as judge, prosecutor, and jury * * * [and thereby] intrude[] well
beyond the defined role of the executive branch as set forth in our Constitution.” Id.
Consequently, the Court in Bray concluded the statute unconstitutional because it
violated the doctrine of separation of powers. Id. at 136.
{¶21} The trial court in Oneal (relying on Bray) concluded the Reagan Tokes
Law is unconstitutional because it surrenders judicial powers to the executive
branch. The trial court noted, “[t]he conditions that the [O]DRC may consider in
determining whether an offender should not be released upon the end of [his]
minimum prison term may include a ‘violation of law’” which, like the bad time
statute “is synonymous with a criminal offense.” Oneal, Hamilton C.P. No. 1903
562, at *5. Moreover, Oneal determined that Reagan Tokes Law violates
procedural-due process because it does not provide for a judicial hearing prior to the
extension of a prison term beyond the minimum term. Id. at *6.
{¶22} Here, Hacker’s reliance on Bray and Oneal is flawed because there is
a significant distinction between the imposition of “bad time” (as was permitted
under R.C. 2967.11) and the structure for extension of a prison term beyond the
minimum term under the Reagan Tokes Law. Unlike Bray, the Reagan Tokes Law
does not permit ODRC (the executive branch) to maintain Hacker beyond the
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maximum prison term imposed by the trial court. Therefore, we cannot conclude
that Bray and Oneal lead us to the conclusion that the Reagan Tokes Law violates
the doctrine of separation of powers. Barnes, 2020-Ohio-4150, ¶ 36, (concluding
“that Bray and Oneal do not compel the conclusion that the Reagan Tokes Law
violates the separation of powers doctrine.”)
{¶23} Accordingly, we cannot conclude that Hacker has met his burden in
demonstrating that the Reagan Tokes Law is unconstitutional on its face with proof
beyond a reasonable doubt and thus, we cannot conclude that Hacker’s sentence is
clearly and convincingly contrary to law.
{¶24} Hacker’s first and second assignment of error are overruled.
Financial-Sanction (Fine) Analysis
{¶25} Now, we turn to Hacker’s argument that the trial court failed to
consider his ability to pay the financial sanction imposed. We review the imposition
of a financial sanction under the same standard of review as we would apply toward
any other felony sentence. See State v. McCants, 1st Dist. Hamilton No. C-190143,
2020-Ohio-3441, ¶ 10, citing State v. Owen, 1st Dist. Hamilton No. C-170413,
2018-Ohio-1853, ¶ 5. An appellate court “may modify or vacate a felony sentence
only if we clearly and convincingly find that the record does not support the trial
court’s findings under relevant statutes or that the sentence is otherwise contrary to
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law.” Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, at ¶ 1, citing R.C.
2953.08(G)(2).
{¶26} As an initial matter, Hacker never objected to the imposition of a
financial sanction (i.e., a fine) by the trial court at his sentencing hearing, which he
now raises for the first time on appeal. (Jan. 27, 2020 Tr. at 27-29); (Doc. No.
85). An appellant’s failure to raise an issue with the trial court constitutes a
forfeiture of that issue absent plain error. State v. Kiser, 3d Dist. Seneca No. 13-16-
25, 2017-Ohio-4222, ¶ 21 (applying the plain-error standard to a case involving a
fine where no discussion or objection to the imposition of the financial sanction was
lodged).
{¶27} Crim.R. 52(B) governs plain error in criminal cases. The Supreme
Court of Ohio has held that “‘the plain error rule is to be invoked only in exceptional
circumstances to avoid a miscarriage of justice.’” State v. Long, 53 Ohio St. 2d 91,
95 (1978), quoting United States. v. Rudinsky, 439 F.2d 1074, 1076 (6th Cir.1971),
citing Eaton v. United States, 398 F.2d 485, 486 (5th Cir.1968). Because Hacker
did not object to the imposition of this financial sanction, we apply the plain-error
rule to the facts before us.
{¶28} Our review is not without limitation. The Supreme Court of Ohio has
previously concluded that there are limitations on an appellate court’s decision to
review and correct an error under Crim.R. 52(B). State v. Barnes, 94 Ohio St. 3d
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21, 27 (2002). “First, there must be an error, i.e., a deviation from a legal rule.”
Id. citing State v. Hill, 92 Ohio St. 3d 191, 200 (2001), citing United States v. Olano,
507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). “Second, the error must be plain.
To be “plain” within the meaning of Crim.R. 52(B), an error must be an “obvious”
defect in the trial proceedings.” Id., citing State v. Sanders, 92 Ohio St. 3d 245, 257,
(2001), citing State v. Keith, 79 Ohio St. 3d 514, 518 (1997) and Olano, 507 U.S. at
734, 113 S. Ct. at 1777. “Third, the error must have affected ‘substantial rights.’
We have interpreted this aspect of the rule to mean that the trial court’s error must
have affected the outcome of the trial.” Id., citing Hill, 92 Ohio St.3d at 205, State
v. Moreland, 50 Ohio St. 3d 58, 62 (1990), and Long, 53 Ohio St. 2d at 91, paragraph
two of the syllabus. Thus, Hacker is “required to demonstrate a reasonable
probability that the error resulted in prejudice—the same deferential standard for
reviewing ineffective assistance of counsel claims.” State v. Rogers, 143 Ohio St. 3d
385, 2015-Ohio-2459, ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,
81-83, 124 S. Ct. 2333 (2004). That is—an appellate court addressing the failure to
object to the imposition of a financial sanction “must review the facts and
circumstances of each case objectively and determine whether the defendant
demonstrated a reasonable probability that had [Hacker’s trial] counsel moved to
waive [or objected to the imposition of the financial sanction], the trial court would
have granted that motion.” See State v. Davis, 159 Ohio St. 3d 31, 2020-Ohio-309,
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¶ 14 (applying the prejudiced prong on ineffective-assistance-of-counsel analysis to
the waiver of court costs); see also State v. Thompson, 3d Dist. Allen No. 1-19-30,
2020-Ohio-723, ¶ 19, citing Davis at ¶ 14.
{¶29} R.C. 2929.19(B)(5) requires the trial court “[b]efore imposing a
financial sanction under section 2929.18 * * * [to] consider the offender’s present
and future ability to pay the amount of the sanction * * *.” “[T]here are no express
factors that must be taken into consideration or findings regarding the offender’s
ability to pay that must be made on the record.” State v. Williams, 9th Dist. Summit
No. 26014, 2012-Ohio-5873, ¶ 17, quoting State v. Martin, 140 Ohio App. 3d 326,
327 (4th Dist.2000). However, the record must reflect that the trial court actually
considered a defendant’s ability to pay. Williams at ¶ 17, citing Martin at 327; State
v. Lewis, 2d Dist. Greene No. S-11-028, 2012-Ohio-4858, ¶ 9; State v. McQuillen,
5th. Dist. Ashland No. 12CA014, 2012-Ohio-4953, ¶ 11; and State v. Dahms, 6th
Dist. Sandusky No. S-11-025, 2012-Ohio-3181, ¶ 16. We “look to the totality of
the circumstances to see if this requirement has been satisfied.” State v. Barker, 8th
Dist. Cuyahoga No. 93574, 2010-Ohio-4480, ¶ 12, citing State v. Lewis, 8th Dist.
Cuyahoga No. 90413, 2008-Ohio-4101, ¶ 12, citing State v. Henderson, 4th Dist.
Vinton No. 07CA659, 2008-Ohio-2063, ¶ 7; State v. Smith, 4th Dist. Ross No.
06CA2893, 2007-Ohio-1884, ¶ 41-42; and State v. Ray, 4th Dist. Scioto No.
04CA2965, 2006-Ohio-853, ¶ 26.
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{¶30} Here, the record reveals that trial court considered Hacker’s ability to
pay, when the trial court stated that it had “also considered defendant’s written
sentencing memorandum that was filed January 4, 2020.” (Jan. 27, 2020 Tr. at 21);
(Doc. No. 85). Importantly, contained within that sentencing memorandum is
information regarding Hacker’s long-term-employment history where he was
considered a “valued employee” with income in the amount of $4,400 per month.5
(See Doc. No. 56). Thereafter, the trial court stated “[i]n addition to this prison
sentence, the defendant is also assessed a $10,000 fine.” (Jan. 27, 2020 Tr. at 27);
(Doc. No. 85). Thus, because the record before us is not silent as to whether the
trial court considered Hacker’s ability to pay the fine before imposing the financial
sanction, the trial court could not commit plain error. See Williams at ¶ 19, quoting
State v. Andrews, 1st Dist. Hamilton No. C110735, 2012-Ohio-4664, ¶ 32. While
it certainly facilitates appellate review when a trial court affirmatively states on the
record that it considered a criminal defendant’s ability to pay, we cannot say that
the record in this case does not meet the threshold of R.C. 2929.19(B)(5), as a matter
of law. See Barker at ¶ 14, (concluding that a cursory reference in the record to the
trial court’s consideration of all factors required by law, the ordering of a PSI, and
the plain-error analysis were sufficient to meet the threshold of R.C.
5
It is not clear from our review of the record whether this was Hacker’s gross or net income. (See Doc. No.
56).
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2929.19(B)(6)).6 Consequently, and after reviewing the totality of the
circumstances, we cannot conclude that the trial court deviated from some legal rule,
with an obvious defect in the proceeding, that affected Hacker’s substantial rights.
Accordingly, we find no plain error exists which has caused a manifest miscarriage
of justice. See Long, 53 Ohio St. 2d at 95.
{¶31} For these reasons, Hacker’s third assignment of error is overruled.
{¶32} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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R.C. 2929.19 was amended by Am.Sub.H.B. 86, 2011 Ohio Laws File 29, effective September 30, 2011,
renumbering the division addressing the trial court’s consideration of the offender’s ability to pay financial
sanctions under R.C. 2929.18 or a fine under R.C. 2929.32 from division (B)(6) to division (B)(5).
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