State v. Nelson

[Cite as State v. Nelson, 2022-Ohio-3520.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-22-07
v.
TREVER DYLAN NELSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI-2021-2097
Judgment Affirmed
Date of Decision: October 3, 2022
APPEARANCES:
Howard A. Elliott for Appellant
Andrew R. Tudor for Appellee
Case No. 6-22-07
SHAW, J.
{¶1} Defendant-Appellant, Trever D. Nelson (“Nelson”), appeals his
conviction and sentence from the Hardin County Court of Common Pleas.
Facts and Procedural History
{¶2} On July 15, 2021, Nelson was charged in a four-count indictment with
the offenses of aggravated possession of drugs, a fifth-degree felony (Count 1),
failure to verify address, a first-degree felony (Count 2), failure to provide notice of
change of address, a first-degree felony (Count 3), and failure to register, a first-
degree felony (Count 4). Nelson entered into a negotiated plea agreement and pled
guilty to Counts 1 and 2. The trial court accepted Nelson’s plea and entered a
finding of guilty. The trial court ordered a presentence investigation and set the
matter for a sentencing hearing on March 31, 2022.
{¶3} After the sentencing hearing, the trial court sentenced Nelson to ten
months in prison on Count 1 and four years on Count 2, to be served consecutively,
for an aggregated prison term of four years and ten months. As to both counts, the
trial court ordered Nelson to pay court-appointed-counsel fees. The trial court also
dismissed the remaining counts of the indictment as part of the plea agreement.
Nelson filed a notice of appeal, raising two assignments of error for our review.
ASSIGNMENT OF ERROR NO. 1
The trial court, having imposed a term of incarceration, properly
[sic] imposed a financial sanction directing that the
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Defendant/Appellant pay court appointed counsel fees without
having determined as a prerequisite, the ability of the Defendant
to pay same.
ASSIGNMENT OF ERROR NO. 2
The charge of failure to verify address may not be sustained
without the State first demonstrating that the appropriate notice
under Ohio Revised Code § 2950.06(G) was generated and
transmitted pursuant to statute and where the record does not
reflect that was done, conviction for violation of Ohio Revised
Code § 2950.06(F), failure to verify address of sex offender,
cannot be sustained.
First Assignment of Error
{¶4} In his first assignment of error, Nelson argues that the trial court erred
when it failed to determine his ability to pay court-appointed-counsel fees as a
prerequisite to imposing such a financial sanction.
{¶5} We begin our analysis by noting that, in State v. Rodriguez, 3d Dist.
Seneca No. 13-20-07, 2021-Ohio-2295, we concluded, “to the extent that
[appellant] argues that court-appointed-counsel fees are financial sanctions under
R.C. 2929.18 his argument is without merit.” Rodriguez at ¶ 8. It is stated in
Rodriguez that the Ohio Supreme Court has held that “ ‘there is no statutory
authority allowing a trial court to “sentence” a defendant to pay court-appointed-
counsel fees, [and that] such an order cannot be included as part of the defendant’s
sentence.’ ” Id., quoting State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786, ¶
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35. Accordingly, to the extent Nelson presents an assignment of error directing us
to R.C. 2929.18 discussing financial sanctions, his argument is without merit.
{¶6} As relevant here, R.C. 2941.51(D) states in pertinent part:
The [appointed-counsel] fees and expenses approved by the court
under this section shall not be taxed as part of the costs and shall
be paid by the county. However, if the person represented has, or
reasonably may be expected to have, the means to meet some part
of the cost of the services rendered to the person, the person shall
pay the county an amount that the person reasonably can be
expected to pay.
{¶7} In this case, as part of the plea agreement, the parties agreed to a joint
recommendation as it pertained to Nelson paying his court-appointed-counsel fees.
(Mar. 3, 2022 Tr. at 4). At the time of sentencing, the trial court made the following
finding: “Defendant has, or reasonably may be expected to have, the means to pay”
“court-appointed-counsel fees.” (Doc. No. 44 at p. 5). The trial court then ordered
Nelson to pay court-appointed-counsel fees.
{¶8} Moreover, since the record indicates Nelson agreed to the trial court
ordering the payment of court-appointed-counsel fees, any error in the trial court’s
order was invited by Nelson, and therefore, he cannot take advantage of this alleged
error upon appeal. Pursuant to the “invited error” doctrine, a party may not “ ‘take
advantage of an error which [that party] invited or induced.’ ˮ State v. Campbell,
90 Ohio St.3d 320, 324, 2000-Ohio-183, quoting Hal Artz Lincoln-Mercury, Inc. v.
Ford Motor Co., 28 Ohio St.3d 20 (1986), paragraph one of the syllabus.
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Furthermore, having failed to object to the court-appointed-counsel fee order at the
sentencing hearing, no manifest miscarriage of justice occurs by concluding that we
are precluded from reviewing this because the State and Nelson had a joint
recommendation that the trial court implicitly adopted and that was “authorized by
law.” See Rodriguez at ¶ 9; see also State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, ¶ 16, citing R.C. 2953.08(D)(1); State v. Sergent, 148 Ohio St.3d 94, 2016-
Ohio-2696, ¶ 15. Nelson’s first assignment of error is overruled.
Second Assignment of Error
{¶9} In his second assignment of error, Nelson claims that his conviction of
failure to verify a current address cannot be sustained because the State failed to
prove that the Hardin County Sheriff’s Office complied with the seven-day notice
requirement of R.C. 2950.06(G)(1) prior to commencing prosecution. Nelson
contends, for the first time on appeal, that there was no mention in his indictment or
the essential facts constituting the offense charged that the statutorily required
notification was met.
{¶10} The following additional facts are necessary for us to evaluate this
assigned error. Nelson is a convicted sex offender who is required to periodically
verify his current address pursuant to R.C. Chapter 2950. On January 30, 2020,
Nelson went to the Hardin County Sheriff’s Office for his annual verification
obligation. Reference was made to a form provided Nelson setting forth his
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registration duties and informing him that his next verification was to be completed
by January 30, 2021.
{¶11} Nelson failed to verify his address on the next scheduled date of
January 30, 2021, and in July 2021, was indicted and then pled guilty as stated above
to failing to provide verification of his current address, a violation of R.C.
2950.06(F). That section states that no person who is required to verify a current
residence “shall fail to verify a current residence * * * by the date required for the
verification as set forth in division (B) of this section,” but that “no person shall be
prosecuted * * * for a violation of this division * * * prior to the expiration of the
period of time specified in division (G) of this section.” R.C. 2950.06(B)(1)
provides that an offender, like Nelson, comply with the registration verification
requirement on the anniversary of the offender’s initial registration date.
{¶12} Both R.C. 2950.06(G)(1) and (2), in turn, link a seven-day period to
the mailing of a written warning to a sex offender. State v. Williams, 114 Ohio St.3d
103, 2007-Ohio-3268, ¶ 11. “In addition, R.C. 2950.06(G)(2) prohibits a
prosecution for a violation of R.C. 2950.06(F) ‘unless the seven-day
period subsequent to that date that the offender * * * is provided under division
(G)(1) of this section to verify the current address has expired.’ ” (Emphasis
deleted.) Id.-6-
Case No. 6-22-07
{¶13} Criminal Rule 12(C)(2) mandates that “ ‘[d]efenses and objections
based on defects in the indictment’ ” must generally be raised before trial, and “
‘failure to timely object to the allegedly defective indictment constitutes a waiver of
the issues involved.’ ” State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, ¶ 73.
See also State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, at paragraph three
of the syllabus (“By failing to timely object to a defect in an indictment, a defendant
waives all but plain error on appeal.”).
{¶14} In any event, Nelson entered into a written plea agreement with the
State in which he agreed to plead guilty to the offense of failure to verify an address.
At the plea hearing, the trial court asked the prosecutor what the facts were and the
prosecutor recited the facts surrounding the failure to verify as a sex offender.
Nelson admitted that he failed to verify his current residence and that the State has
evidence to prove his guilt beyond a reasonable doubt. (Mar. 3, 2022 Tr. at 26).
Additionally, the trial court specifically advised Nelson that he was waiving any
“technical defenses” he might have had. (Id. at 19-20). When the discussion
returned to the matter of the registering later in the hearing, the trial court added:
“That’s why the prosecutor has to give your attorney all of the evidence. And that’s
what—I trust that’s all done. That certainly is what this prosecutor’s office regularly
does, in my experience, so I would feel—and Mr. Kelley’s done criminal work for
years and years and years. You understand that?” (Id. at 39). Nelson responded:
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“Yes, yes, I do.” (Id.). The trial court also asked, “So, you know, he does a lot of
this kind of thing so I trust that you are satisfied with his services, am I correct?”
and Nelson replied, Yes, I am. (Id. at 40). Accordingly, the Court finds that
Nelson’s actions in voluntarily pleading guilty to failure to verify current address
pursuant to negotiation and agreement while represented by counsel constitutes a
waiver of his alleged error on appeal.
{¶15} The second assignment of error is overruled.
{¶16} For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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