State v. Burks

[Cite as State v. Burks, 2023-Ohio-1156.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29629
:
v. : Trial Court Case No. 22-CRB-1496
:
MARQUISE BURKS : (Criminal Appeal from Municipal Court)
:
Appellant :
:
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OPINION
Rendered on April 7, 2023
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MARC T. ROSS, Attorney for Appellee
THOMAS W. KIDD, JR., Attorney for Appellant
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HUFFMAN, J.
{¶ 1} Defendant-Appellant Marquise Burks appeals from his convictions on several
offenses in the Dayton Municipal Court. Specifically, he challenges the court’s
imposition of fines as part of his sentence, although the fines were suspended. For the
following reasons, the judgment of the trial court is affirmed.
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I. Factual and Procedural Background
{¶ 2} Burks was charged with domestic violence, assault, and aggravated
menacing, all misdemeanors of the first degree; and domestic violence, a misdemeanor
of the fourth degree. Burks pled not guilty, and the matter proceeded to a bench trial on
July 26, 2022. Following the trial, Burks was found guilty of all charges.
{¶ 3} The trial court ordered a presentence investigation (PSI), which included
the following information: Burks was 27 years old; he had graduated from high school and
completed one year of college; he did not have any financial concerns and was not behind
on any debts; he worked full-time at Corner Kitchen as a chef and had worked there for
seven months; he had prior work experience as a sous chef for two years before his
current employment; and he was “pretty healthy.” At sentencing on October 12, 2022, the
trial court merged the assault with the first-degree misdemeanor domestic violence and
imposed the following sentences: a one-year term of probation, 180 days in jail each on
the first-degree domestic violence and aggravated menacing, and 30 days in jail on the
fourth-degree domestic violence. All of the sentences were to run concurrently, but the
jail time was suspended. The court also imposed a $200 fine on each count but
suspended the fines.
{¶ 4} At the sentencing hearing, the following exchange took place:
***
[THE COURT]: Do you have the PSI? All right, so, this was after a trial. All
right, well give me one second. This was a trial to the bench. All right, so it
appears that there was a trial held on July 26th of 2022. At that time, the
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court found the defendant guilty as charged and referred the matter for a
full PSI. I, obviously, was not the person who heard the trial. First let me ask
you whether or not anybody has any issues with me conducting the
sentencing today?
[THE PLAINTIFF]: No, issues Your Honor.
[THE COURT]: Any issues for the defense?
[THE DEFENSE]: (inaudible)
[THE COURT]: I will say that Judge Henderson, who heard the trial, is the
one who has done the sentencing essentually [sic] or told me what he would
like to see happen. I don’t know if that brings you any comfort in that the
person who heard it is the one who is doing the sentencing and I’m just
going along with this recommendation. I just want to put that out there in
case there is an issue.
***
[THE COURT]: Anything from the Defense?
[THE DEFENSE]: Yes, Your Honor. * * * He is a chef at Corner Kitchen.
He’s been there since the opening. * * *
***
[THE COURT]: * * * On each count there’s a two hundred dollar fine. The
fines will be suspended. So, should you violate the – you also are ordered
to have no contact with the complainant during your term of supervised
probation. Do you understand?
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[THE DEFENDANT]: Yes, Your Honor.
{¶ 5} On October 27, 2022, Burks filed a notice of appeal.
II. Review of Burks’s Sentence
{¶ 6} Burks’s first assignment of error states as follows:
THE TRIAL COURT ERRED IN ORDERING THE PAYMENT OF A FINE
AS PART OF APPELLANT’S SENTENCE.
{¶ 7} Burks contends that the trial court erred in ordering the payment of a fine as
part of his sentence, because the court did not assess his present and future ability to
pay the fine. In support, he argues that the trial court’s suspension of the fine does not
change the analysis, as the imposition of the fine was apparently suspended based on
Burks’s completion of probation, not based on a consideration of Burks’s present and
future ability to pay.
{¶ 8} In response, the State asserts that there is no justiciable issue that is ripe
for consideration because the trial court imposed a fine but then suspended it. The State
argues that the fine may never become due, as the fine was not explicitly suspended by
the trial court on the occurrence or non-occurrence of a particular condition or on Burks’s
ability to successfully complete the term of probation. The State further argues that neither
Burks nor his counsel lodged any objection to the imposition of the fine or to the fine’s
suspension at the sentencing hearing, and the defense even offered evidence that Burks
was then employed as a chef. Additionally, the State argues that Burks never raised an
issue that he lacked a present or future ability to pay a fine and that, if the fine is ever
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owed, Burks can request a hearing pursuant to R.C. 2929.28(B) at that time to determine
his ability to pay the fine.
{¶ 9} “In order to be justiciable, a controversy must be ripe for review.” State v.
Loving, 180 Ohio App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 4-15, citing Keller v.
Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26. “A claim is not
ripe for our consideration if it rests on contingent future events that may not occur as
anticipated or may never occur at all.” Id., citing Texas v. United States, 523 U.S. 296,
300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998).
{¶ 10} R.C. 2929.28 governs financial sanctions in misdemeanor cases. If the
court determines a hearing is necessary for the imposition of financial sanctions, “the
court may hold a hearing to determine whether the offender is able to pay the financial
sanction imposed pursuant to this section or court costs or is likely in the future to be able
to pay the sanction or costs.” R.C. 2929.28(B). Although R.C. 2929.28(B) makes holding
a hearing on a defendant’s ability to pay financial sanctions discretionary with the court,
there must be “some evidence in the record that the court considered the defendant’s
present and future ability to pay the sanction imposed.” State v. Simmons, 2d Dist.
Montgomery No. 26181, 2015-Ohio-446, ¶ 8, quoting State v. Kinsworthy, 12th Dist.
Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 34 and State v. Reigsecker, 6th Dist.
Fulton No. F-03-022, 2004-Ohio-3808, ¶ 11. “[W]hen determining a defendant’s present
and future ability to pay, there are no express factors a trial court must consider or findings
a court must make.” Loving at ¶ 9, citing State v. Conway, 10th Dist. Franklin No. 03AP-
1120, 2004-Ohio-5067, ¶ 7, citing State v. Finkes, 10th Dist. Franklin No. 01AP-310, 2002
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WL 464998, *22 (Mar. 28, 2002). However, when considering an offender’s ability to pay,
reviewing courts have identified certain factors as relevant, including the offender’s age;
the offender’s employment history and potential; the offender’s education; the offender’s
health; the length of the offender’s prison term; the offender’s source of income; the
offender’s income potential; whether the offender is indigent; and the amount of the
fine. State v. Lykins, 4th Dist. Adams No. 17CA1040, 2017-Ohio-9390, ¶ 13.
{¶ 11} “[W]hen a trial court fails to make an explicit finding regarding an offender’s
ability to pay, a reviewing court may consider the entire record to ascertain whether this
finding may be inferred.” (Citations omitted.) Id. at ¶ 12. Reviewing courts “have been
reluctant to recognize error in imposing financial sanctions when an offender fails to argue
before the trial court that the offender lacks the present or future ability to pay and fails to
present testimony or evidence to that effect.” (Citations omitted.) Id.
{¶ 12} Here, Burks’s argument that the imposition of the fine was suspended
based on Burks’s completion of probation, not based on a consideration of Burks’s
present and future ability to pay, is speculative. The trial court suspended the fine but did
not plainly indicate that the fine was suspended on the occurrence or non-occurrence of
a particular condition, and, thus, the fine may never become due. For this reason, there
is no justiciable issue before the Court that is ripe for consideration, as Burks’s argument
rests on contingent future events that may not occur as anticipated or may never occur
at all.
{¶ 13} Furthermore, we conclude that there is some evidence that the trial court
considered Burks’s present and future ability to pay the fine. The trial court referenced
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Burks’s PSI during sentencing, asked if there were any objections to proceeding with
sentencing, and imposed and then suspended the fines. The PSI contained evidence that
Burks was 27 years old; that he graduated from high school and completed one year of
college; that he did not have any financial concerns and was not behind on any debts;
that he worked full-time at Corner Kitchen as a chef and had worked there for seven
months; that he had prior work experience as a sous chef for two years before his current
employment; and that he was “pretty healthy.” Moreover, Burks never raised an issue in
the trial court that he lacked a present or future ability to pay the fine and, in fact,
presented evidence that he was employed full-time as a chef at the time of sentencing.
Finally, if the fine is ever owed, Burks can request a hearing at that time pursuant to R.C.
2929.28(B) to determine his ability to pay the fine.
{¶ 14} The trial court did not err by ordering Burks to pay a fine, and, thus, Burks’s
assignment of error is overruled.
III. CONCLUSION
{¶ 15} The judgment of the trial court is affirmed.
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TUCKER, J. and EPLEY, J., concur.