State v. Velesquez

[Cite as State v. Velesquez, 2023-Ohio-1100.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1167
Appellee Trial Court No. CR0202201153
v.
Roberto Velesquez DECISION AND JUDGMENT
Appellant Decided: March 31, 2023
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
MAYLE, J.
{¶ 1} Following a plea, the Lucas County Court of Common Pleas sentenced the
appellant, Roberto Velesquez, to a total stated minimum term of 10 years in prison with a
maximum indefinite term of 12.5 years. The trial court’s June 28, 2022 judgment entry
also imposed various costs. On appeal, Velesquez challenges the imposition of
discretionary costs. Because the state concedes error under 6th Dist.Loc.App.R. 10(H)
and because we agree with the parties, that the imposition of the costs of confinement
was contrary to law, we vacate that part of the judgment. We affirm the judgment in all
other respects.
I. Background and Facts
{¶ 2} On June 15, 2022, Velesquez pleaded no contest to two counts of
endangering children in violation of R.C. 2919.22(B)(1), (E)(1), and (E)(2)(d), both
felonies of the second degree. A third count of endangering children was dismissed as
part of the plea agreement. Following the state’s recitation of the facts underlying the
charges—which involve descriptions of Velesquez’s children living in filth and squalor
and being subjected to horrifying abuse and neglect—the trial court found Velesquez
guilty.
{¶ 3} After imposing a prison term at the June 27, 2022 sentencing hearing, the
trial court stated that Velesquez could “work off [his] court costs while in custody.” It
did not expressly impose or refer to any other fees or costs, nor did it make any finding
with respect to Velesquez’s ability to pay financial sanctions.
{¶ 4} In its June 28, 2022 final judgment, the trial court made the following
findings:
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,
2.
and prosecution as authorized by law. Defendant ordered to reimburse the
State of Ohio and Lucas County for such costs. This order of
reimbursement is a judgment enforceable pursuant to law by the parties in
whose favor it is entered.
{¶ 5} Velesquez appeals his conviction, raising one assignment of error:
Assignment of Error: The court improperly assigned costs of
confinement and supervision in the judgment entry of sentencing, but not at
the sentencing hearing, and without regard to appellant’s ability to pay.
II. Law and Analysis
{¶ 6} In his sole assignment of error, Velasquez argues that the trial court
improperly ordered him to pay the costs of confinement and supervision. “Our standard
of review on this issue is whether the imposition of costs was contrary to law.” State v.
Ivey, 6th Dist. No. L-19-1243, 2021-Ohio-2138, ¶ 7, citing R.C. 2953.08(A)(4) and
(G)(2)(b).
{¶ 7} Velesquez concedes that the trial court “properly assessed” costs of
prosecution. Indeed, such costs are mandatory under R.C. 2947.23(A)(1)(a) (“In all
criminal cases, * * * the judge or magistrate shall include in the sentence the costs of
prosecution * * * and render a judgment against the defendant for such costs.”)
(Emphasis added.)
3.
{¶ 8} Unlike the costs of prosecution, the costs of supervision and confinement are
discretionary. See R.C. 2929.18 (A)(5)(a) (“* * * the court imposing a sentence upon an
offender for a felony may sentence the offender to any financial sanction * * * including
the following: (i) [a]ll or part of the costs of implementing any community control
sanction, including a supervision fee under section 2951.021 of the Revised Code; (ii)
[a]ll or part of the costs of confinement under a sanction imposed pursuant to section
2929.14, 2929.142, or 2929.16 of the Revised Code.) (Emphasis added.)
{¶ 9} If the court elects to impose discretionary costs, including the costs of
supervision or confinement, it must affirmatively find that the defendant has or
reasonably may be expected to have, the ability to pay. See R.C. 2929.19(A)(5) (“Before
imposing a financial sanction under section 2929.18 of the Revised Code * * *, the court
shall consider the offender’s present and future ability to pay the amount of the
sanction”); see also Ivy at ¶ 8; State v. Eaton, 6th Dist. Lucas No. L-18-1183, 2020-Ohio-
3208, ¶ 33. “When the record on appeal contains no evidence reflecting the trial court’s
consideration of present or future ability to pay these costs—such as consideration of
defendant’s age, health, employment history, or level of education—the imposition of
these costs is improper and must be vacated.” Ivy at ¶ 8, citing State v. Stovall, 6th Dist.
Lucas No. L-18-1048, 2019-Ohio-4287, ¶ 37 (Trial court’s statement that it reviewed a
PSI that included information on the defendant’s financial, educational, and vocational
background is sufficient to support imposition of discretionary costs).
4.
{¶ 10} “Although the ‘best practice’ is for the trial court to put the basis for its
findings regarding a defendant’s ability to pay on the record, the trial court is not
required to explicitly make findings on the record.” (Emphasis in the original.) Ivy,
quoting State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786, 171 N.E.3d 290, ¶ 2. Nor
is the court required to consider any specific factors in reaching its determination about a
defendant’s ability to pay. Id. citing State v. VanCamp, 6th Dist. Wood No. WD-15-034,
2016-Ohio-2980, ¶ 10. Although the court need not conduct a formal hearing as to the
defendant’s ability to pay discretionary costs, a finding of a defendant’s ability to pay
“must be supported by clear and convincing evidence in the record.” State v. Wymer, 6th
Dist. Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 14.
{¶ 11} Here, the trial court did not impose the costs of supervision or confinement
during the sentencing hearing, nor did it expressly consider Velesquez’s present and
future ability to pay such costs at that hearing. However, it its final judgment entry, the
court stated that “[d]efendant found to have, or reasonably may be expected to have, the
means to pay all or part of the applicable costs of supervision [and] confinement * * * as
authorized by law.” Velasquez asks us to “find that the costs of supervision and
confinement included in the sentencing entry must be vacated * * *.”
{¶ 12} As an initial matter, we note that the trial court did not order Velesquez to
pay any costs of supervision in the sentencing entry. Costs of supervision are not
applicable in this case because Velesquez was sentenced to prison. R.C. 2951.021(A)(1);
5.
See, e.g., State v. Eaton, 6th Dist. Lucas No. L-18-1183, 2020-Ohio-3208, ¶ 33 (“The
costs of supervision are not at issue in this case because a prison term was imposed.”).
The trial court’s judgment entry specifies that Velesquez must “pay the cost assessed
pursuant to R.C. 9.92(C), 2929.18 and 2951.021 [i.e., costs of supervision] if not
sentenced to ODRC.” (Emphasis added.) Because Velesquez was sentenced to ODRC,
he was not ordered to pay costs of supervision. Accordingly, our analysis focuses on the
costs of confinement.
{¶ 13} Velesquez argues that the trial court improperly imposed the costs of
confinement because it made no finding at the sentencing hearing regarding his ability to
pay. And, although the court subsequently made an ability-to-pay determination in the
judgment entry, Velesquez alleges that it was “conclusory” and not supported by any
evidence in the record. Notably, the state concedes error because it recognizes that we
have “previously found reversible error in similar situations,” and the state asks us “to
vacate only the portion of the sentencing entry pertaining to the costs of confinement and
supervision.”1
{¶ 14} We agree with the parties. The trial court record is devoid of any evidence
to support the trial court’s determination that Velesquez has, or may be expected to have,
the means to pay costs of confinement. Wymer at ¶ 14 (a finding of a defendant’s ability
to pay “must be supported by clear and convincing evidence in the record”). According
1
On March 14, 2023, the state filed a Notice of Conceded Error. See 6th Dist.Loc.R.
10(H).
6.
to the record, Velesquez is 32 years old, with a “maybe [a] tenth-grade education” and no
known employment history. He also suffers from an “altered mind” and “ongoing mental
health issues,” according to his sentencing memorandum. Contributing to his lack of
employability is the fact that he has just begun serving a minimum ten-year prison
sentence. Although he will still be a relatively young man when he is released, his lack
of education and employment, poor health, and criminal record indicate that it is
unreasonable to expect that Velesquez has or will have the financial ability to pay for his
costs of confinement.
{¶ 15} In sum, based upon our review of the record, we find that the record does
not contain clear and convincing evidence to support the trial court’s determination that
Velesquez has, or reasonably may be expected to have, a present or future ability to pay
the costs of his confinement. Accord State v. Maloy, 6th Dist. Lucas No. L-1-1350,
2011-Ohio-6919, ¶15 (Defendant lacks ability to pay where he did not finish high school,
has never been gainfully employed, and will be incarcerated until he is 94 years old).
{¶ 16} For the above reasons, we find that the trial court’s imposition of the costs
of confinement was contrary to law. Therefore, we find Velesquez’s assignment of error
well-taken, in part, but not well-taken with respect to the costs of supervision, which
were not ordered in this case.
7.
III. Conclusion
{¶ 17} The June 28, 2022 judgment of the Lucas County Court of Common Pleas
is affirmed, in part, and reversed, in part. The portion of the trial court’s judgment that
requires Velesquez to pay the costs of confinement is hereby vacated. The remainder of
the judgment is affirmed. The state is ordered to pay the costs of this appeal pursuant to
App.R. 24. It is so ordered.
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.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
8.