State v. Ivey

[Cite as State v. Ivey, 2021-Ohio-2138.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1243
Appellee Trial Court No. CR0201901267
v.
Melvin Ivey DECISION AND JUDGMENT
Appellant Decided: June 25, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Henry Schaefer, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Melvin Ivey, appeals the September 11, 2019 judgment of the
Lucas County Court of Common Pleas sentencing him to four years in prison. For the
following reasons, we affirm.
I. Background and Facts
{¶ 2} On August 27, 2019, Ivey pleaded no contest to one count of felonious
assault in violation of R.C. 2903.11(A)(1). At the plea hearing, the trial court elicited
from Ivey that he was 23 years old, had completed a year of community college, and was
a certified phlebotomist. Following the state’s recitation of the facts underlying the
charge, the trial court found Ivey guilty and ordered a presentence investigation report
(“PSI”).
{¶ 3} On September 11, 2019, the trial court sentenced Ivey to four years in
prison. In addition to the prison term, the trial court ordered Ivey to pay “the costs of
prosecution.” The court did not expressly impose any other fees or costs. While the
court noted that Ivey had no criminal history and was gainfully employed, it did not
address his ability to pay financial sanctions in any other way. Although the trial court
did not directly address Ivey’s ability to pay, it stated that it had reviewed the PSI, which
includes information about Ivey’s financial, educational, and vocational background.
{¶ 4} The trial court included the imposition of costs and fees in its September 11,
2019 sentencing entry. Specifically, the entry states:
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,
assigned counsel, and prosecution as authorized by law. Defendant ordered
to reimburse the State of Ohio and Lucas County for such costs. * * *
2.
Defendant further ordered to pay the cost[s] assessed pursuant to R.C.
9.92(C), 2929.18 and 2951.021 if not sentenced to ODRC.
{¶ 5} Ivey now appeals his conviction, raising one assignment of error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
IVEY WHEN IT ORDERED HIM TO PAY UNSPECIFIED COSTS,
INCLUDING COURT APPOINTED FEES, WITHOUT FIRST
DETERMINING THE ABILITY TO PAY THOSE COSTS.
II. Law and Analysis
{¶ 6} In his assignment of error, although he concedes that the trial court was
required to impose the costs of prosecution, Ivey contends that the trial court erred by
imposing the remaining financial sanctions because there is no evidence in the record that
the court considered his ability to pay. The state responds that the evidence in the record
clearly and convincingly supports the trial court’s finding that Ivey “ha[s], or reasonably
may be expected to have, the means to pay all or part of the applicable costs of
supervision, confinement, [and] assigned counsel * * *.”
{¶ 7} Our standard of review on this issue is whether the imposition of costs was
contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b); State v. Farless, 6th Dist. Lucas Nos.
L-15-1060 and L-15-1061, 2016-Ohio-1571, ¶ 4; State v. Collins, 2015-Ohio-3710, 41
N.E.3d 899, ¶ 31 (12th Dist.) (“An appellate court may not modify a financial sanction
unless it finds by clear and convincing evidence that it is not supported by the record or is
contrary to law.” (Internal quotations omitted.)).
3.
{¶ 8} The imposition of the costs of supervision, confinement, and assigned
counsel is discretionary. State v. Gray, 6th Dist. Lucas No. L-15-1072, 2015-Ohio-5021,
¶ 20. If the court elects to impose these costs, it must affirmatively find that the
defendant has, or reasonably may be expected to have, the ability to pay. Id. at ¶ 21;
State v. Wymer, 6th Dist. Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 14; R.C.
2929.18(A)(5)(a)(i), (ii); R.C. 2945.51(D). 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. State v. Taylor,
Slip Opinion No. 2020-Ohio-6786, -- N.E.3d --, ¶ 2. Nor is the court required to consider
any specific factors in reaching its determination about a defendant’s ability to pay. State
v. VanCamp, 6th Dist. Wood No. WD-15-034, 2016-Ohio-2980, ¶ 10. While the court
need not conduct a formal hearing as to the defendant’s ability to pay discretionary costs,
a finding of his ability to pay must be supported by clear and convincing evidence in the
record. Wymer at ¶ 14. 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. State v. Stovall, 6th Dist.
Lucas No. L-18-1048, 2019-Ohio-4287, ¶ 37. The trial court’s indication that it reviewed
a PSI that includes information on the defendant’s financial, educational, and vocational
background is sufficient to support the trial court’s imposition of discretionary costs. See
State v. Cantrill, 6th Dist. Lucas No. L-18-1047, 2020-Ohio-1235, ¶ 91.
4.
{¶ 9} Here, the trial court explicitly stated that it “reviewed the presentence report
* * *” before imposing Ivey’s sentence. The PSI includes sufficient information about
Ivey’s age, educational history, employment and vocational history, and past wages to
support the trial court’s finding that Ivey had, or reasonably would have, the ability to
pay the costs of supervision, confinement, and assigned counsel. See Cantrill at ¶ 91;
State v. Leveck, 6th Dist. Fulton No. F-20-009, 2021-Ohio-1547, ¶ 17.
{¶ 10} Because the record clearly and convincingly supports the trial court’s
finding that Ivey has or will have the ability to pay, we find that the court’s imposition of
discretionary costs is not contrary to law. Ivey’s assignment of error is not well-taken.
II. Conclusion
{¶ 11} Based on the foregoing, the September 11, 2019 judgment of the Lucas
County Court of Common Pleas is affirmed. Ivey is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
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, P.J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
5.
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/.
6.