[Cite as State v. Schneider,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96953

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

EDWARD SCHNEIDER DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-542767

BEFORE: Stewart, P.J., Keough, J., and Kilbane, J.

RELEASED AND JOURNALIZED: April 19, 2012 ATTORNEY FOR APPELLANT

John B. Gibbons 2000 Standard Building 1370 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Brian S. Deckert Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113 MELODY J. STEWART, P.J.:

{¶1} Defendant-appellant Edward A. Schneider appeals from the trial court’s

imposition of a fine of $10,000 stemming from his convictions for two counts of

aggravated vehicular assault, driving while under the influence of alcohol, and failure to

stop after an accident. He complains that the trial court did not consider his present and

future ability to pay the fine. Schneider also appeals the overruling of his motion to

suppress evidence, arguing that the trial court erred because there was no probable cause

and/or exigent circumstances to support his warrantless arrest. For the following

reasons, we affirm.

{¶2} After stopping to have a beer at a local bar, Schneider, while traveling home

in his pickup truck on Lewis Road in North Olmsted, drifted off of the road and onto the

berm and struck a bicyclist. Three witnesses observed the incident and saw the victim

become airborne before landing on the side of the road. One of the witnesses stopped to

render assistance and to call 911. A second witness remained at the accident scene and

told the police that the driver of the pickup truck was “just flying” down the road. The

third witness followed Schneider to his residence and recorded his license plate number

while observing him exit and then examine his vehicle. This witness returned to the

accident scene and provided the information to Officer Ralph Saxer of the Olmsted Falls

Police Department. {¶3} Officer Scott Cathcart and Detective Alex Bakos arrived at the location of the

collision and, after receiving the vehicle description, license plate number, and address

from Saxer, proceeded to Schneider’s address to further investigate. The officer and

detective pulled into the driveway and saw a pickup truck matching the description of the

vehicle involved in the collision. Both observed Schneider standing inside an open and

illuminated attached garage pouring a beer into a mug. Cathcart proceeded to question

Schneider about his knowledge of the incident, while Bakos inspected the pickup truck

for indications of damage. Schneider admitted to Cathcart that he had driven his vehicle

“a bit ago.” Cathcart detected a strong odor of alcohol and also observed slurred speech

while questioning Schneider. Bakos discovered that the passenger side mirror of the

pickup was folded inward, was cracked, and contained hair; that the vehicle contained

damage behind the front passenger headlight; and Bakos noticed wipe marks through dirt

on the right front area of the truck. Schneider was placed under arrest and read his

Miranda rights.

{¶4} Schneider was transported to the Olmsted Falls police station and was

questioned while being audiotaped and videotaped, but he refused to make a statement.

He also would not submit to a chemical breath test.

{¶5} Schneider was declared indigent and assigned a public defender for his initial

appearance in court. A cash/surety/property bond was set at $50,000, along with

conditions that he have no contact with the victim and that he not drive a motor vehicle.

Schneider subsequently retained counsel who filed a notice of appearance two days later. {¶6} After the case was indicted, Schneider was again declared indigent and

assigned a public defender. He pleaded not guilty to the indictment and commenced

discovery. He later retracted his pleas and entered guilty pleas to aggravated vehicular

assault and to driving while under the influence of alcohol or drugs. The trial court

referred him to the probation department for a presentence investigation and report and

set the case for sentencing.

{¶7} Schneider again retained counsel prior to the sentencing hearing and filed a

motion to withdraw his previously entered guilty pleas. The trial court granted his

motion and set the matter for pretrial and trial. After conducting additional discovery,

Schneider filed a motion to suppress evidence and a motion in limine to exclude

evidence. When his motion to suppress was denied, he withdrew his former plea of not

guilty and entered pleas of no contest to the four-count indictment. The trial court found

Schneider guilty on all counts and sentenced him to three years in prison, postrelease

control supervision, and suspended his driver’s license. The trial court also found that he

was “not indigent for purposes of appeal, fine, costs and fees” before imposing a $10,000

fine.

{¶8} For his first assignment of error, Schneider complains that the trial court erred

when it imposed a substantial fine without considering his present and future ability to

pay.

{¶9} Trial courts exercise broad discretion when imposing financial sanctions upon

a defendant, and an appellate court will review the trial court’s decision under an abuse-of-discretion standard. State v. Weyand, 7th Dist. No. 07-CO-40,

. The term “abuse of discretion” involves more than an error of law

or judgment but instead implies that the trial court acted in an unreasonable, arbitrary, or

unconscionable manner. State v. Adams,

,

(1980).

{¶10} A court must consider the offender’s present and future ability to pay the

amount of the sanction or fine before imposing a financial sanction. R.C. 2929.19(B)(5).

“There are no express factors that must be taken into consideration nor specific findings

that must be made by the court on the record, but there must be some evidence in the

record that the trial court considered the defendant’s ability to pay.” State v. Jacobs,

,

,

(8th Dist.), citing State v.

Cosme, 8th Dist. No. 90075,

. A trial court abuses its discretion

when it fails to inquire into a defendant’s ability to pay a financial sanction. State v.

Brewer, 3d Dist. No. 2-97-20,

(Jan. 28, 1998).

{¶11} R.C. 2929.18 sets forth the financial sanctions that a trial court may impose

upon an offender that has been convicted of a felony. For a felony of the third degree, a

trial court is authorized to impose a fine of not more than $10,000. R.C.

2929.18(A)(3)(c). In the instant case, the trial court imposed the maximum fine after

finding Schneider guilty of aggravated vehicular assault pursuant to R.C. 2903.08(A), a

third degree felony. {¶12} Schneider points out that the trial court did not specifically state that it

considered his ability to pay the fine. Instead, he alleges that the trial court’s erroneous

assumption of his solvency is due to its inflated valuation of his eight-year-old,

high-mileage pickup truck. Schneider claims that in reality he is fiscally destitute

because he has little equity in his home, is facing a pending divorce, and has two teenage

children to support while being incarcerated.

{¶13} In State v. Andera, 8th Dist. No. 92306,

, the appellant

similarly argued that his present and future ability to pay was not taken into account

before the imposition of a hefty fine. In that case, the trial court failed to state on the

record that it had considered present and future ability to pay, and did not order or review

a presentence investigation report, but instead only stated in its journal entry that “the

court considered all required factors of the law.” Id. at ¶ 52. On review, this court

found that the journal entry, while merely a “cursory reference in the record,” met the low

statutory investigative threshold required, when taken in combination with the

defendant’s previous employment along with his probable ability to resume employment

upon release. Id. at ¶ 53.

{¶14} In the instant case, the trial court had the benefit of a presentence

investigation report, considered the assets that could be used by Schneider to satisfy his

fine, and affirmatively stated on the record that it had considered all required factors of

law. The court provided an opportunity for Schneider to demonstrate his indigence when

it stated that “I feel there would be enough money to pay the fine and court costs unless you submit to me detailed banking records which would show there is no money — that

he is indigent to that extent.” Ohio law does not prevent a court from imposing a fine on

an indigent defendant. State v. Ramos, 8th Dist. No. 92357,

, ¶ 7.

Therefore, the trial court sufficiently considered Schneider’s present and future ability to

pay the fine. Accordingly, his first assignment of error is overruled.

{¶15} For his second assigned error, Schneider argues that the trial court erred

when it overruled his motion to suppress: (1) all testing of his coordination, sobriety, and

alcohol or drug levels, (2) any oral or written statements made by Schneider, and (3) the

observations and opinions of the police officers who questioned, arrested, and tested him.

Schneider asserts that the evidence should be suppressed because the police did not have

any lawful cause to approach and detain him and did not have probable cause to believe

that he committed the offenses charged before arresting him. He contends, therefore,

that any statements made outside of those necessary to facilitate his booking should not

have been admitted into evidence at trial.

{¶16} Probable cause to arrest exists when a law enforcement officer has

reasonably sufficient and trustworthy information to warrant a person of reasonable

caution to believe that a felony has been committed and that it has been committed by the

accused. Brinegar v. U.S.,

,

,

(1949);

State v. Timson,

,

(1974). Substantial and credible

information to supply a reasonable basis for arrest may be based upon the knowledge or

observations of the arresting officer, or may be derived from a reasonably trustworthy source. State v. Thompson,

,

(8th Dist. 1965); State

v. Sampson,

,

(7th Dist. 1982); Columbus v.

Lenear,

,

(10th Dist. 1984).

{¶17} A warrant is not needed in order to make a valid arrest under certain

circumstances. An arresting officer must have probable cause to believe that a defendant

has committed a felony, and the circumstances must make it impracticable to secure a

warrant. State v. Woodards,

,

(1966), citing Johnson v.

U.S.,

,

,

. See, e.g., Columbus v. Holmes,

,

(1958).

{¶18} When the delay associated with obtaining a warrant would result in the

concealment or destruction of evidence, the exigent-circumstances exception to the

Fourth Amendment’s warrant requirement may apply. State v. Johnson,

,

,

( 2d Dist.), citing State v. Motley,

9th Dist. No. 24182,

. “Exigent circumstances exist when there is * * *

a risk that a defendant’s blood-alcohol content will dissipate because ‘the body functions

to eliminate [alcohol] from the system.’” U.S. v. Eagle,

(8th

Cir. 2007), citing Schmerber v. California,

,

,

(1966).

{¶19} Schneider’s version of events is markedly different from that of the arresting

officers. Schneider claims that after Officer Cathcart and Detective Bakos pulled into his

driveway, Cathcart walked into his garage and demanded to know if he had struck someone with his vehicle, while Bakos simultaneously scrutinized his pickup truck for

exterior damage. Schneider only admitted to recently driving his vehicle. Schneider

asserts that Bakos then ordered Cathcart to arrest him while he was still inside the garage,

and that such a warrantless entry into his property to arrest him cannot be justified by the

“hot pursuit” doctrine or any other theory of exigent circumstances. Cathcart conversely

contends that he requested Schneider to exit the garage to speak to him and that the arrest

was made while Schneider was standing in the driveway near his pickup truck.

{¶20} At a suppression hearing, the evaluation of evidence and the credibility of

witnesses are issues for the trier of fact. State v. Fanning,

,

(1982). However, without deference to the trial court’s conclusion, it must

be determined independently whether, as a matter of law, the facts satisfy the applicable

legal standard. State v. Burnside,

,

,

.

{¶21} The testimony was conflicting as to the events leading up to the arrest. The

trial court assessed the credibility of the witnesses and their testimony and apparently

believed Cathcart’s and Bakos’s version of events and found that Schneider’s version of

events was not credible. We accept the trial court’s factual findings, supported by

competent and credible evidence, that Schneider’s arrest took place in his driveway and

not inside of his garage. However, even if Schneider’s version of events surrounding his

arrest are taken as true, his diminishing blood-alcohol level provided the exigent

circumstances necessary to effect his immediate arrest. {¶22} Schneider argues that there was no probable cause to arrest him because (1)

there were no facts to indicate that he had driven his truck in a reckless manner, (2) the

truck was examined only after he was arrested, and (3) no field sobriety tests were given

to prove that he was impaired.

{¶23} Law enforcement has probable cause to arrest a suspect for driving under

the influence if, “at the moment of arrest, the police had sufficient information, derived

from a reasonably trustworthy source of facts and circumstances, sufficient to cause a

prudent person to believe that the suspect was driving under the influence.” State v.

Homan,

,

(2000) (superseded by statute on other

grounds).

{¶24} The knowledge, observations, and credible information possessed by

Cathcart and Bakos at the time they arrested Schneider were more than adequate to

provide probable cause to believe that Schneider had committed the offenses of

aggravated vehicular assault and failure to stop after an accident. Three independent

witnesses observed a vehicle matching the description of Schneider’s pickup truck strike

and injure the cyclist. One witness followed the vehicle to Schneider’s residence and

recorded the address and license plate number. Schneider admitted to Cathcart that he

had recently driven the vehicle. Bakos observed fresh damage to several locations on the

right side of Schneider’s pickup truck. We find that these facts were sufficient to

provide probable cause that crimes had been committed by Schneider. {¶25} Probable cause to arrest Schneider for driving under the influence of alcohol

evolved only after Cathcart and Bakos, while possessing knowledge of the foregoing

facts, interacted with Schneider. Cathcart and Bakos testified that Schneider reeked of

alcohol, and was staggering, confused, and indifferent. They also testified that Schneider

had slurred speech, glassy eyes, and attempted to light a cigarette that he had placed

backwards in his mouth. Based upon the totality of the circumstances, probable cause, as

well as exigent circumstances, were present and justified the trial court’s denial of the

motion to suppress. Schneider’s second assignment of error is overruled.

{¶26} Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The

defendant’s conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MELODY J. STEWART, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and MARY EILEEN KILBANE, J., CONCUR