[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25315 and 25316

v. : T.C. NO. 11CR1114 11CR1116 GARLAND A. JONES II : (Criminal appeal from Defendant-Appellant : Common Pleas Court)

:

..........

OPINION

Rendered on the 10th day of May , 2013.

..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CANDI S. RAMBO, Atty. Reg. No. 0076627, 15 W. Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Garland A. Jones II appeals from his conviction and 2

sentence for two counts of non-support of dependents, in violation of R.C. 2919.21(B), all

felonies of the fifth degree, in Case No. 2011 CR 1114. Jones also appeals from his

conviction and sentence for two counts of non-support of dependents, in violation of R.C.

2919.21(B), all felonies of the fifth degree, in Case No. 2011 CR 1116. Jones filed a timely

notice of appeal with this Court on August 13, 2012.

{¶ 2} On July 11, 2011, Jones was indicted by Montgomery County Grand Jury for

three counts of non-support of dependents in Case No. 2011 CR 1114. On the same day,

Jones was indicted in Case No. 2011 CR 1116 for four counts of non-support of dependents.

Jones was placed in the diversion program for the offenses in both cases on August 26,

2011. On February 16, 2012, Jones was unsuccessfully discharged from the diversion

program for failure to appear for appointments and failure to pay towards the restitution

amount.

{¶ 3} On March 14, 2012, the trial court issued a capias in each case because

Jones failed to attend a scheduled court appearance. Jones was arrested in California and

subsequently extradited to Ohio. On June 27, 2012, Jones pled guilty to two counts of

non-support of dependents in Case No. 2011 CR 1114, and the State dismissed the

remaining count in the indictment. On the same day, Jones pled guilty to two counts of

non-support of dependents in Case No. 2011 CR 1116, and the State agreed to dismiss the

remaining two counts in the indictment. Nevertheless, Jones agreed to pay restitution on all

seven counts in both indictments. Disposition was originally set for July 17, 2012, but we

have no transcripts of any such proceeding and no judgment entries were prepared reflecting

a final disposition. [Cite as State v. Jones,

.] {¶ 4} On July 31, 2012, Jones appeared for re-sentencing because at a prior

scheduled disposition, another judge utilized an incorrect extradition figure. The trial court

noted that it intended to impose the correct restitution figure in each of Jones’ cases. Jones’

counsel objected, but the trial court overruled the objection and proceeded with the final

disposition.

{¶ 5} Ultimately, the trial court placed Jones on community control for a period

not to exceed five years. The trial court ordered Jones to pay court costs, a supervision fee

of $50.00, and $130.00 to the Assigned Counsel Budget Office. Further, the trial court

ordered Jones to pay restitution in Case No. 2011 CR 1114 in the amount of $23,987.01, and

$14,527.21 in Case No. 2011 CR 1116. Pursuant to the termination entries in both cases,

the trial court ordered Jones to pay the costs of his extradition, which totaled $1,836.95.

{¶ 6} It is from this judgment that Jones now appeals.

{¶ 7} Jones’ first assignment of error is as follows:

{¶ 8} “THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY

THE COSTS OF HIS EXTRADITION.”

{¶ 9} In his first assignment, Jones contends that the trial court erred when it

ordered him to pay the costs of his extradition. Specifically, Jones argues that the trial

court’s order that he pay his extradition costs is tantamount to ordering him to pay restitution

to a person who is not the victim of his crime.

{¶ 10} Initially, we note that Jones relies heavily on a case from the Third District

Court of Appeals, State v. Toler,

,

,

(3d

Dist.), in support of his argument that the trial court erred in assessing him the cost of

extradition. In Toler, the defendant argued that the trial court erred when it specifically 4

“ordered him to pay restitution in the amount of $694.10 to the Hardin County Sheriff’s

Office for the expenses associated with his extradition.” id. at ¶ 7. On appeal, the Third

District held that the trial court erred in imposing the cost of extradition because it

incorrectly considered the extradition expenses as restitution. Id. at ¶ 13. The Toler court

went on to find:

We have found that based upon the plain language of R.C. 2929.18(A)(1), the

General Assembly intended that restitution be available only to the actual

victims of the offense. Accordingly, “the right to order restitution is limited

to the actual damage or loss caused by the offense of which the defendant is

convicted.” With the exceptions of certain circumstances inapplicable to this

case, government entities do not constitute “victims” entitled to restitution for

their expenditure of public funds in the pursuit of fighting crime. (citations

omitted.) Id. at ¶ 11.

{¶ 11} In the instant case, the record clearly establishes that the trial court did not

consider the costs of Jones’ extradition as an element of the restitution order. During the

re-sentencing hearing, the trial court stated as follows:

Sir (addressing Jones), based upon and principles of sentencing and the

seriousness and recidivism factors, I’m going to sentence you to community

control sanctions for a period not to exceed five years, with the sanctions

previously imposed by Judge Gorman, including the restitution previously

imposed which included that you serve a term of intensive probation

supervision for a period not to exceed five years; that you pay court costs in 5

an amount determined by the Clerk of Courts, a supervision fee of $50.00, the

sum of $130.00 to the Assigned Counsel Budget; that you pay restitution in

the amount of $23,987.00 in one case – excuse me – and one cent on the one

case and $14,527.21 on the other case; that you attend the Goodwill Program

and that you obtain full-time verifiable employment; that you attend the

Non-Support Court Program; that you complete 100 hours of community

service; that you provide verification that you have completed ten job

applications per week; that you abstain from the use of any illegal drugs,

drugs of abuse or alcohol; that you be placed on a no-break status; that the

extradition costs be assessed to you in the amount of $1,836.95.

{¶ 12} Additionally, we note that the judgment entry of conviction in Case No.

2011 CR 1114 lists sanction number four as “a requirement that the offender pays restitution

in the amount of $23,987.01 to the Ohio Child Support Payment Central, in a monthly

amount to be determined by that agency.” The judgment entry of conviction in Case No.

2011 CR 1116 also lists sanction number four as “[a] requirement that the offender pays

restitution in the amount of $14,5277.31 to the Ohio Child Support Payment Central, in a

monthly amount to be determined by that agency.” Significantly, however, the judgment

entries in Case Nos. 2011 CR 1114 and 2011 CR 1116 both separately list sanction number

five as “[a] requirement that the offender pays extradition cost in the amount of $1,836.95.”

{¶ 13} Upon review, we conclude that it is clear from the record that the trial court

did not order Jones to pay the cost of his extradition as part of the separate order of

restitution he was directed to pay. Thus, Jones’ reliance on the court’s holding in Toler is 6

misplaced, and the trial court properly ordered him to pay for his extradition from California

to Ohio as a portion of the costs of his prosecution. R.C. 2947.23(A)(1), which governs the

trial court’s authority to impose costs on a defendant convicted of a felony, provides, “[i]n

all criminal cases, including violations of ordinances, the judge or magistrate shall include in

the sentence the costs of prosecution *** and render a judgment against the defendant for

such costs.” The phrase “costs of prosecution” has not been statutorily defined. City of

Middleburg Heights v. Quinones,

,

,

. The term “cost,” however, has been defined as “the statutory fees to which officers,

witnesses, jurors, and others are entitled for their services in an action or prosecution, and

which the statutes authorize to be taxed and included in the judgment or sentence.”

citing State ex rel. Franklin Cty. Commrs.v. Guilbert,

, 338,

(1907). “The expenses which may be taxed as costs in a criminal case are those directly

related to the court proceedings and are identified by a specific statutory authorization.”

Middleburg, at ¶ 8, citing State v. Christy, 3d Dist. Wyandot No. 16-04-04,

.

{¶ 14} R.C. 2949.14, which authorizes the trial court to impose the cost of

extradition on a felony defendant, provides:

Upon conviction of a non-indigent person for a felony, the clerk of the court

of common pleas shall make and certify under the clerk’s hand and seal of the

court, a complete itemized bill of the costs made in such prosecution,

including the sum paid by the board of county commissioners, certified by the

county auditor, for the arrest and return of the person on the requisition of the

governor, or on the request of the governor to the president of the United 7

States, or on the return of the fugitive by a designated agent pursuant to a

waiver of extradition except in cases of parole violation. The clerk shall

attempt to collect the cost from the person convicted.

{¶ 15} Therefore, under R.C. 2947.23(A)(1) and R.C. 2949.14, the trial court may

impose the cost of extradition upon a non-indigent felony defendant if certain criteria are

met. Both judgment entries in Case Nos. 2011 CR 1114 and 2011 CR 1116 contain a

provision that states as follows, “[i]f applicable in this case, the defendant is hereby

ORDERED to pay extradition costs in the amount of $1,836.95, to the Montgomery County

Prosecuting Attorney’s Office and Judgment is hereby GRANTED against the defendant,

Garland A. Jones II, for said extradition costs to be paid to the Montgomery County

Prosecuting Attorney’s Office through the Montgomery County Clerk of Courts.” By

ordering Jones to pay the extradition costs to the prosecutor’s office through the

Montgomery County Clerk of Courts, the trial court complied with the statutory procedure

set forth in R.C. 2949.14. Moreover, unlike the trial court in Toler, the trial court in the

instant case properly considered extradition costs as a cost of prosecution pursuant to R.C.

2947.23(A)(1), both separate and apart from any restitution that was ordered.

{¶ 16} Lastly, we note that the trial court erred by ordering Jones to pay the cost of

extradition in both Case Nos. 2011 CR 1114 and 2011 CR 1116, when it should have

assessed those costs in one of the cases to avoid a double payment. In this case, the State

concedes this was error. Accordingly, we vacate the cost of extradition ordered in Case No.

2011 CR 1116.

{¶ 17} Jones’ first assignment of error is overruled in part and sustained in part. 8

{¶ 18} Jones’ second assignment of error is as follows:

{¶ 19} “THE TRIAL COURT MAY HAVE ERRED IN RESENTENCING

APPELLANT OVER HIS OBJECTION.”

{¶ 20} In his second assignment, Jones argues that the trial court erred when it

re-sentenced him over his objection. Specifically, Jones asserts that the trial court should

have held a hearing to determine whether he had willfully failed to comply with the

diversion program and whether he had the ability to pay child support in the amounts

required by the diversion program.

{¶ 21} It is undisputed that after being placed in the diversion program, Jones

moved to California and did not return to Ohio. Once he reached California, Jones stopped

making his payments pursuant to the restitution order in place, thus precipitating his

extradition to Ohio. By absconding to California and discontinuing his child support

payments, Jones willfully failed to comply with the terms of the diversion program.

Additionally, while he did object to the re-sentencing conducted by the trial court, there is no

evidence in the record that Jones ever requested that the court hold a hearing to determine

whether he had the ability to pay his child support in the amounts required by the diversion

program. Thus, the trial court did not err when it overruled Jones’ objection and proceeded

to re-sentence him on July 31, 2012.

{¶ 22} Jones’ second assignment of error is overruled.

{¶ 23} Jones’ third assignment of error is as follows:

{¶ 24} “THE TRIAL COURT ERRED IN ORDERING RESTITUTION FIGURES

THAT APPEAR TO HAVE BEEN ACCRUED OUTSIDE THE APPLICABLE INDICTED 9

TIME PERIODS.”

{¶ 25} In his third assignment, Jones argues that the trial court erred when it

calculated the restitution amounts he was required to pay. Specifically, Jones asserts that

the restitution amounts contained in either judgment entry in Case Nos. 2011 CR 1114 and

2011 CR 1116 are incorrect and represent the support arrearages for the entire existence of

the support order rather than only the applicable periods contained in the indictments.

{¶ 26} Initially, we note that Jones agreed to pay restitution on all seven counts

contained in the indictments in Case Nos. 2011 CR 1114 and 2011 CR 1116, even those

counts that were dismissed at the plea hearing prior to sentencing. Therefore, the trial

court’s restitution order should have contained the child support arrearages for the indicted

periods on all seven counts in both indictments.

{¶ 27} Upon review of Jones’ pre-sentence investigation report (PSI), the trial court

only ordered payment of the restitution for the support arrearages as they appeared during the

applicable periods of the indictment. In Case No. 2011 CR 1114, the PSI specifically stated

that “[t]he total amount of restitution owed for the above indicted time periods is

$23,987.01.” The PSI in Case No. 2011 CR 1116 also stated that “[t]he total amount of

restitution owed for the above indicted time periods is $14,527.21.” As previously

mentioned, these amounts are the same support figures the trial court ordered Jones to pay in

restitution. We note that the PSI indicates that according to the Ohio Child Support

Enforcement Agency, the full amount Jones owes in arrearages in each case is $26,554.01

and $19,940.47 respectively, in Case Nos. 2011 CR 1114 and 2011 CR 1116. The fact that

the restitution amounts ordered to be paid by the trial court are lower than the total arrearage 10

amounts further establishes that the trial court did not order Jones to pay any amounts that

accrued outside the indicted periods. We also note that Jones did not object to the

restitution order at his re-sentencing hearing on July 31, 2012. Thus, we conclude that the

trial court ordered Jones to pay only the restitution amounts in Case Nos. 2011 CR 1114 and

2011 CR 1116 that accrued during the indicted time periods.

{¶ 28} Jones’ third assignment of error is overruled.

{¶ 29} Jones’ fourth assignment of error is as follows:

{¶ 30} THE TRIAL COURT ERRED IN ORDERING RESTITUTION WITHOUT

CONSIDERATION FOR APPELLANT’S ABILITY TO PAY SAME.

{¶ 31} In his fourth assignment, Jones contends that the trial court failed to consider

his future ability to pay when it ordered approximately $40,000.00 in restitution.

{¶ 32} A trial court abuses its discretion when it orders restitution that does not bear

a reasonable relationship to the actual financial loss suffered. State v. Williams,

,

(2d Dist. 1986). Therefore, we review a trial court’s order of

restitution under an abuse of discretion standard. See, e.g., State v. Naylor, 2d Dist.

Montgomery No. 24098,

, ¶22. “The abuse of discretion standard is defined

as ‘[a]n appellate court’s standard for reviewing a decision that is asserted to be grossly

unsound, unreasonable, illegal, or unsupported by the evidence.’” State v. Boles, 2d Dist.

Montgomery No. 23037,

, ¶18, quoting Black’s Law Dictionary, Eighth

Edition (2004), at 11.

“Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. (Citation omitted.) It is to be expected that most 11

instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it

deciding the issue de novo, would not have found that reasoning process to be

persuasive, perhaps in view of countervailing reasoning processes that would

support a contrary result. AAAA Enterprises, Inc. v. River Place Community

Urban Redevelopment Corp.,

,

(1990).

{¶ 33} R.C. 2929.18(A)(1) allows a trial court to order, as a financial sanction, an

amount of restitution to be paid by an offender to his victim “based on the victim’s

economic loss. * * * If the court imposes restitution, the court may base the amount of

restitution it orders on an amount recommended by the victim, the offender, a pre-sentence

investigation report, estimates or receipts indicating the cost or repairing or replacing

property, and other information, provided that the amount the court orders as restitution shall

not exceed the amount of the economic loss suffered by the victim as a direct and proximate

result of the commission of the offense. If the court decides to impose restitution, the court

shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount. *

**”

{¶ 34} We begin by addressing Jones’ claim that the trial court failed to consider

his ability to repay his victim before ordering restitution. The record does not support his

claim. 12

{¶ 35} R.C. 2929.19(B)(6) imposes a duty upon the trial court to “consider the

offender’s present or future ability to pay” before imposing any financial sanctions under

R.C. 2929.18. See, e.g., State v. Martin,

,

,

(4th Dist.), citing State v. Stevens, 12th Dist. Clinton No. CA98-01-001,

(Sept. 21, 1998). However, the statute establishes no particular factors for the

court to take into consideration, nor is a hearing necessary before making this determination.

A trial court may comply with R.C. 2929.19(B)(6) by considering a pre-sentence

investigation report, which includes information about the defendant’s age, health,

education, and work history.

{¶ 36} In this case, both the transcript of the plea hearing and sentencing, as well as

the judgment entry of conviction indicate that the trial court considered the pre-sentence

investigation report prior to ordering Jones to pay restitution. Furthermore, a review of

Jones’ PSI establishes that at the time of the hearing he was forty-four years of age and

suffered from no health issues which would render him incapable of having adequate

financial resources to pay the restitution ordered by the trial court. Jones is a high school

graduate with some community college experience. Jones spent four years in the Air Force.

The PSI also indicates that Jones has a significant work history. Under these

circumstances, we conclude that the trial court did not fail to consider Jones’ present or

future ability to pay restitution.

{¶ 37} Jones’ fourth assignment is overruled.

{¶ 38} Jones’ fifth and final assignment is as follows:

{¶ 39} “APPELLANT’S COUNSEL WAS INEFFECTIVE FOR FAILING TO 13

RAISE THE DISPOSITIVE DEFENSE THAT ONE OF THE INDICTMENTS HAD BEEN

FILED FOR CRIMES THAT TOOK PLACE BEYOND THE STATUTE OF

LIMITATIONS.”

{¶ 40} In his final assignment, Jones argues that his counsel was ineffective for

failing to argue that Count I in Case No. 2011 CR 1114 was filed beyond the statute of

limitations and should have been dismissed. Specifically, Jones notes that Count I of the

indictment charges a period of non-support beginning April 1, 2005, and ending March 31,

2007. According to Jones, because a portion of the time period stated in Count I occurred

outside the six-year statute of limitations, his counsel should have filed a motion to dismiss

and was ineffective for failing to do so. Jones’ argument has no merit.

{¶ 41} “We review the alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington,

,

,

(1984), and adopted by the Supreme Court of Ohio in State v. Bradley

(1989),

, * * * . Pursuant to those cases, trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland,

. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been

different.

Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal 14

citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957,

.

{¶ 42} An appellant is not deprived of effective assistance of counsel when counsel

chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown,

,

(1988). The test for a claim of ineffective assistance

of counsel is not whether counsel pursued every possible defense; the test is whether the

defense chosen was objectively reasonable. Strickland v. Washington,

,

,

(1984). A reviewing court may not second-guess decisions of

counsel which can be considered matters of trial strategy. State v. Smith,

,

(1985). Debatable strategic and tactical decisions may not form the basis

of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better

strategy had been available. State v. Cook,

,

(1992).

{¶ 43} Pursuant to R.C. 2901.13(A)(1)(a), the statute of limitations for felony

non-support of dependents is six years. R.C. 2901.13(D) states that “[a]n offense is

committed when every element of the offense occurs. In the case of an offense of which an

element is a continuing course of conduct, the period of limitation does not begin to run until

such course of conduct or the accused’s accountability for it terminates, whichever occurs

first.”

{¶ 44} Felony non-support of dependents constitutes a continuing course of

conduct. See State v. Rogers, 11th Dist. Lake No. 93-L-180,

(Dec. 23,

1994); State v. Harrison, 9th Dist. Summit No. 9930,

(Apr. 15, 1981),

(holding that under R.C. 2919.21[non-supporrt of dependents], the statute of limitations does

not begin to run until such course of conduct or the accused’s accountability for it 15

terminates, whichever comes first).

{¶ 45} In the instant case, Count I in the 2011 CR 1114 indictment alleges that

Jones failed to provide support for G.A.J. from April 1, 2005, through March 31, 2007.

Jones’ continuing course of conduct in Count I, therefore, ended on March 31, 2007. Thus,

on March 31, 2007, the six-year statute of limitations began to run. Six years from March

2007, is March 31, 2013. Accordingly, the indictment containing Count I in Case No. 2011

CR 1114 that was filed on July 11, 2011, is clearly within the statute of limitations for that

offense. Because there was no issue regarding the statute of limitations for Count I, Jones’

counsel was not ineffective for failing to file a motion to dismiss.

{¶ 46} Jones’ fifth and final assignment of error is overruled.

{¶ 47} The trial court erred when it ordered Jones to pay the cost of extradition in

both Case Nos. 2011 CR 1114 and 2011 CR 1116, when it should have been ordered in one

of the cases. Accordingly, we vacate the cost of extradition ordered in Case No. 2011 CR

1116. In all other respects, the judgment of the trial court is affirmed.

..........

FROELICH, J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps Candi S. Rambo Hon. Mary Katherine Huffman