[Cite as State v. Mitchell,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2014-CA-108 : v. : T.C. NO. 14CR367 : JAMES MITCHELL, JR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the ___1st___ day of __ April___, 2016.

...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P. O. Box 751192, Dayton, Ohio 45475 Attorney for Defendant-Appellant

JAMES MITCHELL, JR., Inmate # 708810, Lebanon Correctional Institute, P. O. Box 56, Lebanon, Ohio 45036 Defendant-Appellant

.............

FROELICH, J.

{¶ 1} James Mitchell, Jr., pled guilty to robbery in violation of R.C. 2911.02(A)(3),

a third-degree felony, for which he was sentenced to three years in prison, the maximum

sentence for the offense. Mitchell was also ordered to pay restitution of $1,037.40, court -2-

costs, and court-appointed counsel fees. Mitchell appeals from his conviction.

{¶ 2} Mitchell=s original appellate counsel filed a brief pursuant to Anders v.

California,

,

,

(1967), stating that after

thoroughly examining the record and the law, she found no issues upon which to base an

appeal. Counsel set forth one potential assignment of error, namely that the imposition

of a maximum sentence was not supported by the record and by statutory factors. By

entry, we informed Mitchell that his attorney had filed an Anders brief on his behalf and

granted him 60 days from that date to file a pro se brief. No pro se brief was filed.

{¶ 3} After an independent review of the record, we concluded that the record

revealed at least one potentially meritorious issue for review related to the court’s order

that Mitchell pay court-appointed counsel fees as part of his sentence. We appointed

new counsel and instructed new counsel to review the entire record and raise any issues

that counsel believes have arguable merit.

{¶ 4} Mitchell now raises two assignments of error on appeal, which we will

address in reverse order.

Imposition of a Maximum Sentence

{¶ 5} Mitchell’s second assignment of error states, “The Trial Court Erred in

Sentencing Mr. Mitchell to the Maximum Sentence of Three Years.”

{¶ 6} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021,

, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory policies that apply to every felony offense, including -3-

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard,

,

,

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

,

,

.

{¶ 7} R.C. 2929.11 requires trial courts to be guided by the overriding principles of

felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need

for incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.”

R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.”

{¶ 8} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense. These factors include

whether the physical or mental injury to the victim was exacerbated because of the

physical or mental condition of the victim; serious physical, psychological, or economic

harm suffered by the victim as a result of the offense; whether the offender’s relationship

with the victim facilitated the offense; and whether the offender committed the offense for

hire or as a part of an organized criminal activity.

{¶ 9} R.C. 2929.12(C) sets forth four factors indicating that an offender’s conduct -4-

is less serious than conduct normally constituting the offense, including whether the victim

induced or facilitated the offense, whether the offender acted under strong provocation,

whether, in committing the offense, the offender did not cause or expect to cause physical

harm to any person or property, and the existence of substantial grounds to mitigate the

offender’s conduct, although the grounds are not enough to constitute a defense. R.C.

2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the

offender’s likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the

sentencing court to consider the offender’s military service record.

{¶ 10} The Ohio Supreme Court recently held that an appellate court must apply

the standard of review set forth in R.C. 2953.08(G)(2) in reviewing a felony sentence.

State v. Marcum, Slip Opinion No.

. Under that standard, “an appellate

court may vacate or modify a felony sentence on appeal only if it determines by clear and

convincing evidence that the record does not support the trial court’s findings under

relevant statutes or that the sentence is otherwise contrary to law.” Id. at ¶ 1; see also

State v. Rodeffer,

,

(2d Dist.) (applying the standard of

review in R.C. 2953.08(G)(2) to felony sentencing). R.C. 2953.08(G)(2) expressly

addresses findings under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C.

2929.20(I).

{¶ 11} The supreme court acknowledged that some sentences do not require a

trial court to make any of the findings that R.C. 2953.08(G) specifically addresses.

Marcum at ¶ 23. It nevertheless held that “it is fully consistent for appellate courts to

review those sentences that are imposed solely after consideration of the factors in R.C.

2929.11 and R.C. 2929.12 under a standard that is equally deferential to the sentencing -5-

court. That is, an appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.”

{¶ 12} Mitchell’s sentence was imposed after consideration of R.C. 2929.11 and

R.C. 2929.12; no statutory findings were required. Nevertheless, in accordance with

Marcum, we review the trial court’s sentence under the deferential standard articulated in

R.C. 2953.08(G).

{¶ 13} According to the bill of particulars and police reports, at approximately 11:35

a.m. on April 24, 2014, Mark Welsh was riding his bicycle on a bike path when he

encountered Mitchell. Mitchell asked Welsh, “What are you looking at” and punched

Welsh in the head. Welsh reported that Mitchell repeatedly struck him in the face and

head and tried to take his (Welsh’s) bicycle and backpack. Welsh did not allow Mitchell

to take his property. Mitchell fled when a witness yelled to him to stop and indicated that

she was calling the police. Responding officers noticed redness on the left side of

Welsh’s face, and Welsh complained of loose teeth.

{¶ 14} Mitchell was originally charged with robbery in violation of R.C.

2911.02(A)(2), a second-degree felony. He pled guilty to a reduced charge of robbery,

a third-degree felony. Mitchell was eligible for community control and faced a maximum

sentence of three years in prison.

{¶ 15} A presentence investigation was performed prior to sentencing. Mitchell

told the presentence investigator that he encountered Welsh while he (Mitchell) was

walking on the bike trail with his girlfriend. Mitchell reported that, as Welsh rode toward

them on his bike, Mitchell believed that Welsh was going to grab his girlfriend. Mitchell -6-

yelled to Welsh and asked him (Welsh) if he was going to grab the girlfriend; Welsh denied

that he was going to. Mitchell accused Welsh of lying and punched Welsh, and the two

fought. Mitchell stated that he was under the influence of marijuana, “triple C’s”, Vicodin,

and Percocet at the time. Mitchell denied trying to rob Welsh of his bicycle and

backpack.

{¶ 16} Mitchell was 20 years old at the time of the offense in April 2014. He had

three adult convictions at the time of sentencing: 1) misdemeanor unauthorized use of

property in April 2013, for which he received a 30-day suspended jail sentence; 2)

misdemeanor assault in August 2013, for which he received 90 days in jail; and 3)

misdemeanor assault in May 2014 (after the instant offense), for which he received 180

days in jail.

{¶ 17} Mitchell has a juvenile record dating back to 2004, when he was 10 years

old. At age 10, he was adjudicated for driving without a license and burglary. At age

12, he was adjudicated for criminal damaging and assault. At age 14, he was

adjudicated for tampering with evidence, carrying a concealed weapon, and vandalism.

At age 16, he was adjudicated for criminal trespassing. At various times, Mitchell was

placed on house arrest, received suspended detentions, was placed in detention, and

received a suspended commitment to the Department of Youth Services. He had

numerous probation violations throughout his involvement with the juvenile court. A

couple of additional allegations were dismissed by the State.

{¶ 18} Mitchell reported that he has had a substance abuse issue since age 16.

He stated that he uses a variety of substances, including marijuana, “triple C’s”, Vicodin,

Percocet, and Klonopins. Mitchell further reported that he had never had a mental health -7-

assessment, but he has a temper problem and hears voices. Mitchell stated that he had

been prescribed medication for mental health issues by his medical doctor, but Mitchell

had not seen his doctor for approximately 18 months.

{¶ 19} Mitchell was unemployed, had never been employed, and had no direct

sources of income. He reported that his mother, sister, and girlfriend assist him

financially.

{¶ 20} At sentencing, the trial court noted Mitchell’s criminal history and imposed

the maximum sentence of three years in prison. Upon review of the record, we cannot

conclude that this sentence was either an abuse of discretion or clearly and convincingly

unsupported by the record.

{¶ 21} Although Mitchell was only 20 years old at sentencing, he had been

adjudicated for several juvenile offenses, including assault and carrying a concealed

weapon. Two of his three adult convictions were for assault; his third adult conviction

was for unauthorized use of property, a theft offense. The facts underlying Mitchell’s

offense in this case, as presented in the bill of particulars, supported a conclusion that

Mitchell had caused physical harm in committing the robbery; Mitchell faced a maximum

of eight years in prison on the original charge. The record reflects that Mitchell might

benefit from substance abuse and mental health treatment; however, given Mitchell’s

criminal history and his conduct in this case, the court’s decision to impose a three-year

sentence was not clearly and convincingly unsupported by the record.

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

Court-Appointed Counsel Fees

{¶ 23} In his first assignment, Mitchell claims that the trial court erred when it -8-

ordered him to pay court-appointed counsel fees as costs. The trial court’s judgment

entry stated:

Defendant is ORDERED to pay all costs of prosecution, Court appointed

counsel costs, and any fees permitted pursuant to law. If the defendant

fails to pay that judgment or fails to timely make payments toward that

judgment under a payment schedule approved by the court, the court may

order the defendant to perform community service in an amount of not more

than forty hours per month until the judgment is paid or until the court is

satisfied that the defendant is in compliance with the approved payment

schedule. If the court orders the defendant to perform the community

service, the defendant will receive credit upon the judgment at the specified

hourly credit rate per hour of community service performed, and each hour

of community service performed will reduce the judgment by that amount.

The trial court did not inform Mitchell at sentencing that he would be required to pay court-

appointed counsel fees.

{¶ 24} The State concedes error by the trial court, citing R.C. 2941.51(D), State v.

Breneman, 2d Dist. Champaign No. 2013-CA-15,

, and State v.

Lambert, 2d Dist. Clark No. 2015-CA-5,

. Based on this

authority and others, we agree. As we stated in Lambert:

“[R.C. 2941.51(D)] confers a right of action on a county for any claim it has

for reimbursement of court-appointed counsel fees and expenses, ‘if the

person has, or may reasonably be expected to have, the means to meet

some part of the cost of the services rendered to the person.’ ” Yet, “[t]he -9-

right of action R.C. 2941.51(D) confers must be prosecuted in a civil action.”

In fact, the statute specifically states that “fees and expenses approved by

the court under this section shall not be taxed as part of the costs * * *.”

R.C. 2941.51(D). “Therefore, requiring a defendant to pay his court-

appointed attorney fees as part of his sentence is not condoned under R.C.

2941.51.” The Court may enter a civil judgment regarding appointed

counsel fees if it determines that the offender has the ability to pay.

However, the collection must be pursued by civil process, not enforced in

the criminal proceeding.

(Citations omitted.) Lambert ¶ 19. We have further held that a trial court errs when it

orders a defendant to pay court-appointed counsel fees without notifying the defendant

of that requirement at sentencing and determining the defendant’s ability to pay those

fees. State v. Hudson, 2d Dist. Clark No. 2011 CA 100,

.

{¶ 25} Here, the trial court did not inform Mitchell at sentencing that he would be

required to pay court-appointed counsel fees. In addition, when imposing that

requirement in the judgment entry, the trial court treated the court-appointed counsel fees

as costs, and indicated that Mitchell could be required to perform community service if he

failed to pay those fees in accordance with a court-approved payment schedule. The

trial court thus erred in imposing court-appointed counsel fees in the judgment entry.

{¶ 26} Mitchell’s first assignment of error is sustained.

Conclusion

{¶ 27} The trial court’s order requiring Mitchell to pay court-appointed counsel fees

will be vacated. In all other respects, the trial court’s judgment will be affirmed. -10-

.............

DONOVAN, P.J. and FAIN, J., concur.

Copies mailed to:

Ryan A. Saunders Richard L. Kaplan James Mitchell, Jr. Hon. Douglas M. Rastatter