[Cite as State v. Johnson,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2015-CA-24 : v. : T.C. NO. 14CR215 : RICKY D. JOHNSON : (Criminal appeal from : Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the ___29th___ day of ____July____, 2016.

...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, 5540 Far Hills Avenue, Suite 202, Dayton, Ohio 45429 Attorney for Defendant-Appellant

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

DONOVAN, P.J.

{¶ 1} Defendant-appellant Ricky D. Johnson appeals his conviction and sentence

for the following offenses, to wit: 1) having weapons while under disability, in violation of

R.C. 2923.13(A)(3)(B), a felony of the third degree; 2) two counts of trafficking in heroin,

in violation of R.C. 2925.03(A)(1)(C)(6)(c), both felonies of the third degree; 3) two counts -2-

of possessing criminal tools, in violation of R.C. 2923.24(A)(C), both felonies of the fifth

degree; and 4) one count of endangering children, in violation of R.C.

2919.22(A)(E)(2)(a), a misdemeanor of the first degree. Both counts of possessing

criminal tools were accompanied by forfeiture specifications.

{¶ 2} Johnson filed a motion for leave to file a delayed notice of appeal with this

Court on July 23, 2015. In a decision and entry issued on August 18, 2015, we sustained

Johnson’s motion for leave to file notice of a delayed appeal.

{¶ 3} On October 2, 2014, the State filed a seventeen count indictment charging

Johnson with the following offenses: six counts of possessing criminal tools, all felonies

of the fifth degree; three counts of trafficking in heroin, all felonies of the third degree; two

counts of having weapons while under disability, both felonies of the third degree; two

counts of possession of cocaine, both felonies of the fifth degree; two counts of receiving

stolen property, both felonies of the fifth degree; one count of aggravated possession of

drugs, a felony of the fifth degree; and one count of endangering children, a misdemeanor

of the first degree. The indictment also included specifications for forfeiture of an

automobile, a cellular phone, and a pair of underpants that had been modified to conceal

and transport contraband.

{¶ 4} At his arraignment on October 6, 2014, Johnson pled not guilty to all of the

charges contained in the indictment. Thereafter on December 17, 2014, Johnson pled

guilty to the following charges: two counts of trafficking in heroin, both felonies of the third

degree; one count of having a weapon while under disability, a felony of the third degree;

two counts of possessing criminal tools, both felonies of the fifth degree; and one count

of endangering children, a misdemeanor of the first degree. Johnson also agreed to -3-

forfeiture of the automobile and the modified underpants. In exchange for his guilty

pleas, the State agreed to dismiss all of the remaining counts and forfeiture specifications.

We also note that Johnson and his counsel stipulated that none of the offenses were

allied offenses of similar import. At the conclusion of the plea hearing, the trial court

ordered the probation department to generate a presentence investigation report (PSI).

{¶ 5} Initially, disposition was scheduled to occur on January 12, 2015; however,

it was continued to January 15, 2015. On that day, the trial court sentenced Johnson to

thirty-six months in prison for having a weapon while under disability, thirty months in

prison for each count of trafficking in heroin, ten months in prison for each count of

possessing criminal tools, and six months in prison for child endangerment. The trial

court ordered that the sentences for having a weapon while under disability and both

counts of trafficking in heroin be served consecutive to one another for an aggregate

sentence of eight years in prison. All remaining counts were ordered to run concurrently

to the aggregate sentence. The trial court also imposed fines and court costs against

Johnson, and ordered him to pay back the costs of his court appointed counsel at a rate

of $50.00 per month once he was released from prison.

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

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

{¶ 8} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING MR.

JOHNSON TO AN AGGREGATE EIGHT YEAR PRISON SENTENCE.”

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

sentenced him to an aggregate sentence of eight years in prison. Specifically, Johnson

argues that the trial court failed to properly consider the purpose and principles of -4-

sentencing pursuant to R.C. 2929.11 and R.C. 2929.12 when it imposed an eight-year

prison term. We note that Johnson does not challenge the trial court’s imposition of

consecutive sentences nor the efficacy of the findings made by the court to support the

consecutive sentences.

{¶ 10} In State v. Exon, 2d Dist. Clark No. 2014-CA-106,

, we

recently stated the following regarding felony sentencing:

“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

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

, 2011–Ohio–3864,

(2d Dist.),

citing State v. Mathis,

, 2006–Ohio–855,

.

{¶ 11} The principles and purposes of felony sentencing are set forth in R.C.

2929.11. The statutory “seriousness” and “recidivism” factors that guide a court's

sentencing discretion are found in R.C. 2929.12. We have found that a trial court need

not expressly state that it has considered R.C. 2929.11 and R.C. 2929.12. See,

e.g., State v. Guy, 2d Dist. Clark Nos. 2015–CA–28, 2015–CA–29, 2016–Ohio–

425, ¶ 16, quoting State v. Neff, 2d Dist. Clark No. 2012–CA–31, 2012–Ohio–6047, ¶ 5.

In any event, the trial court here specifically referenced both statutes by number during -5-

the sentencing hearing, and it explicitly considered and applied both of them to the facts

before it. (Sentencing Tr. at 56-59, 60-62). It also stated in its sentencing entry that it

had considered the factors set forth in R.C. 2929.12 and the principles and purposes of

sentencing found in R.C. 2929.11. (Doc. # 101 at 6, 7, 8).

{¶ 12} At the sentencing hearing, the trial court made the following pertinent

findings:

The Court: *** With regard to sentencing, on the Counts, in terms of non-

financial sentencing but residential sentencing, the Court finds that Counts

One, Nine, Ten, Fourteen, Sixteen, and Seventeen are not allied offenses

of similar import. In imposing sentence[,] the Court considered and applied

the purposes and principles of sentencing set forth in [R.C.] 2929.11

divisions A, B, and C. The Court also considered seriousness of the

conduct, likelihood of recidivism, and lack of service in the Armed Forces.

Upon evaluation of the factors, the Court finds that as far as

seriousness factors go, that with regard to more serious, the Defendant

possessed, stole a high-powered firearm and a bulletproof vest, and

assisted others in exchanging those firearms to drug dealers for heroin and

large sums of money. And that the Defendant engaged in a firearm/vest

for drugs swap in the immediate presence of his two-year old daughter.

And that the Defendant committed the offense for hire. Meaning, he was

facilitating a heroin addiction of his own and his other co-defendants. And

as part of organized criminal activity. That being with co-defendants

Ashley Saunders and David Skapik. -6-

With regard to less serious factors, the Court finds that there are

substantial grounds to mitigate the Defendant’s conduct. Although the

grounds are not enough to constitute a defense. Specifically, that the

Defendant successfully worked with law enforcement to enable officers in

retrieving the high-powered firearms and bulletproof vest through the

execution of search warrants.

The Court concludes that the factors [which] establish Defendant’s

conduct is more serious outweigh factors establishing [that] Defendant’s

conduct is less serious. With regard to recidivism and more likely to

commit future crimes, the Court finds that the Defendant – Court finds that

the Defendant has previously been terminated from post-release control

just five months before committing the offenses leading to his convictions

and the case at bar.

Court finds that the Defendant has a history of criminal convictions.

He has not responded favorably to sanctions previously imposed for the

criminal convictions. And that he has demonstrated a pattern of drug

abuse that is related to the offense. And he refuses to acknowledge that

he has that demonstrative pattern or refuses treatment for his drug abuse.

I want to explain to you what I mean by that, Mr. Johnson. What I

mean by that is, not that [I] don’t believe that you want help, but the Court

believes that based on all the opportunities that we talked about, with regard

to your avenues for trying to get help, that you refused to take advantage of

those or you chose not to. Do you understand what I’m saying? -7-

Johnson: Yes, sir.

The Court: With regard to less likely to commit future crimes, the Court finds

that the Defendant shows genuine remorse for the offense involving the

stolen firearms and bulletproof vest. The Court concludes that the factors

establishing the Defendant’s recidivism is more likely outweigh factors

establishing Defendant’s recidivism is less likely. The Court considered

the Defendant’s military service record. Finds that he has no military

service record.

***

With regard to Counts Nine and Ten, the Court finds that the

Defendant is being sentenced for a specified felony drug offense in violation

of Chapter 2929 of the Revised Code for which a presumption of prison is

specified. The Court finds that [R.C.] 2929.13(D)(1) applies to the

sentencing analysis. It sets forth that it is presumed that a prison term is

necessary in order to comply with the purposes and principles of

sentencing.

The Court finds that a community control sanction or a combination

of community control sanctions would not adequately punish the Defendant

and protect the public from future crimes because the applicable factors

under [R.C.] 2929.12 indicating a lesser likelihood of recidivism do not

outweigh the applicable factors under that section indicating a greater

likelihood of recidivism.

The Court also finds that a community control sanction or a -8-

combination of community control sanctions would demean the seriousness

of the offense because one or more of the factors under 2929.12 that

indicate the Defendant’s conduct was less serious than the conduct

normally constituting the offense are either not applicable or do not

outweigh the applicable factors under that section that indicate that the

Defendant’s conduct was more serious than conduct normally constituting

the offense.

With those findings, the Court finds that Ohio law requires the Court

to impose a prison term on Counts Nine and Ten upon the Defendant.

Court also finds Defendant is not amenable to available community control

sanction at this time. The Court notes that no reasonable alternative to

prison are available in taking into account the inability to follow conditions

of bond, the Defendant’s criminal history, and the Court’s lack of confidence

that the Defendant will follow conditions of community control.

The Court also finds it significant, in reaching its conclusion, that

imposition of a term of imprisonment would achieve the purposes and

principles of sentencing through the State’s recommendation that prison be

imposed. That the Defendant was on post-release control. And while on

post-release control, subject to a residential search by the APA officials,

was found to be housing a fugitive and was found to be in possession of a

soft-sized baggy of marijuana and heroin residue. And also that the

Defendant initially chose to place stolen high-powered firearms and a

bulletproof vest into the hands of drug dealers that could have posed a great -9-

risk of harm to any undercover narcotics officer, confidential informant,

uniformed officers, or an innocent bystander in the vicinity of the drug dealer

at an inopportune time.

The Court was also persuaded by the fact that the Defendant

regularly traveled to a residence and bought heroin while in the immediate

vicinity of his two-year old daughter. And the Court also finds significant

that after the sentencing hearing on January 12[, 2015,] that the Defendant

was reported to have been disruptive and shouted obscenities at jail staff

members and threatened to kill a jail staff member. All while he had

returned from this Court’s hearing.

{¶ 13} The record reflects that Johnson has a lengthy history of criminal

convictions for, among other things, numerous receiving stolen property charges, theft,

disorderly conduct, multiple drug convictions involving both possession and trafficking,

and two OVIs. Additionally, at the time that Johnson’s PSI was being generated, he had

an active warrant for a traffic offense in Miami County Municipal Court. In light of the

foregoing, we find that the trial court properly considered the purposes and principles of

sentencing pursuant to R.C. 2929.11 and R.C. 2929.12 when it imposed an eight-year

prison term.

{¶ 14} Lastly, although not argued or otherwise challenged by Johnson, the trial

court made all of the findings for consecutive sentences, including two of the alternative

findings under R.C. 2929.14(C)(4)(b) and (c). (Sentencing Tr. at 64–65). Specifically,

the trial court found that at least two or more of his crimes were committed as a course of

conduct and the harm caused by two or more of the multiple offenses was so great or -10-

unusual that no single prison term would adequately reflect the seriousness of his

conduct.

The trial court also found Johnson’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from future

crime committed by him.

We review those findings under the standard set forth

in R.C. 2953.08(G)(2), which authorizes us to vacate Johnson's consecutive sentences if

we clearly and convincingly find that the record does not support them. See State v.

Marcum, Slip Opinion No. 2016–Ohio–1002.

{¶ 15} As evidence of mitigation, Johnson cites the fact that he cooperated with

law enforcement regarding the return of the stolen firearms and bulletproof vest, testified

against his co-defendants, and that he is a drug abuser who has never received the

proper help to cure his addiction. As noted above, the trial court found no “genuine

remorse,” however, and essentially concluded that Johnson's only real concern was for

himself. Even if we accept the “mitigating” facts cited by Johnson, the record does not

clearly and convincingly fail to support the trial court's consecutive-sentence findings. To

the contrary, the record overwhelmingly supports them. We also note that the trial court

stated that it considered Johnson’s mitigation evidence when it imposed an eight-year

aggregate sentence instead of the maximum sentence of eleven and one-half years it

could have imposed.

{¶ 16} Having reviewed that evidence, along with the sentencing transcript and the

PSI, we harbor no doubt that the record supports the trial court's consecutive-sentence

findings that consecutive terms are necessary to protect the public from future crime or

to punish Johnson and that consecutive sentences are not disproportionate to the

seriousness of his conduct and to the danger Johnson poses to the public. The record -11-

also supports the trial court's additional finding under R.C. 2929.14(C)(4)(c) that

Johnson's extensive history of criminal conduct demonstrates that consecutive sentences

are necessary to protect the public from future crime. Because the record supports that

finding, we need not address whether the record supports the trial court's alternative

finding under R.C. 2929.14(C)(4)(b). That finding was unnecessary in light of our

determination that the trial court's finding under R.C. 2929.14(C)(4)(c) was proper. See

State v. Dixon, 2d Dist. Clark No. 2015-CA-67,

.

{¶ 17} In Marcum, the Ohio Supreme Court made clear that the standard

contained in R.C. 2953.08(G)(2) applies to all felony sentencing-term challenges. In the

instant case, the trial court properly considered the criteria found in R.C.

2929.11 and R.C. 2929.12, and the record does not clearly and convincingly fail to

support its decision to impose non-maximum consecutive sentences. While a sentence

also may be vacated under R.C. 2953.08(G)(2) if it is “contrary to law,” Johnson makes

no such argument in this case. In any event, we are unable to conclude that the

sentence he received was contrary to law.

{¶ 18} Johnson’s first assignment of error is overruled.

{¶ 19} Johnson’s second assignment of error is as follows:

{¶ 20} “THE TRIAL COURT ERRED BY DISAPPROVING SHOCK

INCARCERATION AND INTENSIVE PRISON PROGRAMS WITHOUT MAKING

FINDINGS THAT GIVE REASONS FOR DISAPPROVAL.”

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

failed to make the necessary findings to support its decision disapproving him for shock

incarceration and intensive program prison. -12-

{¶ 22} At the sentencing hearing, the trial court made the following statement:

After reviewing the nature and circumstances of your offense, your conduct

while on bond, your [PSI], your criminal history, your prior service of

imprisonment, and your conduct while residing at the Tri-County Regional

Jail, the Court does not recommend and disapproves you for placement in

an intensive program prison. Disapproves you for placement in shock

incarceration. ***

(Sentencing Tr. at 63).

{¶ 23} The judgment entry, Dkt. 101, states as follows:

COURT SENTENCING RECOMMENDATIONS

After a review of: the nature and circumstances of the offense(s) for which

the Defendant was being sentenced; the Defendant’s conduct while on

bond; the [PSI]; the Defendant’s criminal history; the Defendant’s prior

service of imprisonment; [and] the Defendant’s conduct while residing at the

Tri-County Regional Jail[,] ***

Based on those factors, the trial court disapproved of Johnson’s participation in either

shock incarceration or intensive program prison.

{¶ 24} The sentencing statute, R.C. 2929.19(D) provides as follows:

The sentencing court, pursuant to division (I)(1) of section 2929.14 of the

Revised Code, may recommend placement of the offender in a program of

shock incarceration under section 5120.031 of the Revised Code or an

intensive program prison under section 5120.032 of the Revised Code,

disapprove placement of the offender in a program or prison of that nature, -13-

or make no recommendation. If the court recommends or disapproves

placement, it shall make a finding that gives its reasons for its

recommendation or disapproval. (Emphasis added).

{¶ 25} In State v. Blessing, 2d Dist. Clark No. 2011 CA 56, 2013–Ohio–392, we

remanded the case for resentencing when the trial court simply stated, “in the interest of

justice and truth in sentencing, it is hereby Ordered that the defendant serve her entire

stated prison term in the Ohio State Penitentiary. The Ohio Department of Corrections

shall not place this defendant in an IPP (Intensive Prison Program), transitional control, a

half-way house, or any other program or institution unless this Court upon

reconsideration, expressly and in writing authorizes the same.” Id. at ¶ 45. We

concluded that:

“R.C. 2929.19(D) requires more than that reasons can be found in

the record to support the trial court's disapproval of the programs; the

statute requires that the trial court, if it shall make a recommendation, must

‘make a finding that gives its reasons for its recommendation or

disapproval.’ This statutory requirement, imposed on the trial court, is not

satisfied by an appellate court finding in the record reasons that the trial

court could have given, or might have given, for disapproval.” State v.

Allender, 2d Dist. Montgomery No. 24864, 2012–Ohio–2963, ¶ 22. “The

statute requires that the trial court provide its reasons for disapproving

shock incarceration or the intensive program prison, not merely that the

record supports reasons for disapproval that the trial court might have had,

but did not express.” Id. at ¶ 26. -14-

Blessing, at ¶ 47.

{¶ 26} In Allender, supra, we reviewed and rejected as distinguishable or

inapplicable the allegedly conflicting decisions of the Fifth, Eleventh and Twelfth District

Court of Appeals. State v. Jackson, 5th Dist. Knox Nos. 05 CA 46, 05 CA 47, 2006–Ohio–

3994; State v. Tucker, 12th Dist. Butler No. CA2011–04–067, 2012–Ohio–50; State v.

Lowery, 11th Dist. Trumbull No. 2007–T–0039, 2007–Ohio–6734. See Allender at ¶ 23–

25. The only other case cited by the State as conflicting with our precedent is State v.

Daniels, 12th Dist. Fayette No. CA2014–05–010, 2015–Ohio–1346. The court

in Daniels followed the reasoning in Tucker, which did not find any error when the court

recited numerous facts on the record for its sentencing decision. As we stated

in Allender, the facts are distinguishable when the trial court refers to various general

principles that it considered, and to various sources of information that it reviewed, but

does not make any specific factual findings to explain its disapproval of shock

incarceration or the intensive program prison. “[T]he statute requires that the trial court

give its reasons for disapproval, not merely that reasons for disapproval exist.” Allender at

¶ 23.

{¶ 27} Recently, in State v. Matthews, 2d Dist. Montgomery No. 26405, 2015-Ohio-

3388, we remanded the case for resentencing, stating the following:

In the case before us, there is no dispute that Matthews was eligible

for shock incarceration or intensive program prison, and the trial court failed

to make findings identifying its reasons for disapproving placement in a

program of shock incarceration or intensive program prison. The trial court's

summary conclusion that the disapproval is based on the court's review of -15-

Mr. Matthews' criminal history, the PSI and the facts and circumstances of

the offense and any victim impact statement and for the reasons the court

imposed the prison sentence, does not constitute a “finding that gives its

reasons for * * * disapproval” within the contemplation of R.C. 2929.19(D).

Without that finding, we conclude that the judgment of the trial court does

not satisfy the requirement of the statute.

Id. at ¶ 14.

{¶ 28} At Johnson’s sentencing hearing on January 15, 2015, the trial court made

the following specific findings on the record which clearly support its decision for

disapproving Johnson’s placement in a program of shock incarceration or intensive

program prison:

Trial Court: Turning to the – what I’m going to call Court’s Exhibits 1

through 5, is Tri-County Regional Jail reports concerning your conduct while

at the jail. And Court Exhibit 1 is that there was a plastic baggy containing

an unknown black substance and a syringe found in your pod. Court’s

Exhibit 2 was a description of a syringe taped under your bed. And the

dates of those were 9-14-14 and 9-20-14.

***

In Court’s Exhibit 3, after you had been placed in jail. So you were

placed in jail on January 9, 2015. On January 10[, 2015,] your pod was

searched because there was a smoke smell and a cigarette was found

under the bottom bunk. Half a cigarette was found under the bottom bunk

of your cell. And the officers also found a crushed soap [bar] in a wet sock. -16-

And then fight club rules written on the wall.

***

The other version is that you returned to court – you returned from

court at the jail. And you had been unsteady coming through the doors.

Required checking by medical. The nurse felt that you should be housed

in booking and placed on medical watch. The report says – and I’m going

to just read it. [“Johnson] immediately became disruptive and began

shouting I was f***ing with him. I told him the nurse wanted him on medical

watch. And he then began shouting at me. Removed his shirt and began

making threats toward me. He shouted at me to come into his cell and he

would kick my ass and he was going to kill me.”

[“Johnson] said when he was on ankle monitoring, he researched

where I lived. And he knows who my life is. And he will kill me and my

family. He continued to shout, he knows where I live and he is coming to

see me. He continued to make threats until the court returns from Madison

County came into the booking area.[”] (sic).

***

And when the Court sees that you have trouble following bond. For

whatever reason. Or the Court sees that you have difficulties in the jail.

Whatever those difficulties are. Those are negative factors for the Court to

examine. For the Court to say that this guy is ready for probation right off

the bat.

*** -17-

But then we look at the negative side. And we look at the type of

offense that was committed. We look at, what I’m going to call it, your

conduct while on bond. We look at the reports that I have from the jail.

And we look at your criminal history. And that is what the Court is talking

about when we say balancing certain factors.

Sentencing Tr. at 32-41.

{¶ 29} Similar to the defendant in Matthews, it is undisputed that Johnson was

eligible for shock incarceration or intensive program prison. However, unlike the trial

courts in Matthews and Allender, the record establishes that the trial court here made

sufficient findings identifying its specific reasons for disapproving Johnson’s placement in

a program of shock incarceration or intensive program prison. The trial court concluded

that its rationale for disapproval was based on “the nature and circumstances of the

offense(s) for which the Defendant was being sentenced; the Defendant’s conduct while

on bond; the [PSI]; the Defendant’s criminal history; the Defendant’s prior service of

imprisonment; [and] the Defendant’s conduct while residing at the Tri-County Regional

Jail.” As discussed above, the trial court’s rationale is supported by numerous facts set

forth by the trial court on the record, namely Court’s Exhibits 1 through 5. In our view,

this is more than just a “summary conclusion” and constitutes a “finding that gives its

reasons for * * * disapproval” within the contemplation of R.C. 2929.19(D). Here, unlike

the court in Allender, the trial court provided specific reasons for disapproving Johnson’s

placement in a program of shock incarceration or intensive program prison. Upon

review, we therefore conclude that the judgment of the trial court satisfies the

requirements of R.C. 2929.19(D). -18-

{¶ 30} Johnson’s second assignment of error is overruled.

{¶ 31} Johnson’s third and final assignment of error is as follows:

{¶ 32} “THE TRIAL COURT ERRED IN IMPOSING A COST AND FEE

REPAYMENT SCHEDULE TO BE COMPLETED AFTER MR. JOHNSON’S RELEASE

FROM PRISON.”

{¶ 33} In his final assignment, Johnson argues that the trial court erred when it

ordered him to pay court costs, fines, and his court-appointed counsel fees through a

post-prison repayment schedule set at $50.00 per month. Based upon our recent

holding in State v. Springs,

,

(2d Dist.), Johnson argues

that such fees must be pursued by a county against a defendant in a separate civil action.

Therefore, he asks us to vacate the portion of the judgment entry ordering him to pay

court costs, fines, and his court-appointed counsel legal fees.

{¶ 34} Johnson’s judgment entry of conviction states in pertinent part:

FINANCIAL OBLIGATION PAYMENT SCHEDULE

Defendant shall pay court costs, fine, and court-appointed legal fees at a

minimum of $50.00 per month beginning the second month after release

from confinement and due the 28th of each month thereafter. Clerk shall

apply monies collected to court costs, fine, and court-appointed legal fees

in that order.

{¶ 35} In Springs, which also involved the Champaign County Court of Common

Pleas, we held that although the trial court, following defendant's guilty plea, could

properly find defendant obligated to repay court-appointed counsel fees and enter

judgment for them, the obligation to reimburse appointed-counsel fees could not properly -19-

be blended into the court's post-confinement repayment schedule. Id at 12. Rather, if

the county desired to enforce the reimbursement to which the trial court's findings entitled

it, it was required to pursue civil execution collection proceedings. Id; see R.C.

2941.51(D).

{¶ 36} In the case at bar, the State does not challenge Johnson’s argument that it

was improper for the trial court to blend appointed-counsel fees into a post-confinement

repayment schedule. The State, however, contends that the trial court was well within

its authority to order Johnson to pay court costs and fines through a post-confinement

repayment schedule set at $50.00 per month.

{¶ 37} R.C. § 2949.111(A)(1) defines “court costs” as “any assessment that the

court requires an offender to pay to defray the costs of operating the court.” R.C.

2949.111(A)(3) defines “reimbursement” as “any reimbursement for the costs of

confinement that the court orders an offender to pay pursuant to section 2929.28 of the

Revised Code, any supervision fee, any fee for the costs of house arrest with electronic

monitoring that an offender agrees to pay, any reimbursement for the costs of an

investigation or prosecution that the court orders an offender to pay pursuant to section

2929.71 of the Revised Code, or any other costs that the court orders an offender to pay.”

{¶ 38} We review a trial court’s imposition of a repayment schedule for court costs

under an abuse of discretion standard. See State v. Gullett, 4th Dist. Gallia No.

09CA4, 2010–Ohio–2785, ¶ 10. Pursuant to R.C. 2947.23, the trial court was required

to “include in the sentence the costs of prosecution and render a judgment against the

defendant for such costs.” However, court costs are distinct from criminal punishment.

This is because “although costs in criminal cases are assessed at sentencing and are -20-

included in the sentencing entry, costs are not punishment, but are more akin to a civil

judgment for money.” State v. Threatt,

, 2006–Ohio–905,

. An order to pay court costs is essentially a judgment on a contractual debt

where the court is the creditor and the party ordered to pay court costs is the debtor. State

v. Lamb,

,

,

(2d Dist.). As

such, the creditor, i.e., the court, can collect only the money it is due by the methods

provided for the collection of civil judgments.

{¶ 39} In Threatt, the Ohio Supreme Court held that “the state may use any

method available for collection of a civil judgment for money.”

, 2006-

. Here, the trial court clearly had the authority to

impose court costs against Johnson at sentencing. Further, once Johnson was released

from prison, the State or the Department of Rehabilitation and Corrections could then

have implemented one of many civil collection methods to collect the costs generated

during his case. However, the trial court did not have the authority to enforce monetary

obligations except through civil enforcement mechanisms. State v. Springs, 2015-Ohio-

5016,

, ¶ 13 (2d Dist.). Since costs from a criminal action can only be

collected through civil enforcement mechanisms, the trial court erred when it ordered

Johnson to remit the costs from his criminal action through the fee schedule it created

and included in his judgment entry of conviction. If Champaign County, or the clerk

thereof, desires to enforce the reimbursement to which the trial court's findings entitle it,

it must pursue civil execution collection proceedings. Id. at ¶ 12.

{¶ 40} Unlike court-appointed attorney’s fees and costs, fines are punitive in

nature. State v. Swift, 2d Dist. Montgomery No. 20544,

. Under -21-

R.C. 2947.14, if, as part of a sentence, the trial court orders an offender to pay a fine, but

the offender fails to pay the fine, the court may hold a hearing pursuant to R.C.

2947.14(A) and (B). At this hearing, the offender has the right to be represented by

counsel and to testify and present evidence as to his ability to pay the fine. If the court

determines at the hearing that the offender is able to pay the fine, this determination shall

be supported by findings of fact that indicate the offender's income, assets, and debt, as

presented by the offender, and the offender's ability to pay. If the offender then fails to

pay, the court may issue a warrant for the offender's arrest. The court must then afford

the offender another hearing “on the first regularly scheduled court day following the

arrest,” unless waived by the offender. R.C. 2947.14(C). If the court then finds that the

offender is still able to pay the fine but refuses, it may incarcerate the offender. If the

court chooses to incarcerate the offender, the court must give the offender credit against

the fine at the rate of $50.00 per day.

{¶ 41} Accordingly, because the fines that were imposed upon Johnson at the time

of sentencing were punitive in nature, the trial court was within its authority to include

them in the repayment schedule it included in his judgment entry of conviction. If

Johnson was later discovered to be in arrears in regards to the payment of his fines at

the scheduled rate of $50.00 per month beginning the second month after his release

from prison, then the trial court can hold a hearing pursuant to R.C. 2947.14 in order to

determine his ability and/or willingness to pay said fines. However, the trial court must

separate the amount of fines owed by Johnson from the amount of costs and attorney’s

fees because while the court can attempt to collect the former itself, the latter two must

be collected through a civil proceeding brought by the clerk of courts or the State after -22-

Johnson is released from prison.

{¶ 42} Johnson’s third assignment of error is sustained in part and overruled in

part.

{¶ 43} Johnson’s third assignment of error having been sustained in part and

overruled in part, we hereby modify the trial court's final judgment entry by vacating and

excising only the words “costs” “and court appointed legal fees” from the “financial

obligation payment schedule” to the extent that the schedule compels Johnson to make

monthly payments toward his court-appointed counsel fees and costs in connection with

his criminal case. The judgment of the trial court is therefore affirmed as modified.

..........

FAIN, J., concurs.

HALL, J., concurring:

{¶ 44} I agree that Appellant’s sentence is not contrary to law and that the record

supports the trial court’s consecutive-sentence findings. I agree that the trial court

properly disapproved shock incarceration and intensive-program prison. I also agree that

the trial court could not impose an enforceable post-prison repayment schedule for court

costs and for reimbursement of appointed-counsel fees. I write separately to comment on

the standard of review applicable to sentencing and the majority opinion’s indirect shifting

of the burden to produce evidentiary support in the record for appellate review.

{¶ 45} At paragraph 14, the majority concludes: “We review [the] findings under

the standard set forth in R.C. 2953.08(G)(2), which authorizes us to vacate Johnson’s

consecutive sentences if we clearly and convincingly find that the record does not support

them. See State v. Marcum, Slip Opinion No.

.” In my view, the holding -23-

in Marcum allows a sentence to be vacated or modified “only if the appellate court finds

by clear and convincing evidence that the record does not support the sentence.” Id. at ¶

23. The difference is that the majority’s quote is in the affirmative, requiring the State or

the court to introduce information into the record to justify the sentence. The Marcum

quote is in the negative. If the record does not contain information from which we can

determine that the sentence is clearly wrong, then it stands, and we are without authority

to adjust it. The majority’s quote puts the burden on the State or the court, incorrectly in

my view, to insure there is information in the record to justify the sentence. This distinction

is now of more import given Marcum’s application of the clearly-and-convincingly

standard to all sentencing, not just to consecutive penalties. It is also particularly

important with regard to sentencing following a plea where the record is often sparse,

perhaps even where the defense or the court dispenses with a PSI report.

{¶ 46} I previously have written that “even a record that is largely silent is not

clearly and convincingly contrary to a trial court’s consecutive-sentencing determination

unless there is substantial affirmative factual information in support of the defendant to

conclude that the trial court is clearly wrong.” State v. Kay, 2d Dist. Montgomery No.

26344,

(Hall, J., dissenting). I recognize our jurisprudence on this

issue has been mixed, but in State v. Withrow, 2d Dist. Clark No. 2015-CA-24, 2016-

Ohio-2884, a majority, not including this writer, adopted the sparse-record notion and

further stated: “Therefore, the question is not whether the trial court had clear and

convincing evidence to support its findings, but rather, whether we clearly and

convincingly find that the record fails to support the trial court’s findings.” Id. at ¶ 38, citing

State v. Rodeffer,

,

, at ¶ 31, citing State v. Venes, 2013- -24-

Ohio-1891,

, at ¶ 21. The Withrow majority also commented that “[t]he

dissenting opinion in Kay, 2d Dist. Montgomery No. 26344,

, is correct in

that the consecutive nature of the trial court’s sentencing should stand unless the record

overwhelmingly supports a contrary result. Id. at ¶ 26 (Hall, J., dissenting).” Withrow, ¶

39.

{¶ 47} Regardless of my expressed concerns, in this case the trial court was

meticulous in its findings, and the record decidedly supports the sentence imposed.

Accordingly, I concur.

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

Copies mailed to:

Jane A. Napier Andrew C. Schlueter Hon. Nick A. Selvaggio