[Cite as State v. Stevens,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. Nos. 16CA0033-M 16CA0034-M Appellee

v. APPEAL FROM JUDGMENT MARK L. STEVENS ENTERED IN THE COURT OF COMMON PLEAS Appellant COUNTY OF MEDINA, OHIO CASE Nos. 15CR0363 15CR0254

DECISION AND JOURNAL ENTRY

Dated: June 26, 2017

TEODOSIO, Judge.

{¶1} Appellant, Mark L. Stevens, appeals from his convictions in the Medina County

Court of Common Pleas. We affirm.

I.

{¶2} Mr. Stevens set fire to his Wadsworth home where he lived with his wife. He

then went to a nearby bar with a loaded firearm and was soon arrested for illegal possession of a

firearm in a liquor permit premises, a felony of the third degree. He was later charged in a

separate indictment with two counts of aggravated arson, felonies of the first and second degree.

He pled no contest to all three charges. The aggravated arson counts were determined to be

allied offenses of similar import and were merged for sentencing. The State elected to have Mr.

Stevens sentenced on the felony of the first degree. The trial court sentenced Mr. Stevens to

eleven years in prison for aggravated arson and ordered him to pay $196,000.00 in restitution to 2

his wife. The court also sentenced him to twelve months in prison for illegal possession of a

firearm in a liquor permit premises, to be served concurrently with his sentence for aggravated

arson.

{¶3} Mr. Stevens now appeals from his convictions and raises three assignments of

error for this Court’s review.

II.

ASSIGNMENT OF ERROR ONE

THE GRAND JURY INDICTMENT FAILED TO INCLUDE A FINDING OF PROBABLE CAUSE AND IS THEREFORE VOID HAVING FAILED ITS PRIMARY PURPOSE.

{¶4} In his first assignment of error, Mr. Stevens argues that his indictments are void

because they fail to include a finding of probable cause on their face. We disagree.

{¶5} Mr. Stevens cites to no law mandating that the face of an indictment must include

a finding of probable cause. Instead, he calls for a “new investigation and review of the grand

jury process” and argues that an indictment “should indicate on its face that the grand jury made

a finding of probable cause” as an assurance that such a finding was made. (Emphasis added.)

{¶6} Crim.R. 7(B) details the nature and required contents of indictments, but includes

no such requirement. Moreover, the United States Supreme Court has stated that “the finding of

an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines

the existence of probable cause for the purpose of holding the accused to answer.” Ex parte

United States,

(1932). “The purposes of an indictment are to give an accused

adequate notice of the charge, and enable an accused to protect himself or herself from any

future prosecutions for the same incident.” State v. Buehner,

, 2006-Ohio-

4707, ¶ 7. This Court has held that “the indictment generally need only identify and set forth the 3

elements of the crime charged.” State v. Swiger, 9th Dist. Summit No. 14565,

,

*9 (July 17, 1991). “The constitutional guarantees of indictment by a grand jury, a fair trial, and

due process of law require no more.”

{¶7} Nevertheless, Mr. Stevens failed to argue at the trial court level that his

indictments were defective or void. “By failing to timely object to a defect in an indictment, a

defendant waives all but plain error on appeal.” State v. Horner,

, 2010-

Ohio-3830, paragraph three of the syllabus; Crim.R. 12(C)(2) (objections based on defects in the

indictment must be raised before trial). Mr. Stevens has not argued plain error on appeal. When

an appellant does not develop a plain error argument in his brief, this Court will not create one

on his behalf. State v. Grad, 9th Dist. Medina No. 15CA0014–M,

.

{¶8} Mr. Stevens’ first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING MR. STEVENS TO THE MAXIMUM ELEVEN YEARS IN PRISON ON HIS FIRST EVER FELONY CONVICTION AND HIS FIRST EVER PRISON SENTENCE, AND WHEN THE FACTS AND CIRCUMSTANCES OF HIS CRIME WERE NOT THE WORST LEVEL OF THE OFFENSE AND DID NOT WARRANT THE MAXIMUM PRISON SENTENCE.

{¶9} In his second assignment of error, Mr. Stevens argues that the trial court abused

its discretion and erred in sentencing him to eleven years in prison because the maximum

sentence is neither fair nor just. We disagree.

{¶10} An appellate court’s standard for review of a felony sentence is not whether the

sentencing court abused its discretion. R.C. 2953.08(G)(2). The Supreme Court of Ohio has

held that “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.” State v. 4

Marcum,

,

; R.C. 2953.08(G)(2). “Clear and convincing

evidence is that measure or degree of proof which will produce in the mind of the trier of facts a

firm belief or conviction as to the allegations sought to be established.” Cross v. Ledford,

, 477 (1954).

{¶11} Mr. Stevens concedes that his prison sentence is within the appropriate sentencing

range and is not contrary to law. See R.C. 2929.14(A)(1); R.C. 2929.14(A)(3)(b). However, he

argues that the record and the facts surrounding the aggravated arson do not support his eleven-

year prison sentence. “Trial courts have full discretion to impose a prison sentence within the

statutory range and are no longer required to make findings or give their reasons for imposing

maximum, consecutive, or more than the minimum sentences.” State v. Foster, 109 Ohio St.3d.

1,

, paragraph seven of the syllabus.

{¶12} A review of the transcript from the sentencing hearing reveals that the trial court

heard from the prosecutor, Mr. Stevens’ wife, Mr. Stevens, and defense counsel prior to

sentencing. The judge commented that Mr. Stevens’ wife “suffered substantial financial loss.”

The judge expressed further concern that Mr. Stevens had done nothing to try to make amends

for the financial loss caused by his actions. The judge stated that “actions [] speak louder than

words” and that Mr. Stevens’ actions bothered her. He deliberately poured gas and torched the

house. He took things that he cared about, such as the dog and other items, and moved them to a

safe place. He took no action to save the house or call 911. He never asked for help. With

regard to any remorse, the judge stated, “[Y]ou talk about sorry. You talk about remorse, but

there’s no action that gives any meaning to those words.” The judge continued:

[I]t is the order of this [c]ourt after consideration of all of the relevant factors outlined under 2929.11, 12 and 13 of the Revised Code, including the seriousness of the offense, recidivism factors, to protect the public from future crime and to punish the Defendant for his actions in this matter, and I want to point out, when 5

your client gave his allocution this morning, when asked if he would ever torch or commit arson again, he said, “[P]robably not.” Probably not does not meet the standard of protecting the public.

The judge proceeded to sentence Mr. Stevens to a total of eleven years in prison. Mr. Stevens’

sentencing entries state that “[t]he prison term for this offense would adequately punish the

offender and/or protect the public from future crime by this offender and/or others.”

{¶13} There is no express indication in the sentencing transcript that the judge reviewed

the presentence investigation report, but “[b]ecause a presentence investigation report was

requested in this case, there is a presumption that the trial court utilized it in imposing a

sentence.” State v. Cox, 9th Dist. Summit No. 19773,

, *2 (Apr. 12, 2000).

Both the prosecutor and defense counsel stated that they had reviewed the presentence

investigation report and found it to be accurate. The report is properly included in the record for

our review.

{¶14} After reviewing the entire record, we conclude that the trial court did not err in

sentencing Mr. Stevens to eleven years in prison because the sentence is neither unwarranted nor

clearly and convincingly contrary to law. See State v. Turner, 9th Dist. Medina No. 16CA0011-

M,

.

{¶15} Mr. Stevens’ second assignment of error is overruled.

ASSIGNMENT OF ERROR THREE

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING AND THERE IS CLEAR AND CONVINCING EVIDENCE OF SAME WHEN SENTENCING MR. STEVENS TO ONE HUNDRED AND NINETY-[SIX] THOUSAND DOLLARS ($19[6],000.00) IN RESTITUTION WHEN HE HAS NO ABILITY TO EARN SUBSTANTIAL INCOME, HAS NO SUBSTANTIAL ASSETS, IS PHYSICALLY DISABLED AND RECEIVING DISABILITY BENEFITS AS DETERMINED BY THE SOCIAL SECURITY ADMINISTRATION, AND IS SENTENCED TO AN ELEVEN (11) YEAR PRISON SENTENCE WHICH WILL EFFECTIVELY BAR HIS ABILITY TO EARN INCOME IN THE FUTURE. 6

{¶16} In his third assignment of error, Mr. Stevens argues that the trial court abused its

discretion in ordering restitution that he cannot afford and without making a finding regarding

his ability to pay. We disagree.

{¶17} R.C. 2929.18(A)(1) authorizes a sentencing court to order financial sanctions,

including restitution, to the victim. Restitution may be based on “an amount recommended by

the victim, the offender, a presentence investigation report, estimates or receipts indicating the

cost of repairing or replacing property, and other information” as long as the amount does not

exceed the economic loss suffered by the victim as a result of the commission of the offense.

This Court reviews restitution orders under an abuse of discretion standard. State v. Esterle, 9th

Dist. Medina No. 06CA0003-M,

. “The term ‘abuse of discretion’ connotes

more than an error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore,

(1983).

{¶18} “R.C. 2929.19(B)(5) requires a trial court to consider the offender’s present and

future ability to pay prior to imposing a financial sanction.” State v. Norris, 9th Dist. Summit

No. 27630,

. “‘[T]here are no express factors that must be taken into

consideration or findings regarding the offender’s ability to pay that must be made on the

record.’” State v. Williams, 9th Dist. Summit No. 26014,

, quoting State v.

Martin,

(4th Dist. 2000). “Even so, the record must reflect that the

court actually considered the defendant’s ability to pay.” Williams at ¶ 17. “A trial court

commits plain error by ordering a defendant to pay restitution without first considering his ability

to pay.”

7

{¶19} In the case sub judice, the trial court considered Mr. Stevens’ present and future

ability to pay prior to ordering restitution when it engaged defense counsel in the following

discussion:

THE COURT: What has your client done to try to make amends for the financial loss that has been caused by his actions?

***

THE COURT: Did you tell him to start setting some money aside, that, you know, she’s out several hundred thousand dollars?

MR. CICCOLINI: Well, Your Honor, I know his income is Social Security based. There’s not much income there.

THE COURT: About $2,000 a month.

MR. CICCOLINI: Yes.

THE COURT: Where is that going?

MR. CICCOLINI: Well, Social Security stopped at the time he was - - sometime after he was arrested and that’s normal, so I believe that the disability from his employer is only 400 some dollars a month and his sister was paying whatever bills that she was able to pay with that minimum amount of money so as he stands here today, Your Honor, I believe he only receives 400 plus dollars a month in disability.

THE COURT: So in other words, in answer to my question, what actions have been taken to try to bring recompense to the victim, the answer is nothing?

MR.CICCOLINI: That’s correct, because he hasn’t had the opportunity, Your Honor. He’s been locked up. I mean, his hands are really tied.

THE COURT: Well, you’re his attorney. He could be doing things through you, correct?

MR. CICCOLINI: Well, he could, Your Honor, and in due respect, he just doesn’t have any income. I mean, $400 a month is - - I mean, in regards to assisting his spouse, there’s just no money there once Social Security got cut off. I don’t know what his intention would be. Let’s say he was to be placed on probation, what arrangements he could make once Social Security was able to kick back in, I’m sure there would be some arrangements. That money’s not going to be there, Your Honor, until he’s released from jail. 8

{¶20} The presentence investigation report states that Mr. Stevens is not currently

employed, but he receives Social Security Disability Income in the amount of $1,549.00 per

month and Disability Insurance in the amount of $418.00 per month. Mr. Stevens’ wife told the

trial court judge at sentencing that the value of her lost home and its contents exceeded

$200,000.00. In her victim impact statement, she reported losses in the amount of $222,690.99,

which included the “loss of home not paid for by insurance, loss of property, physical and mental

health out of pocket expenses, attorney fees, loss of income, etc.” The trial court judge ordered

restitution in the amount of $196,000.00 for the value of the home and furnishings destroyed by

Mr. Stevens. The restitution order was journalized in Mr. Stevens’ sentencing entry.

{¶21} Nonetheless, Mr. Stevens did not object to the restitution amount at sentencing

and did not request a hearing to dispute the amount, pursuant to R.C. 2929.18(A)(1). See State v.

Sharier, 9th Dist. No. 27421,

, ¶ 8. “If a defendant fails to object to the

restitution order the court imposes, he forfeits any error in the court’s order, save for a claim of

plain error.” State v. Ford, 9th Dist. Summit No. 26073,

. Unlike the

appellants in Norris and Sharier, Mr. Stevens has not argued plain error on appeal. See Norris,

; see also Sharier at ¶ 12. When an appellant does not develop a plain

error argument in his brief, this Court will not create one on his behalf. Grad,

.

{¶22} Mr. Stevens’ third assignment of error is overruled.

III.

{¶23} Mr. Stevens’ assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

Judgment affirmed. 9

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT

SCHAFER, P. J. CARR, J. CONCUR.

APPEARANCES:

MICHAEL J. CALLOW, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and JAMES M. PRICE, Assistant Prosecuting Attorneym, for Appellee.