[Cite as State v. Thompson,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-19-30

v.

DAVID A. THOMPSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2018 0226

Judgment Affirmed

Date of Decision: March 2, 2020

APPEARANCES:

Marley C. Nelson for Appellant

Jana E. Emerick for Appellee Case No. 1-19-30

ZIMMERMAN, J.

{¶1} Defendant-appellant, David A. Thompson (“Thompson”), appeals the

January 23, 2019 judgment entry of sentence of the Allen County Court of Common

Pleas. We affirm.

{¶2} On July 12, 2018, the Allen County Grand Jury indicted Thompson on

one count of possession of cocaine in an amount equal to or exceeding 20 grams but

less than 27 grams of cocaine in violation of R.C. 2925.11(C)(4)(D), a second-

degree felony. (Doc. No. 4). Thompson appeared for arraignment on July 23, 2018

and entered a plea of not guilty. (Doc. No. 11). The initial jury-trial date was

assigned for October 2, 2018, but continued twice. (Doc. Nos. 18, 34, 35, 47, 50,

51, 65, 66, 106). In anticipation of the trial, five law-enforcement officers from the

Lima Police Department were each served a subpoena by a deputy sheriff from the

Allen County Sheriff’s Office on September 21, 2018, then again on September 30,

2018 (for the rescheduled jury trial on October 16, 2018), once more on December

18, 2018 (for the rescheduled jury trial on January 8, 2019), and finally, on January

3, 2019 (for the rescheduled jury trial on January 22, 2019).1 (Doc. Nos. 17, 22, 23,

24, 25, 26, 28, 29, 30, 31, 32, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 50,

51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 62, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 106).

1 The October 2, 2018 and January 3, 2019 jury-trial dates were rescheduled as a result of the trial court’s crowded docket. (Doc. Nos. 34, 35, 65, 66, 106); (Jan. 2, 2019 Tr. at 1-4). The January 8, 2019 jury-trial date was continued at the State’s request because a key witness was unavailable. (Doc. Nos. 47, 50, 51).

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{¶3} The case proceeded to a jury trial on January 22 and 23, 2019 where the

jury found Thompson guilty of possession of cocaine. (Doc. No. 83, 84, 107); (Jan.

22 and 23, 2019 Tr. at 1-202). Immediately thereafter, the trial court sentenced

Thompson to a six-year-mandatory-prison term. (Doc. No. 83, 84). Thompson was

also ordered to pay a $10,000 fine and court costs. (Doc. No. 84).

{¶4} On May 17, 2019, Thompson filed a notice of appeal and a pro-se

motion for leave to file delayed appeal which we granted on June 14, 2019. (Case

No. 01-19-30, Doc. Nos. 1, 2, 3).2 He raises two assignments of error for our review.

We will address his first assignment of error followed by his second assignment of

error.

Assignment of Error I

David Thompson’s sentence is contrary to law because the trial court determined that his offense was committed “for hire or as part of an organized criminal activity” when there was no evidence in the record to support that conclusion. R.C. 2953.08(G)(2)(a)-(b); R.C. 2929.12(B); Fifth and Fourteenth Amendments, United States Constitution; Sections 10 and 16, Article I, Ohio Constitution; Trial Tr. 198.

{¶5} In his first assignment of error, Thompson argues that the trial court

erred by imposing the six-year-mandatory-prison term. In particular, he argues that

2 Thompson initially failed to file an affidavit of indigency, statement and praecipe, and docketing statement as required by Loc.R. 1(B), 3, and 3(E) which could have resulted in dismissal of his appeal under Loc.R. 15. (Case No. 1-19-30, Doc. No. 3). Thereafter, Thompson satisfied the deficiencies and perfected his pro- se appeal. (Case No. 1-19-30, Doc. Nos. 4, 5, 6, 7). Subsequently, the Office of Ohio Public Defender entered its appearance as counsel of record on behalf of Thompson. (Case No. 1-19-30, Doc. No. 8).

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the record does not support the trial court’s sentence because the trial court

improperly considered that Thompson’s offense was “for hire” or “as a part of an

organized criminal activity.”

Standard of Review

{¶6} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“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. Marcum,

,

. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford,

(1954), paragraph three of the

syllabus.

Analysis

{¶7} “It is well-established that the statutes governing felony sentencing no

longer require the trial court to make certain findings before imposing a maximum

sentence.” State v. Maggette, 3d Dist. Seneca No. 13-16-06,

,

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

(“Unlike consecutive sentences, the trial court was not required to make any

particular ‘findings’ to justify maximum prison sentences.”) and State v. Hinton, 8th

Dist. Cuyahoga No. 102710,

(“The law no longer requires the

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trial court to make certain findings before imposing a maximum

sentence.”). Rather, “‘trial courts have full discretion to impose any sentence within

the statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-

4225, ¶ 9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06,

, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09,

. In

this case, as a second-degree felony, possession of cocaine in an amount equal to or

exceeding 20 grams, but less than 27 grams of cocaine, carries a mandatory sanction

of 2-year to 8-years imprisonment. R.C. 2925.11(C)(4)(D); 2929.13(F)(5);

2929.14(A)(2)(b). Because the trial court sentenced Thompson to 6 years in prison,

the trial court’s sentence falls within the statutory range. (Jan. 22 and 23, 2019 Tr.

at 200); (Doc. Nos. 84, 107). “[A] sentence imposed within the statutory range is

‘presumptively valid’ if the [trial] court considered applicable sentencing factors.”

Maggette at ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-

Ohio-2791, ¶ 15.

{¶8} “R.C. 2929.11 provides, in pertinent part, that the ‘overriding purposes

of felony sentencing are to protect the public from future crime and to punish the

offender.’” Smith at ¶ 10, quoting R.C. 2929.11(A). “In advancing these purposes,

sentencing courts are instructed to ‘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.’”

quoting

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R.C. 2929.11(A). “Meanwhile, R.C. 2929.11(B) states that felony sentences must

be ‘commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim’ and also be consistent with sentences

imposed in similar cases.”

quoting R.C. 2929.11(B). “In accordance with these

principles, the trial court must consider the factors set forth in R.C. 2929.12(B)-(E)

relating to the seriousness of the offender’s conduct and the likelihood of the

offender’s recidivism.”

citing R.C. 2929.12(A). “‘A sentencing court has broad

discretion to determine the relative weight to assign the sentencing factors in R.C.

2929.12.” Id. at ¶ 15, quoting State v. Brimacombe,

, 2011-

Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett,

(2000).

{¶9} “Although the trial court must consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.

2929.12, the sentencing court is not required to ‘state on the record that it considered

the statutory criteria or discuss[ed] them.’” Maggette at ¶ 32, quoting State v.

Polick,

(4th Dist. 1995). “A trial court’s statement that

it considered the required statutory factors, without more, is sufficient to fulfill its

obligations under the sentencing statutes.”

citing State v. Abrams, 8th Dist.

Cuyahoga No. 103786,

, ¶ 14, citing State v. Payne,

,

, ¶ 18. At Thompson’s sentencing hearing and in its

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sentencing entry, the trial court considered the R.C. 2929.11 and 2929.12

factors. (Jan. 22 and 23, 2019 Tr. at 198-201); (Doc. Nos. 84, 107).

{¶10} Thompson argues that because he was sentenced on a possession-of-

cocaine conviction and not a trafficking conviction, the trial court was precluded

from finding that his conduct more serious as being “for hire” or “as a part of an

organized criminal activity” under R.C. 2929.12(B)(7). Indeed, the terms “for hire”

and “as a part of an organized criminal activity” are not defined in R.C. Chapter

2929 and trial courts must determine on a case-by-case basis if an offense is “for

hire” or “as a part of an organized criminal activity”. See State v. Woodruff, 3d Dist.

Union No. 14-04-07,

. See also State v. Sawyer, 3d Dist. Allen

No. 1-03-82,

, citing State v. Martinez, 6th Dist. Wood No.

WD-01-027,

, *6 (Feb. 22, 2002), citing State v. Obregon, 6th Dist.

Sandusky No. S-99-042 (Aug. 25, 2000) and State v. Shryock, 1st Dist. Hamilton

No. C-961111,

(Aug. 1, 1997).

{¶11} At issue are the following statements made by the trial court at

Thompson’s sentencing hearing:

[The Trial Court] In this case I’m going to make a finding, and I

don’t give it a whole lot of weight under the facts

of this case, but I will find that the offense was

committed as part of an organized criminal

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activity. That’s not to say that Mr. Thompson

was a member of a gang or anything like. That’s

not what I’m saying. But, organized criminal

activity in terms of being a part of the drug

culture in this community. I don’t give that a

whole lot weight. As far as for hire, there was

really no other explanation of the nine hundred

dollars that was seized from him with the drugs.

But, I’ll just make that note. He’s part of the

drug problem in the county. For that purpose,

it’s part of an organized criminal activity. Again,

not a whole lot of make it more serious. Its

serious enough because of the amount involved.

But, I just note that for the record.

(Jan. 22 and 23, 2019 Tr. at 198); (See Doc. Nos. 84, 107). Notwithstanding these

comments and finding, the presentence investigation report (“PSI”) details that

Thompson has previously been convicted on two counts of trafficking in cocaine

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and several convictions for possession of drugs.3 Nevertheless, assuming without

deciding that the trial court may have over-reached in finding that Thompson

committed the offense of possession of cocaine “for hire” or “as a part of an

organized criminal activity”, the record reveals that the trial court made findings

supporting its sentence. Specifically, the trial court determined that the recidivism

factors “weigh the heaviest in this case”. (Jan. 22 and 23, 2019 Tr. at 199); (Doc.

Nos. 107). Further, in assessing whether Thompson was likely to commit future

crimes, the trial court considered Thompson’s extensive-prior record and that he

was out on bond (in case number 2017 0380) at the time he committed the instant

offense. (Id.); (Doc. Nos. 84, 107). See R.C. 2929.12(D)(1), (2), (3). The trial court

also found that Thompson had not responded favorably to the sanctions previously

imposed. (Id.); (Doc. No. 107). See R.C. 2929.12(D)(3). Finally, his Ohio Risk

Assessment System score indicated a high risk of reoffending. (Id.); (Doc. Nos. 84,

107). See R.C. 2929.12(D).

{¶12} After weighing the seriousness and recidivism factors, the trial court

imposed a six-year-mandatory-prison sentence for Thompson’s possession-of-

cocaine conviction. As a result, we conclude that the trial court exercised its

3 Further, Thompson was not employed at the time of the offense when he was found in possession of $900.00 and a significant amount of crack cocaine. (PSI). Thus, read in context, the trial court’s comments and finding under division (B)(7) were qualified and given little weight. After a review of the record, we cannot disagree with the trial court’s logic when it opined that Thompson’s possession-of-drugs conviction under the facts presented implied that Thompson could be a part of the “drug culture” in the community, and thus permitted the trial court to invoke the factor under R.C. 2929.12(B)(7).

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discretion in its sentence of Thompson, and even assuming it to be error, any

reference to Thompson being “for hire” and “a part of an organized criminal

activity” was harmless error.4 State v. Miller, 3d Dist. Mercer No. 10-18-07, 2018-

Ohio-3713, ¶ 32, (distinguishing Woodruff and concluding that “[e]ven though the

trial court may have over-reached in finding that [Miller] committed his offense as

part of organized criminal activity, the * * * trial court made additional findings

supporting its sentence * * * and * * * exercised its discretion in its sentence of

[Miller] and any reference * * * was harmless error.”).

{¶13} We further conclude that it was within the trial court’s discretion to

impose a six-year-mandatory-prison sentence as “the most effective way to comply

with the purposes and principles of sentencing set forth in section 2929.11 of the

Revised Code.” R.C. 2929.12(A). See also R.C. 2929.13(D). Accordingly, based

on the foregoing, Thompson’s sentence is not clearly and convincingly contrary to

law. See Maggette,

.

{¶14} For these reasons, Thompson’s first assignment of error is overruled.

Assignment of Error II

The trial court assessed, and the clerk of courts is working to collect, unauthorized court costs. R.C. 2947.23; Cost Bill; Section I, Article I, Ohio Constitution.

4 A harmless error is any error, defect, irregularity, or variance which not does not affect substantial right. State v. Wilson, 3rd Dist. Allen No. 1-09-53,

. Crim.R. 52(A). Furthermore, a harmless error does not affect the outcome of the case and, thus, does not warrant a judgment to be overturned or set aside.

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{¶15} In his second assignment of error, Thompson argues that the trial court

erred by ordering the imposition of court costs.5 Thompson argues that the trial

court assessed statutorily-unauthorized-court costs in the form of statutorily-

unauthorized-mileage fees.

Standard of Review

{¶16} R.C. 2947.23(A)(1)(a) provides that, in all criminal cases, the trial

court “shall include in the sentence the costs of prosecution * * * and render a

judgment against the defendant for such costs.” We have previously held that the

“costs of prosecution” means “court costs” which includes those costs that are

“directly related to the court proceeding and identified by a specific statutory

authorization.” State v. Christy, 3d Dist. Wyandot No. 16-04-04,

. In State v. Davis, the Supreme Court of Ohio recently recognized

that court costs are not punishment, State v. Threatt,

,

,

, superseded by statute as stated in State v. Braden, ___ Ohio St.3d ___,

, ___ N.E.3d ___, and are thus not a part of a sentence, State v. White,

,

,

. However, under R.C. 2947.23(A)(1)(a), the General Assembly has nevertheless ordered trial courts to include the costs in an offender’s sentence and judgment.

5 Thompson is not appealing his future ability to pay those costs nor is he arguing that his counsel was ineffective for failing to object to the imposition of court costs.

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State v. Davis, ___ Ohio St.3d ___,

.6 When a defendant moves

to waive court costs under R.C. 2947.23, “the issue is preserved for appeal and is

reviewed under an abuse-of-discretion standard.” State v. Braden, ___ Ohio St.3d

___,

, citing State v. Threatt,

, 2006-Ohio-

905, ¶ 23, superseded by statute, Braden. Prior to R.C. 2947.23(C)’s enactment if

a defendant failed to move to waive court cost at his sentencing hearing, he lost the

ability to do so and further consideration of the issue was barred by the doctrine of

res judicata. State v. Clevenger,

,

, ¶ 4,

superseded by statute, Braden. Threatt, superseded by statute, Braden. State v.

Joseph,

,

, superseded by statute, Braden.

However, after R.C. 2947.23(C) became effective March 22, 2013 as part of

Am.Sub.H.B. No. 247, the trial court was permitted to retain jurisdiction to waive

court costs “at the time of sentencing or at any time thereafter.”

,

(concluding that “[R.C. 2947.23(C)] specifically provides an exception to res

judicata when a defendant did not request waiver at sentencing or challenge his court

costs on direct appeal.”).

Analysis

{¶17} As an initial matter, we note that Thompson never objected to the

imposition of court costs or the costs of prosecution by the trial court at his

6 Consequently, it would be inappropriate for this court to apply the contrary-to-law standard found in R.C. 2953.08(G)(2) to the facts before us.

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sentencing hearing, and he now raises this issue for the first time on appeal. (Jan.

22 and 23, 2019 Tr. at 200-201); (Doc. No. 107). “An appellant’s failure to raise an

issue with the trial court constitutes a waiver of that issue absent plain error.”7 State

v. Johnson, 3d Dist. Allen No. 1-16-41,

, quoting State v.

Stiles, 3d Dist. Allen No. 1-08-12,

, citing State v. Underwood,

(1983), (concluding that Johnson’s failure to object to costs

during the trial court proceedings forfeited error).

{¶18} Crim.R. 52(B) governs plain error in criminal cases. The Supreme

Court of Ohio has held that “‘the plain error rule is to be invoked only in exceptional

circumstances to avoid a miscarriage of justice.’” State v. Long,

(1978), quoting United States. v. Rudinsky,

(6th Cir. 1971),

citing Eaton v. United States,

(5th Cir. 1968), cert. denied,

,

. Because Thompson did not object to the imposition of court

costs and the cost of prosecution, we apply the plain-error rule to the facts before

us.

{¶19} Our review is not without limitation. The Supreme Court of Ohio has

previously concluded that there are limitations on an appellate court’s decision to

7 “Waiver is the intentional relinquishment or abandonment of a right, and waiver of a right ‘cannot form the basis of any claimed error under Crim.R. 52(B).’” State v. Payne,

,

, ¶ 23 citing State v. McKee,

(Cook, J. dissenting) and United States v Olano,

,

(1993). Forfeiture, on the other hand, “is a failure to preserve an objection * * *.” Olano,

,

, citing

. Forfeiture does not extinguish an appellant’s claim “of plain error under Crim.R. 52(B).”

.

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review and correct an error under Crim.R. 52(B). State v. Barnes,

(2002). “First, there must be an error, i.e., a deviation from a legal rule.”

citing State v. Hill,

(2001), citing United States v. Olano,

,

(1993). “Second, the error must be plain.

To be “plain” within the meaning of Crim.R. 52(B), an error must be an “obvious”

defect in the trial proceedings.”

citing State v. Sanders,

,

(2001), citing State v. Keith,

(1997) and Olano,

,

. “Third, the error must have affected ‘substantial rights.’

We have interpreted this aspect of the rule to mean that the trial court’s error must

have affected the outcome of the trial.”

citing Hill,

, State

v. Moreland,

(1990), and Long,

, paragraph

two of the syllabus. Thompson is “required to demonstrate a reasonable probability

that the error resulted in prejudice—the same deferential standard for reviewing

ineffective assistance of counsel claims.” State v. Rogers,

,

, ¶ 22, citing United States v. Dominguez Benitez,

, 81-

83,

(2004). That is—an appellate court addressing the

failure to object to the imposition of court costs “must review the facts and

circumstances of each case objectively and determine whether the defendant

demonstrated a reasonable probability that had his counsel moved to waive [or had

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Thompson objected to the imposition of] court costs, the trial court would have

granted that motion.” State v. Davis, ___ Ohio St.3d ___,

.

{¶20} Our review of the record conclusively establishes that each of the

subpoena-mileage fees were associated with scheduled- or rescheduled-jury-trial

dates relative to Thompson’s court proceeding, and thus, in our estimation, the only

remaining question is to identify whether the subpoenas-mileage fees were

statutorily authorized under R.C. 311.17(B)(1). (Doc. Nos. 17, 22, 23, 24, 25, 26,

28, 29, 30, 31, 32, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 50, 51, 54, 55,

56, 57, 58, 59, 60, 61, 62, 62, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 106). 1913 Ohio

Atty.Gen.Op. No. 547, at 379. See 1931 Ohio Atty.Gen.Op. No. 3099, at 469.

Compare Mckinley v. Kilgore, 4th Dist. Highland No. 559,

, *1 (July

29, 1985). Even if we assume without deciding that the trial court erred in imposing

statutorily-unauthorized-court costs based on statutorily-unauthorized-mileage fees,

Thompson fails to demonstrate that there is a reasonable probability that the error

resulted in prejudice. See Davis at ¶ 14. Rogers,

, at ¶ 22. State v.

Wickline,

, citing Long, paragraph two of the syllabus and

State v. Greer,

(1988).

{¶21} Moreover, based on the limited facts before us, Thompson has not

shown us that the trial court erred in assessing statutorily-unauthorized-court costs

predicated on statutorily-unauthorized-mileage fees because the record is unclear as

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to the specifics of the service and filing of the subpoenas in question. Further, with

this limited record, Thompson cannot establish that had he objected to the

imposition of such unauthorized costs that the trial court would have granted his

motion. See

. Nevertheless and notwithstanding our conclusion,

Thompson has not lost the ability to seek waiver, suspension, or modification of the

payment of the costs of prosecution in this case. See R.C. 2947.23(C). Braden, ___

Ohio St.3d ___,

. Consequently, we cannot conclude that

the trial court deviated from some legal rule, with an obvious defect in the

proceeding, that affected Thompson’s substantial rights. Accordingly, we find no

plain error exists which has caused a manifest miscarriage of justice. See Long,

. For these reasons, Thompson’s second assignment of error is

overruled.

{¶22} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr

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