[Cite as State v. Stevens,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : MICHAEL E. STEVENS, : Case No. CT2019-0059 : CT2019-0060 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case Nos. CR2019-0025 and CR2019-0225

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 1, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX JAMES A. ANZELMO Prosecuting Attorney Anzelmo Law Muskingum County, Ohio 446 Howland Drive Gahanna, Ohio 43230 By: TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2019-0059, CT2019-0060 2

Baldwin, J.

{¶1} Michael E. Stephens appeals his conviction and sentencing for two counts

of Robbery, R.C. 2911.02(A)(2), and R.C. 2911.02(A)(3) felonies of the second and

third degree, respectively. Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} The charges in this case arise from two separate, but factually related cases

and were filed at the trial court level under different case numbers. The matters have not

been consolidated, have been separately appealed and have different case numbers.

Because the assignments of error and the arguments are identical, we will address them

collectively.

{¶3} Stevens was in the midst of a jury trial in case number CR2019-0225 when

he informed the trial court that he decided to change his plea from not guilty to guilty as

part of a plea agreement with the appellee. The trial court conducted a lengthy colloquy

with Stevens and found him guilty. He was later sentenced and now claims the court

erred by imposing consecutive sentences and ordering him to pay restitution. He also

contends he received ineffective assistance of counsel because his counsel failed to

object to an order to pay restitution and failed to request waiver of court costs.

{¶4} A complete recitation of the facts of this case is not necessary for the

resolution of the assignments of error and is not included for that reason. To the extent

facts are necessary, they are cited in the body of this opinion.

{¶5} In Muskingum County Court of Common Pleas Case No. CR2019-0025

Michael E. Stevens was charged with aggravated burglary in violation of R.C.

2911.11(A)(1), a felony of the first degree, with a repeat offender specification pursuant Muskingum County, Case No. CT2019-0059, CT2019-0060 3

to R.C. 2941.149; aggravated robbery in violation of 2911.01(A)(3), a felony of the first

degree, with a repeat offender specification pursuant to R.C. 2941.149; theft from an

elderly person or disabled adult, in violation of R.C. 2913.02(A)(1), a felony of the fifth

degree; theft of credit cards in violation of R.C. 2913.02(A)(1), a felony of the fifth degree;

and possessing criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree.

{¶6} In Muskingum County Court of Common Pleas Case No. CR2019-0225

Stevens was charged with robbery in violation of R.C. 2911.02(A)(3), a felony of the third

degree and theft in violation of R.C. 2913.02(A)(1), a first degree misdemeanor.

{¶7} Stevens was in the midst of a jury trial on the charges filed in Case Number

CR2019-0025 when he announced that he had decided to withdraw his plea of not guilty

and enter a guilty plea to the charges in the case pending before the jury. He also agreed

to plea to a Bill of Information in Case No. CR2019-0225. In exchange, appellee agreed

to dismiss two of the counts in Case No. CR2019-0025 and both parties agreed that they

would not make recommendations regarding sentence at the plea hearing, but reserved

the right to argue for an appropriate sentence at the time of sentencing.

{¶8} The trial court then engaged in a detailed colloquy with Stevens regarding

his rights and the consequences of the plea. At one point the colloquy was interrupted

when Stevens expressed some confusion regarding the consequences of the violation

of previously imposed post release control. The trial court allowed time for Stevens to

consult with counsel and, after Stevens agreed to continue, the plea colloquy proceeded.

{¶9} The trial court made the following comments regarding costs and restitution

within the colloquy. Muskingum County, Case No. CT2019-0059, CT2019-0060 4

What I'm talking about now, from now throughout, this applies to both of

these cases together.

You understand that in addition to any type of jail or prison time, this Court

can impose financial sanctions, things such as fines, court costs, and

restitution?

Stevens responded "Yes, sir."

{¶10} During a discussion regarding the terms of the plea agreement for Case No.

CR2019-0225 the following exchange occurred:

THE COURT: *** And you agree to make restitution in an amount yet to be

determined in that case.

THE DEFENDANT: Yes, sir.

THE COURT: Is that your understanding?

THE DEFENDANT: Yes, sir.

{¶11} When the trial court reviewed the terms of the plea agreement in Case No.

CR2019-0025 the issue of restitution was addressed:

THE COURT: ***The State agrees to nolle counts one and five of the

indictment, and the repeat violent offender specifications attached to count

one and two, at the time of sentencing, and you would agree to make

restitution in the amount $994.18.

Is that your understanding of the State's position with regard to this case?

THE DEFENDANT: Yes, sir.

THE COURT: Have you been promised anything else or threatened in any

way in order for you to enter these pleas of guilty? Muskingum County, Case No. CT2019-0059, CT2019-0060 5

THE DEFENDANT: No, sir.

{¶12} Stevens was sentenced on both cases on June 3, 2019. The trial court

concluded that the charges merged in their respective cases and the appellee elected to

proceed with sentencing under the robbery charge in each case. In case CR2019-0225

the court imposed a stated prison term of sixty months and, in case CR2019-0025, a

mandatory prison term of eight (8) years. The trial court also found that Stevens had a

lengthy felony record and "this was the worst form of the offense" in both cases. Stevens

was on post release control at the time of the offense and the trial court concluded that

Steven's "history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender." The trial court ordered

that the sentences run consecutively for an aggregate sentence of thirteen years.

{¶13} Stevens filed a timely notice of appeal and submitted three assignments of

error:

{¶14} “I. THE TRIAL COURT UNLAWFULLY ORDERED MICHAEL E. STEVENS

TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE

PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.”

{¶15} “II. THE TRIAL COURT PLAINLY ERRED BY ORDERING STEVENS TO

PAY RESTITUTION.”

{¶16} “III. STEVENS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,

IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.” Muskingum County, Case No. CT2019-0059, CT2019-0060 6

ANALYSIS

I.

{¶17} In his first assignment of error, Stevens contends that the trial court's

decision to impose consecutive sentences should be vacated because the trial court

imposed them in contravention of the sentencing statutes, but later concedes that "when

the trial court ordered Stevens to serve consecutive sentences, it made findings under

R.C. 2929.14(C)(4)" as it was obligated to do. (Appellant's Brief, p.4). Stevens then

argues that the facts do not support consecutive sentences.

{¶18} Our authority to modify or vacate any sentence is limited to those

circumstances where we clearly and convincingly find that "the record does not support

the sentencing court's findings under division (B) or (D) of section 2929.13, division

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised

Code, whichever, if any, is relevant *** [or] [t]hat the sentence is otherwise contrary to

law." R.C. 2953.08(G)(2)(a),(b). 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.’ ” State v. Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327,

¶ 7 quoting, State v. Marcum,

, 2016–Ohio–1002, ¶ 1, quoting Cross

v. Ledford,

,

(1954), paragraph three of the syllabus.

Clear and convincing evidence is that measure or degree of proof which is more than a

mere “preponderance of the evidence,” but does not require the certainty of “beyond a

reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.

{¶19} In State v. Hairston,

,

,

, ¶ 20, the Supreme Court of Ohio held proportionality review of sentences should Muskingum County, Case No. CT2019-0059, CT2019-0060 7

focus on individual sentences rather than on the cumulative impact of multiple sentences

imposed consecutively.

. The sole issue before the court in

Hairston concerned whether the aggregate, 134–year prison term imposed on Hairston

constituted cruel and unusual punishment in violation of the Eighth Amendment to the

United States Constitution and Section 9, Article I of the Ohio Constitution. Hairston, Id.

at ¶ 1. Because this aggregate term of incarceration resulted from Hairston's guilty pleas

to four counts of aggravated robbery, four counts of kidnapping, three counts of

aggravated burglary, all with firearm specifications, and three counts of having a weapon

while under disability, and because none of his individual sentences are grossly

disproportionate to their respective offenses, the Supreme Court concluded that his

aggregate sentence is not unconstitutional. Hairston, Id, at ¶ 22–23. Given that the trial

court is not obligated to refer to every factor listed in R.C. 2929.12 as part of its

sentencing analysis, “the defendant has the burden to affirmatively show that the court

did not consider the applicable sentencing criteria or that the sentence imposed is

‘strikingly inconsistent’ with the applicable sentencing factors.” State v. Hull, 11th Dist.

Lake No. 2016–L–035, 2017–Ohio–157, ¶ 8. Stevens has failed in this burden.

{¶20} The trial court considered the purposes and principles of sentencing as well

as the factors that the court must consider when determining an appropriate sentence.

R.C. 2929.11 and 2929.12. The trial court had no obligation to state reasons to support

its findings, nor was it required to give a talismanic incantation of the words of the statute,

provided that the necessary findings can be found in the record and are incorporated

into the sentencing entry. Upon review, we find that the trial court's sentencing on the

charges complies with applicable rules and sentencing statutes. The sentence was Muskingum County, Case No. CT2019-0059, CT2019-0060 8

within the statutory sentencing range. We also find that the record in the case at bar

supports the trial court's findings under R.C. 2929.14(C)(4). While Stevens may disagree

with the weight given to these factors by the trial judge, his sentence was within the

applicable statutory range for the charges and therefore, we have no basis for concluding

that it is contrary to law.

{¶21} Stevens has failed to clearly and convincingly show the record does not

support the trial court’s findings, or that the aggregate thirteen year sentence is otherwise

contrary to law.

{¶22} Appellant’s first assignment of error is denied.

II.

{¶23} Stevens argues, in his second assignment of error, that the trial court

committed plain error by ordering payment of restitution without consideration of his

ability to pay. We review restitution orders under an abuse-of-discretion standard. State

v. Sheets, 5th Dist. Licking No. 17 CA 44,

,

, ¶ 15,

quoting State v. Cook, 5th Dist. Fairfield No. 16-CA-28,

,

, ¶ 8; State v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 2016-Ohio-

7389,

, ¶ 40. However, we find that this alleged error is subject to the

doctrine of invited error, making further review of the trial court's discretion unnecessary.

{¶24} The issue of restitution was addressed during the trial court's colloquy and

with regard to case CR2019-0225 Stevens agreed to "make restitution in an amount to

be determined." (Plea Hearing, p. 17, lines 6-8). In case CR2019-0025 he expressly

agreed to make restitution in the amount of $994.18 as part of the plea agreement. (Plea

Hearing, p. 17, lines, 19-23). Muskingum County, Case No. CT2019-0059, CT2019-0060 9

{¶25} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” Stevens

did not bring the alleged error to the attention of the trial court because he expressly

agreed to pay restitution, inducing the trial court to forgo consideration of his ability to

pay, creating an invited error and not a plain error. ‘Under the invited-error doctrine, a

party will not be permitted to take advantage of an error which he himself invited or

induced the trial court to make.’ ” State v. Stewart, 8th Dist. Cuyahoga No. 91199, 2009-

Ohio-2384, ¶ 25, quoting State ex rel. Fowler v. Smith,

,

(1994). "[J]ustice and sensibility should prevent [Stevens] from prevailing on

an error which he invited. By agreeing to the restitution award in exchange for pleading

guilty, he received the benefit of his bargain: a reduced charge.” State v. Stewart,

Wyandot App. No. 16–08–11,

,

, ¶ 13 (Where the

Third District Court of Appeals affirmed the trial court's restitution award to a government

agency when such award was made pursuant to an express plea agreement between

the State and the defendant) as quoted in State v. Lalain, 8th Dist. Cuyahoga No. 95857,

.

{¶26} Because we hold that Stevens invited any error that existed with regard to

the order to pay restitution, he cannot assert the order as error on appeal. The second

assignment of error is denied.

III.

{¶27} In his third assignment of error, Stevens complains of ineffective assistance

of counsel for failing to object to the order of restitution or the imposition of costs. Muskingum County, Case No. CT2019-0059, CT2019-0060 10

{¶28} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell,

,

,

(1993); Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989).

{¶29} Counsel is unconstitutionally ineffective if his performance is both deficient,

meaning his errors are “so serious” that he no longer functions as “counsel,” and

prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v. Kulbicki,

577 U.S. ––––,

`4453(Oct. 5, 2015) quoting Strickland v. Washington,

,

,

(1984).

{¶30} With regard to the order to pay restitution, we find there was no ineffective

assistance of counsel. The record before us supports the conclusion that the plea

agreement, which included an agreement to pay costs, was approved as part of a

successful strategy to gain dismissal of two counts in one case; debatable strategic and

tactical decisions may not form the basis of a claim for ineffective assistance of counsel.

State v. Phillips,

, 1995–Ohio–171. For that reason, we find that

lack of any objection to the order of restitution is not ineffective assistance.

{¶31} We reach the same conclusion regarding the imposition of costs.

{¶32} A waiver of court costs is within the discretion of the trial court. Revised

Code Section 2947.23 requires the trial court to "include in the sentence the costs of

prosecution, including any costs under section 2947.231 of the Revised Code, and Muskingum County, Case No. CT2019-0059, CT2019-0060 11

render a judgment against the defendant for such costs." The trial court retains

jurisdiction to "waive, suspend, or modify the payment of the costs *, at the time of

sentencing or at any time thereafter." R.C. 2947.23(C). The trial court's decision

regarding whether to waive costs is, therefore, "reviewed under an abuse-of-discretion

standard.” State v. Braden,

. While no motion to waive costs nor any

decision regarding waiver is reflected in the record, we find that the identification of the

standard of review is needed to complete our analysis.

ESSENTIAL DUTIES

{¶33} We first review the record to determine whether trial counsel failed in his

essential duties to Stevens by failing to request a waiver of court costs under R.C.

2947.23.

Stevens does not address this part of the Bradley analysis in

his brief, and instead argues that a prior finding that a defendant was indigent

demonstrates a reasonable probability that the trial court would have waived costs had

counsel made the request, thus focusing on the second step of the analysis. Appellee

likewise focuses on the second step of the Bradley analysis. We find it imperative to

consider the first step to render a complete analysis as "both deficient performance and

prejudice are required to justify reversal based on ineffective assistance of counsel."

State v. Dean,

,

,

(2015) (internal

citations omitted).

{¶34} We are guided by the United States Supreme Court ruling in Strickland v.

Washington,

,

,

(1984) describing

the deference to be used in such an analysis: Muskingum County, Case No. CT2019-0059, CT2019-0060 12

A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct, and

to evaluate the conduct from counsel's perspective at the time.

Because of the difficulties inherent in making the evaluation, a court

must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action “might be considered sound

trial strategy.” See Michel v. Louisiana, supra, 350 U.S., at 101, 76

S.Ct., at 164. There are countless ways to provide effective

assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the same way.

{¶35} Revised Code Section 2947.23(C) now permits trial counsel flexibility

regarding a request for waiving costs. Prior to its adoption, a failure to request a waiver

of costs at sentencing resulted in a final judgment and a prohibition of any further

consideration of that issue. State v. Threatt,

,

,

. Res judicata no longer bars Stevens from requesting a waiver at any

time after sentencing. "Trial counsel may have decided as a matter of strategy not to

seek a waiver or modification of court costs until some later time” and “[s]trategic timing

may now play a role in trial counsel's decision.” State v. Farnese, 4th Dist. Washington

No. 15CA11,

, ¶ 16; State v. Purifoy, 2nd Dist. Montgomery No. 28042, Muskingum County, Case No. CT2019-0059, CT2019-0060 13

. We find that the timing of a motion, seeking waiver of payment,

is a matter of trial strategy. State v. Southam, 6th Dist. Fulton No. F-18-004, 2018-Ohio-

5288, ¶ 67, quoting State v. Pultz, 6th Dist. Wood No. WD-14-083,

.

And a debatable trial strategy does not equal ineffective assistance of counsel. Southam,

supra at ¶ 68, quoting State v. Phillips,

,

(1995).

State v. Moore, 6th Dist. Erie No.

. Accord State v. Boyd,

5th Dist. Richland No. 12CA23,

. (“Trial strategy and even

debatable trial tactics do not establish ineffective assistance of counsel,” quoting State

v. Conway,

, 2006–Ohio–2815, ¶ 101) and State v. McCall, 5th Dist.

Coshocton No. 2017CA0002,

, ¶ 43 (“Tactical or strategic trial decisions,

including timing of a motion, do not generally constitute ineffective assistance”).

{¶36} We hold that trial counsel does not violate an essential duty to Stevens by

not filing a motion to waive costs at the sentencing hearing and that, therefore, he did

not receive ineffective assistance of counsel in this case.

{¶37} Even if we had concluded that trial counsel's failure to file a motion to waive

costs was a violation of his duty to Stevens, our analysis of the second branch of the

Bradley analysis would lead us to the same conclusion because the record lacks

evidence of a reasonable probability of a different outcome.

REASONABLE PROBABILITY

{¶38} Stevens relies on the trial court's findings that he was indigent for

appointment of trial and appellant counsel to support his argument that there was a

reasonable probability that the trial court would have waived costs. That argument has

been rejected in State v. Davis,

. Muskingum County, Case No. CT2019-0059, CT2019-0060 14

{¶39} The holding of

has made it clear that "[A] determination of

indigency alone does not rise to the level of creating a reasonable probability that the

trial court would have waived costs had defense counsel moved the court to do so" and,

instead we must determine" whether the facts and circumstances presented by the

defendant establish that there is a reasonable probability that the trial court would have

granted the request to waive costs had one been made.” Id. at ¶ 15-16.

{¶40} Stevens has not presented any further facts or circumstances to support a

finding that there was a reasonable probability that trial court would have granted the

request to waive costs. We have reviewed the record before us and found nothing that

would support the conclusion that there was a reasonable probability that the outcome

would have changed had a motion been filed. We considered, as part of this analysis,

whether the trial court’s denial of such a motion would have been an abuse of discretion

and find nothing within the facts and circumstances of this case that would lead us to

find that a failure to grant the motion would constitute such an abuse. For those reasons,

we are compelled to conclude that Stevens has failed to demonstrate a reasonable

probability that the outcome would have changed and that, therefore, he did not suffer

prejudice as a result of counsel not filing a motion to wave costs. State v. Dean,

,

,

. Muskingum County, Case No. CT2019-0059, CT2019-0060 15

{¶41} Appellant’s third assignment of error is overruled and the decision of the

Muskingum County Court of Common Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.