[Cite as State v. Potter,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY

State of Ohio Court of Appeals No. F-21-002

Appellee Trial Court No. 19CR122

v.

Danette L. Potter DECISION AND JUDGMENT

Appellant Decided: September 30, 2021

*****

Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

*****

ZMUDA, P.J.

I. Introduction

{¶ 1} Appellant, Danette Potter, appeals the judgment of the Fulton County Court

of Common Pleas, sentencing her to 180 days in jail, suspending the sentence, and placing her on two years of community control after she pled guilty to one count of

passing bad checks.

A. Facts and Procedural Background

{¶ 2} On December 16, 2019, appellant was indicted on one count of passing bad

checks in violation of R.C. 2913.11(B), a felony of the fifth degree. The charge related to

appellant’s use of a check to pay a $1,000 veterinarian bill to Countryside Animal Clinic

sometime between June 7 and June 10, 2019. On April 1, 2020, appellant entered a plea

of not guilty to the sole charge in the indictment. Thereafter, the matter proceeded

through pretrial discovery and motion practice.

{¶ 3} Following successful plea negotiations, appellant appeared before the trial

court for a change of plea hearing on November 3, 2020. At the hearing, appellant

entered a guilty plea to the amended charge of passing bad checks in violation of R.C.

2913.11(B), a misdemeanor of the first degree.1 The trial court accepted appellant’s plea,

found her guilty of the amended charge, and referred the matter to the Adult Probation

Department for the preparation of a presentence investigation report.

{¶ 4} One month later, on December 22, 2020, appellant came before the trial

court for sentencing. At the sentencing hearing, the state acknowledged that appellant

1 Due to a malfunction with the trial court’s audio recording equipment, there is no transcript of the plea hearing in the record.

2. had already paid the $1,000 in restitution owed to Countryside Animal Clinic, and stated:

“So, as far as the State is concerned, [appellant] does not owe them any restitution.”

{¶ 5} Thereafter, appellant’s trial counsel and appellant made statements in

mitigation. Trial counsel informed the court:

Throughout this case, Ms. Potter has emphasized to me not always even in

relation to the case how much she has struggled. And I know a lot of

individuals struggle, but since her divorce she has faced largely financial

[ruin]. Her field, attending to horses and rodeo, has been devastated both

by recent weather events that have increased the price of hay, as well as by

COVID, which has collapsed the rodeo [circuit]. Moreover, she is in ill

health as reflected by the PSI, and moreover, is still recovering from

COVID, which she had since we were in Court last. She spoke to me

passionately before Court about her struggle in keeping her horses alive

when she herself was bed bound for 3 weeks, trying to feed these horses

without assistance.

For her part, appellant explained to the court that she never intended her check to bounce,

and insisted that she thought there were adequate funds in her account to cover the $1,000

check.

{¶ 6} After considering the foregoing statements and the presentence investigation

report prepared in this case, the trial court ordered appellant to serve 180 days in jail, but

3. stated that the jail sentence “will be suspended and reserved and [appellant] will be

placed on community control for a period of two years.” The court went on to articulate

several conditions of appellant’s community control, which included making payments

totaling $2,495.46 to Countryside Animal Clinic. In order to assure these payments are

made, the trial court stated:

And I want [appellant] to find some form of meaningful employment

outside of taking care of those horses so that we can earn some money to

start making these payments. If [you’re] actually making money with these

horses, I mean if that’s something that [you’re] doing and [you’re] able to

maintain somewhat, then I am fine with that, but I don’t want this to simply

be an expensive hobby where you earn nothing and then say to the Court “I

don’t have any money.” We are running into that enough where people

simply don’t want to work.

{¶ 7} Thereafter, appellant’s trial counsel objected to the trial court’s order

directing appellant to make payments to Countryside Animal Clinic. Counsel questioned

whether the trial court had the authority to grant a judgment, but was interrupted by the

trial court, who stated: “I didn’t grant a judgment. I said she had to make restitution.”

Trial counsel then asked the court to note the objection for the record, and the sentencing

hearing concluded.

4. {¶ 8} Following the sentencing hearing, the trial court prepared a sentencing entry.

In the entry, the court articulated its sentence and ordered appellant to pay the costs of

prosecution, costs of court appointed counsel, and court costs. The court specifically

noted its finding of appellant’s ability to pay such costs in the entry. In addition, the trial

court reiterated several special conditions of appellant’s community control that it

initially raised during the sentencing hearing. Notably, the trial court omitted any

language about making payments to Countryside Animal Clinic, but retained the

condition requiring appellant to “find and maintain gainful employment within 6 months

of sentencing.”

{¶ 9} Upon receipt of the trial court’s sentencing entry, appellant filed her timely

notice of appeal.

B. Assignments of Error

{¶ 10} On appeal, appellant assigns the following errors for our review:

Assignment of Error One: The trial court erred in imposing

restitution.

Assignment of Error Two: The trial court’s community control term

requiring employment is unreasonable in these circumstances.

Assignment of Error Three: The trial court’s imposition of the

maximum sentence is an abuse of discretion.

5. Assignment of Error Four: The imposition of attorney fees is

contrary to law.

II. Analysis

i. The trial court did not order appellant to make restitution.

{¶ 11} In her first assignment of error, appellant argues that the trial court erred in

ordering her to pay restitution to Countryside Animal Clinic. Specifically, appellant

takes issue with the statement made by the trial court at sentencing requiring her to make

payments to Countryside Animal Clinic in the amount of $2,495.46. Noting the state’s

acknowledgement that she already paid restitution to Countryside Animal Clinic (and

therefore owes no further restitution related to this case), and referencing the fact that the

trial court’s sentencing entry is silent with respect to these additional payments, appellant

asserts that “it is unclear whether the trial court intended the $2,495.46 to be ‘restitution,’

or whether it is a term of community control.” As such, appellant asks us to “formally

declare that despite the court’s verbal imposition of this payment at the sentencing

hearing, no restitution or term of community control actually exists as the judgment entry

is silent.”

{¶ 12} For its part, the state asserts that the trial court did not impose restitution.

The state recognizes that the trial court referenced a restitution order at the sentencing

hearing, but acknowledges that such an order is not contained in the court’s sentencing

6. entry. Therefore, the state contends that the trial court did not make a restitution order in

this case.

{¶ 13} It is an axiomatic rule that a trial court speaks through its journal entries.

State v. Miller,

,

,

. Therefore,

“[i]f the journal entry and the judge’s comments conflict, the journal entry controls.”

State v. Hankins,

,

(3d Dist. 1993). Relying

upon this axiomatic rule, the Twelfth District appropriately found that there is no order of

restitution for it to review on appeal when a trial court verbally orders restitution at the

sentencing hearing, but fails to mention restitution in its sentencing entry. State v.

Workman, 12th Dist. Clermont No. CA2009-07-039,

, ¶ 11-12.

{¶ 14} Here, like in Workman, the trial court referenced restitution at the

sentencing hearing, but did not order appellant to pay restitution in its sentencing entry.

Further, it is unclear from the sentencing hearing transcript whether the trial court

intended to characterize the $2,495.46 in payments to Countryside Animal Clinic as

restitution or a condition of community control. When read in its context, it seems as

though the trial court intended the latter. Nonetheless, to the extent the trial court wished

to characterize the payments as restitution, its failure to include the order in its sentencing

entry means that no such restitution order applies in this case.

7. {¶ 15} Given our determination that appellant is not required to pay restitution in

this case, we disagree with appellant’s proposition that the trial court erred in imposing

restitution. Accordingly, appellant’s first assignment of error is not well-taken.

ii. The trial court’s employment condition is reasonable in this case.

{¶ 16} In appellant’s second assignment of error, she argues that the trial court’s

imposition of a condition of community control requiring her to seek and obtain

employment is unreasonable under the circumstances of this case. Appellant takes issue

with the trial court’s condition, because she asserts that she already has income-

generating employment via her horse business.

{¶ 17} At the outset, we reject the factual predicate upon which appellant’s

argument is based, namely that the trial court imposed a condition upon appellant that

requires her to obtain employment in addition to her alleged self-employment. Our

review of the sentencing transcript reveals that the trial court was concerned with

appellant securing employment, of any kind, that would generate an income sufficient to

meet appellant’s financial needs. The court did not exclude appellant’s horse business as

a means of satisfying its employment condition, so long as it actually generates an

income and is not simply an “expensive hobby.” With this observation in mind, we will

proceed to examine the merits of appellant’s argument.

{¶ 18} Under R.C. 2929.25(C)(2), a trial court sentencing an offender to

community control for a misdemeanor offense must “require as a condition of any

8. community control sanction that the offender abide by the law and not leave the state

without the permission of the court or the offender’s probation officer.” Additionally, the

court is permitted to “impose additional requirements on the offender” in order to serve

the interest of doing justice, rehabilitate the offender, and ensure the offender’s good

behavior.

The offender’s compliance with these additional requirements is treated as

a condition of the community control sanction imposed by the trial court.

{¶ 19} A trial court enjoys broad discretion in imposing conditions of community

control under R.C. 2929.25 and we will not reverse the trial court’s imposition of such

conditions absent a finding of an abuse of discretion. State v. Hause, 12th Dist. Warren

No. CA2008-05-063,

, citing City of Garfield Heights v. Tvergyak,

8th Dist. Cuyahoga No. 84825,

. An abuse of discretion connotes

that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore,

,

(1983).

{¶ 20} While a trial court has discretion in imposing community control

conditions, such discretion is not limitless. State v. Jones,

,

(1990). The conditions imposed must further the three statutory objectives of

misdemeanor community control (i.e. doing justice, rehabilitating the offender, and

insuring good behavior) and they may not be so broad that they unnecessarily impinge

upon the probationer’s liberty.

In determining whether a condition furthers the

objectives of community control, we consider “whether the condition (1) is reasonably

9. related to rehabilitating the offender, (2) has some relationship to the crime convicted,

and (3) relates to conduct which is criminal or reasonably related to future criminality and

serves the statutory ends of probation.”

.

{¶ 21} Upon consideration of the record, we find the trial court appropriately

ordered appellant to seek and obtain employment as a condition of her community

control. Initially, we note that the employment condition is a nonresidential sanction that

is expressly authorized in the Revised Code. See R.C. 2929.27(A)(10) (permitting a

court that is sentencing an offender for a misdemeanor to impose nonresidential sanctions

including the “requirement that the offender obtain employment”). Further, we find that

the employment condition is reasonably related to the goal of rehabilitating appellant,

bears a relationship to the offense of passing bad checks, and relates to appellant’s

conduct that gave rise to her conviction.

{¶ 22} Appellant’s propensity to pass bad checks in the future will likely diminish

if she improves her economic situation by securing gainful employment. Indeed,

employment (and the compensation associated therewith) is perhaps the most meaningful

step appellant could take to prevent her from being tempted to pass a bad check in the

future. See State v. Cauthen, 1st Dist. Hamilton No. C-130475,

(“Requiring an offender to work can be an important step in her rehabilitation.

Supporting oneself by legal employment helps end the financial incentive of criminal

10. behavior and can, by itself, be salutary, encouraging a sense of accomplishment and

achievement in an offender seeking rehabilitation.”).

{¶ 23} Because the trial court’s community control condition requiring appellant

to seek and obtain employment is specifically authorized by R.C. 2929.27(A)(10) and is

related to the specific facts of this case, we find that the trial court did not abuse its

discretion in imposing it. Accordingly, appellant’s second assignment of error is not

well-taken.

iii. The trial court’s sentence was properly imposed.

{¶ 24} In her third assignment of error, appellant argues that the trial court abused

its discretion by sentencing her to the maximum sentence, because she did not commit

the worst form of the offense of passing bad checks and has no criminal history that

would support the imposition of a maximum sentence.

{¶ 25} We review a misdemeanor sentence for an abuse of discretion. State v.

Johnson, 6th Dist. Lucas Nos. L-20-1164, L-20-1165,

, citing State

v. Perz,

,

,

(6th Dist.). When

imposing a sentence for a misdemeanor offense, a trial court must consider the purposes

and principles of misdemeanor sentencing as set forth in R.C. 2929.21, as well as the

sentencing factors set forth in R.C. 2929.22. Under R.C. 2929.21, a trial court “shall be

guided by the overriding purposes of misdemeanor sentencing,” which are to protect the

public from future crime by the offender and to punish the offender. To achieve those

purposes, R.C. 2929.21 provides that a trial court “shall consider [1] the impact of the

11. offense upon the victim and the need for changing the offender’s behavior, [2]

rehabilitating the offender, and [3] making restitution to the victim * * *.” When a

misdemeanor sentence is imposed within the statutory limits, a reviewing court will

presume that the judge followed these statutes, absent evidence to the contrary.

State/Division of Wildlife v. Coll, 6th Dist. Sandusky No. S-16-022,

, citing Toledo v. Reasonover,

,

(1965), paragraph one

of the syllabus.

{¶ 26} Here, appellant was convicted of a misdemeanor of the first degree, which

is punishable by up to 180 days in jail. R.C. 2929.24(A)(1). As such, the trial court’s

180-day sentence is within the statutory range, and we presume that the sentence was

proper. State v. Jones, 6th Dist. Lucas No. L-16-1014,

.

{¶ 27} Appellant does not present evidence to rebut this presumption. Further, the

trial court indicated its consideration of the principles and purposes of misdemeanor

sentencing and the seriousness and recidivism factors under R.C. 2929.20 and 2929.21,

respectively, prior to imposing its sentence. Nonetheless, appellant argues that there was

no evidence to show that she committed the worst form of the offense of passing bad

checks or that the maximum sentence was necessary to deter her from future offenses.

{¶ 28} In support of her argument, appellant relies upon R.C. 2929.22(C), which

states that a court may only impose the maximum sentence “upon offenders who commit

the worst forms of the offense or upon offenders whose conduct and response to prior

12. sanctions for prior offenses demonstrate that the imposition of the longest jail term is

necessary to deter the offender from committing a future crime.” Appellant’s reliance

upon R.C. 2929.22(C) is misplaced.

{¶ 29} In Jones, we found that sentencing courts are not bound by the judicial

fact-finding component of R.C. 2929.22(C) or the limitation contained therein that only

those offenders who have committed the worst forms of an offense may be given the

maximum sentence. Id. at ¶ 13, citing State v. Nuby, 7th Dist. Mahoning No. 16MA0036,

, State v. Black, 1st Dist. Hamilton No. C-060861, 2007-Ohio-

5871, ¶ 19–21, and State v. Simms, 10th Dist. Franklin No. 05AP-806,

. Therefore, the trial court was not required to find that appellant committed the worst

form of the offense of passing bad checks or that a maximum sentence was necessary to

deter her from committing future offenses before sentencing her to the maximum

sentence.

{¶ 30} In light of the foregoing, we find that the trial court did not abuse its

discretion in sentencing appellant to 180-days in jail. Accordingly, appellant’s third

assignment of error is not well-taken.2

2 It is noteworthy that while the trial court imposed the maximum sentence, it then suspended the sentence in its entirety. Therefore, appellant will not serve any jail time so long as she complies with the conditions of her community control.

13. iv. The trial court acted contrary to law when it ordered appellant to pay the costs of appointed counsel for the first time in its sentencing entry, without first finding that appellant had the ability to pay such costs and imposing the costs at the sentencing hearing.

{¶ 31} In appellant’s fourth assignment of error, she argues that the trial court

erred in ordering her to pay her court-appointed counsel fees.

{¶ 32} On appeal we review whether the imposition of costs was contrary to law.

State v. Tucker, 6th Dist. Wood No. WD-16-063,

. “[W]here a

court imposes the discretionary costs of supervision, confinement, or assigned counsel, ‘it

must affirmatively find that the defendant has, or reasonably may be expected to have,

the ability to pay.’” State v. Connin, 6th Dist. Fulton No. F-20-005,

, quoting State v. Brown, 6th Dist. Lucas No. L-18-1140.

.

{¶ 33} At the sentencing hearing in this case, the trial court informed appellant

that she would be “required to pay any costs.” The court did not delineate those costs,

nor did it make a finding that appellant is able to pay the costs. However, the trial court

was more specific in its sentencing entry, stating: “The Court having considered the

record in this case including the PSI, finds the Defendant does have the ability to pay the

financial sanctions hereinafter imposed. Defendant is ordered to pay all costs of

prosecution, including court appointed counsel fees.”

{¶ 34} In State v. Lewis, 6th Dist. Lucas No. L-18-1069,

, we held

that a trial court may not impose discretionary costs in its sentencing entry if it does not

first make a finding of appellant’s ability to pay and impose those costs at the sentencing

14. hearing. Id. at ¶ 54, citing State v. Temple, 6th Dist. Lucas No. L-18-1070, 2019-Ohio-

3503, ¶ 13; see also State v. Easter,

,

, ¶ 17 (2d Dist.)

(concluding that it was error for the sentencing court to order the defendant to pay court-

appointed counsel fees in the final judgment entry without first making a finding that the

defendant had an ability to pay the fees, and without providing notification of the

imposition of those fees at the sentencing hearing).

{¶ 35} Here, the trial court failed to find that appellant has the ability to pay the

costs of appointed counsel at the sentencing hearing. Further, the trial court did not

clearly impose the costs of appointed counsel at sentencing when it ambiguously ordered

appellant to pay “any costs.” Consistent with our decision in Lewis, we find that the trial

court’s imposition of the costs of appointed counsel for the first time in the sentencing

entry was contrary to law.

{¶ 36} Accordingly, appellant’s fourth assignment of error is well-taken, and the

trial court’s imposition of the costs of appointed counsel is vacated.

III. Conclusion

{¶ 37} In light of the foregoing, the judgment of the Fulton County Court of

Common Pleas is affirmed, in part, and reversed, in part. We hereby vacate the trial

15. court’s imposition of the costs of appointed counsel, and affirm the remainder of the trial

court’s judgment. The parties are ordered to split the costs of this appeal under App.R.

24.

Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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