[Cite as State v. Morgan,

.]

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

State of Ohio Court of Appeals No. L-20-1156 L-21-1017 Appellee L-21-1018

Trial Court No. CR0201901924 CR0201601737 v. CR0201901373

Davalon C. Morgan DECISION AND JUDGMENT

Appellant Decided:

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Bertrand R. Puligandla, for appellant.

*****

DUHART, J.

{¶ 1} In this consolidated appeal, appellant, Davalon Morgan, appeals the

August 12, 2020 judgments of the Lucas County Court of Common Pleas. For the

reasons that follow, we affirm {¶ 2} Appellant sets forth three assignments of error:

I. Crim.R. 11(C)(2)(a) prohibits a trial court from accepting a guilty

plea without first personally addressing the defendant and determining that

he is making the plea voluntarily. Morgan’s plea-hearing colloquy is bereft

of any discussion of whether he made his guilty pleas voluntarily. Must the

Court vacate Morgan’s convictions in Case Nos. CR19-1373 and CR19-

1924 because he did not voluntarily enter his pleas?

II. Under Crim.R. 43(A)(1), the defendant has the right to be

physically present at the imposition of sentence. In its sentencing judgment

entry for Case No. CR19-1373, the trial court ordered that his sentence run

consecutively to those in Case Nos. CR19-1924 and CR16-1737, which it

did not do at Morgan’s sentencing hearing; and in its sentencing judgment

entry for Case No. CR19-1924, the trial court ordered that his sentence run

consecutively to those in Case Nos. CR19-1373 and CR16-1737, which it

did not do at Morgan’s sentencing hearing. Are Morgan’s sentences

contrary to law because the trial court violated his right to be physically

present?

III. A trial court’s assessment of financial sanctions must be

supported by the record. The record here suggests that Morgan is indigent.

Is the fine the trial court assessed in Case No. CR19-1373, and the costs of

2. appointed counsel and of confinement it assessed in all three cases, contrary

to law?

Background

{¶ 3} On April 9, 2016, appellant was indicted in Lucas County Common Pleas

Court, case No. CR16-1737, for trafficking in cocaine, possession of cocaine and

aggravated possession of drugs. Appellant was arraigned and pled not guilty.

{¶ 4} On March 1, 2019, appellant was indicted in Lucas County Common Pleas

Court, case No. CR19-1373, for trafficking in cocaine, possession of cocaine, tampering

with evidence and endangering children. Appellant was arraigned and pled not guilty.

{¶ 5} On May 23, 2019, appellant was indicted in Lucas County Common Pleas

Court, case No. CR19-1924, for trafficking in cocaine, possession of cocaine, aggravated

trafficking in drugs and aggravated possession of drugs. Appellant was arraigned and

pled not guilty.

{¶ 6} On October 24, 2019, appellant pled no contest, in case No. CR16-1737, to

aggravated possession of drugs, and the remaining counts of the indictment were

dismissed. The trial court accepted the plea, appellant was found guilty and sentenced to

a suspended term of 12 months, he was placed on 3 years of discretionary post-release

control, and his driver’s license was suspended for 1 year.

{¶ 7} Also on October 24, 2019, appellant pled guilty, in case No. CR19-1373, to

trafficking in cocaine and endangering children, and in case No. CR19-1924, he pled

3. guilty to trafficking in cocaine and aggravated possession of drugs. The trial court

accepted the pleas and found appellant guilty.

{¶ 8} On August 11, 2020, appellant was sentenced, in case No. CR19-1373, to 30

months in prison for trafficking in cocaine and 6 months in prison for endangering

children, to be served concurrently. The court dismissed the remaining counts of the

indictment. Appellant was also placed on 3 years of post-release control, his driver’s

license was suspended for 5 years, he was assessed a $10,000 fine and he was ordered to

pay the applicable costs of prosecution and supervision.

{¶ 9} On that same day, appellant was sentenced, in case No. CR19-1924, to 17

months in prison for trafficking in cocaine and 11 months in prison for aggravated

possession of drugs, to be served consecutively to each other and consecutively to the

sentence in CR19-1373. The remaining counts of the indictment were dismissed. In

addition, appellant was placed on 3 years of post-release control, his driver’s license was

suspended for 5 years, to run consecutive to the suspension in CR19-1373, and he was

ordered to pay the costs of confinement and any other fees associated with the matter

under R.C. 2947.23, R.C. 9.92, R.C. 2929.18(A) and R.C. 2951.021.

{¶ 10} Also on August 11, 2020, appellant admitted a community control

violation, in case No. CR16-1737, and was sentenced to 10 months in prison, to be served

consecutively to his sentences in case Nos. CR19-1373 and CR19-1924. Appellant was

4. placed on 3 years of discretionary post-release control, and assessed applicable court fees

and costs of confinement.

{¶ 11} On September 11, 2020, appellant filed a timely notice of appeal in case

No. CR19-1924. Thereafter, appeals in case Nos. CR16-1737 and CR19-1373 were filed,

and the appellate cases were consolidated.

First Assignment of Error

{¶ 12} Appellant observes “trial courts must strictly comply with Crim.R.

11(C)(2)(c) (containing the constitutional rights being waived), [while] they need only

substantially comply with Crim.R. 11(C)(2)(a) and (b), which contain non-constitutional

rights.” He asserts that when he entered his guilty pleas, in case Nos. CR19-1373 and

CR19-1924, the trial court completely failed to comply with Crim.R. 11(C)(2)(c) because

the court never determined he was entering his pleas voluntarily. Appellant maintains the

colloquy at his plea hearing is bereft of any discussion of whether he made his guilty

pleas voluntarily, and he was never asked if he was making his pleas “of his own free will

and volition, or whether he was doing so as the result of any threats or promises other

than those contained in the plea agreement.” Appellant contends “there was not any

compliance with the rule, much less substantial, * * * [and this] complete failure excuses

[him] from having to demonstrate prejudice” in order to have his pleas vacated.

5. Law

{¶ 13} “Crim.R. 11 outlines the procedures that trial courts are to follow when

accepting pleas” from criminal defendants. State v. Dangler,

, 2020-

Ohio-2765,

.

{¶ 14} Crim.R. 11(C)(2) provides:

In felony cases the court may refuse to accept a plea of guilty * * *

and shall not accept a plea of guilty * * * without first addressing the

defendant personally either in-person or by remote contemporaneous video

in conformity with Crim.R. 43(A) and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty

involved, and if applicable, that the defendant is not eligible for probation

or for the imposition of community control sanctions at the sentencing

hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty * * * and that the court, upon

acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

6. obtaining witnesses in the defendant’s favor, and to require the state to

prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

{¶ 15} When a defendant seeks to have a plea vacated on appeal because the plea

was not entered in a knowing, intelligent and voluntary manner due to the trial court’s

failure to comply with Crim.R. 11, “the questions to be answered are simply: (1) has the

trial court complied with the relevant provision of the rule? (2) if the court has not

complied fully with the rule, is the purported failure of a type that excuses [an appellant]

from the burden of demonstrating prejudice? and (3) if a showing of prejudice is

required, has the [appellant] met that burden?”

.1 See also State v.

Bursley, 6th Dist. Huron No. H-19-014,

.

{¶ 16} If a trial court failed to explain to a defendant the constitutional rights set

forth in Crim.R. 11(C)(2)(c), a reviewing court presumes the plea was entered

involuntarily and unknowingly and a showing of prejudice is not required in order for the

plea to be vacated.

, citing State v. Clark,

, 2008-

Ohio-3748,

. However, if a trial court failed to completely explain

“other ‘nonconstitutional’ aspects of the plea colloquy, a defendant must affirmatively

show prejudice to invalidate a plea.”

, citing to State v. Veney,

The Dangler court, in effect, halted the different tiers of compliance (i.e., partial or substantial) with Crim.R. 11, noting that “those formulations have served only to unduly complicate what should be a fairly straightforward inquiry.” Dangler at ¶ 17.

7. St.3d 176,

,

. “The test for prejudice is ‘whether

the plea would have otherwise been made.’” Clark at ¶ 32, quoting State v. Nero,

,

(1990).

Analysis

{¶ 17} Appellant challenges the voluntariness of his guilty pleas on the grounds

that the trial court completely failed to comply with Crim.R. 11 because the court did not

expressly ask him if he was voluntarily making his pleas of his own free will or whether

it was the result of threats or promises.

{¶ 18} Pursuant to Dangler, we must determine: whether the trial court complied

with the relevant provisions of Crim.R. 11; if the trial court did not fully comply, whether

appellant must show prejudice; if so, whether appellant has shown prejudice.

{¶ 19} A review of the record, including the transcript from the plea hearing and

the written plea forms executed by appellant, shows the trial court fully complied with

the relevant provisions of Crim.R. 11. At the plea hearing, prior to appellant entering his

pleas, the trial court informed appellant of all of the constitutional rights, set forth in

Crim.R. 11(C)(2)(c), which he would be waiving if he tendered guilty pleas. The trial

court asked appellant:

Do you understand that by entering pleas of guilty you are making

complete admissions to the allegations contained in the indictment in case

2019-1373, that’s to trafficking in cocaine, a felony of the third degree, and

8. endangering children, a misdemeanor of the first degree, and Case Number

2019-1924, that’s to trafficking in cocaine, a felony of the fourth degree,

and aggravated possession of drugs, a felony of the fifth degree? Do you

have any question about that, those guilty pleas?

Appellant indicated he had no questions. The trial court also explained all of the possible

penalties for the four offenses to which appellant was entering guilty pleas, including the

maximum penalties. The court further informed appellant about post-release control with

respect to the three felonies to which he was entering guilty pleas.

{¶ 20} Appellant then pled guilty to the four offenses. The trial court asked

appellant, “why are you entering guilty pleas here today? Are you accepting

responsibility for your actions?” Appellant replied, “Oh, yes, yes. * * * Yes, yes, I’m just

accepting responsibility for what I done.”

{¶ 21} The trial court found appellant “has been informed of all of his

constitutional rights, that he understands the nature of these charges, the effect of his

pleas, as well as the penalties which could be imposed, and that he has made a knowing,

intelligent, and voluntary decision to withdraw his former pleas * * * and tender pleas of

guilty.” The court accepted appellant’s guilty pleas, and found him guilty.

{¶ 22} While the trial court did not specifically ask appellant if he was voluntarily

entering guilty pleas of his own free will or whether it was the result of threats or

promises, Ohio law does not require that a trial court ask these questions. See State v.

9. Gibson, 2d Dist. Montgomery No. 13476,

, *4 (April 12, 1993);

Crim.R. 11(C)(2). Moreover, nothing in the record suggests that appellant was in any

way hesitant or confused about pleading guilty, or coerced into pleading guilty.

{¶ 23} Having found that the trial court fully complied with the relevant

provisions of Crim.R. 11, our inquiry pursuant to Dangler ends. Appellant is not entitled

to have his pleas vacated. Accordingly, appellant’s first assignment of error is not well-

taken.

Second Assignment of Error

{¶ 24} Appellant asserts his sentences are contrary to law. Appellant argues the

trial court modified the sentence imposed, in case No. CR19-1373, in its judgment entry

when it ordered the sentence to run consecutively to the sentences in case Nos. CR19-

1924 and CR16-1737, but the court did impose consecutive sentences at the sentencing

hearing. In addition, appellant contends, in case No. CR19-1924, the trial court modified

the sentence it issued at the sentencing hearing when it ordered, in its judgment entry,

that the sentence be served consecutively to the sentences in case Nos. CR19-1373 and

CR16-1737, but the court did impose consecutive sentences at the sentencing hearing.

{¶ 25} Appellant submits, under Crim.R. 43(A)(1), a defendant must be present at

the imposition of sentence, and a trial court violates a defendant’s right to be present

when the court’s sentencing judgment entry differs from the sentence imposed at the

10. sentencing hearing. Appellant maintains since he was not present when the court

imposed consecutive sentences, his sentences are contrary to law.

Law

{¶ 26} When reviewing felony sentences, we apply the standard of review set

forth in R.C. 2953.08(G)(2). That statute specifies that an appellate court may increase,

reduce, modify or vacate and remand a challenged felony sentence if the appellate court

clearly and convincingly finds “the record does not support the sentencing court’s

findings” under certain statutory provisions or “the sentence is otherwise contrary to

law.”

{¶ 27} Crim.R. 43(A)(1) provides “the defendant must be physically present at

every stage of the criminal proceeding and trial, including the * * * imposition of

sentence.” However, “[t]he defendant may waive, in writing or on the record, the

defendant’s right to be physically present under these rules with leave of court.” Crim.R.

43(A)(3).

{¶ 28} Courts have found a trial court errs and Crim.R. 43(A) is violated when a

trial court’s sentencing entry differs from the sentence announced at the sentencing

hearing in a defendant’s presence. See State v. Jordan, 10th Dist. Franklin No. 05AP-

1330,

. Such an error requires a remand for resentencing.

Analysis

11. {¶ 29} At appellant’s sentencing hearing, in case Nos. CR19-1373, CR19-1924

and CR16-1737, the trial court stated at the outset:

We have both Mr. Luettke and Mr. Potts on behalf of Mr. Morgan. Mr.

Morgan is present from the Lucas County Correction Center. * * * Either

Mr. Potts or Mr. Luettke, do you formally waive your client’s Criminal

Rule 43 right to be physically present in the courtroom for today’s

sentencing hearing?

Mr. Luettke responded, “Yes, judge, we do. The court stated “Okay. And we are all

present here via Zoom video technology.”

{¶ 30} The court then sentenced appellant, in case No. CR19-1373, to 30 months

in prison on the trafficking in cocaine offense and 180 days in the Corrections Center of

Northwest Ohio (“CCNO”) on the endangering children offense. The court ordered the

sentences to run concurrent by operation of law, as the endangering children offense is a

misdemeanor. In case No. CR19-1924, the court sentenced appellant to 17 months in

prison on the trafficking in cocaine offense, and 11 months in prison on the aggravated

possession of drugs offense. The court ordered the sentences to be served consecutively

to one another for a total prison term of 28 months, and the sentences were “also ordered

consecutive to Case Number 2019-1373.” In case No. CR16-1737, the court found

appellant violated the terms and conditions of his community control and sentenced him

12. to 10 months in prison on the aggravated possession of drugs charge. The court ordered

the sentence to be served “consecutively to Case Numbers 2019-1373 and 2019-1924.”

{¶ 31} In the judgment entry for case No. CR19-1373, the court ordered the

sentences to run concurrent to each other, and “[t]he sentence imposed in this case is

ordered served consecutive to the sentences imposed in case no. CR201601737 and case

no. CR201901924.” In the judgment entry for case No. CR19-1924, the court ordered the

sentences imposed to be “served consecutive one to another and consecutive to the

sentences imposed in case no. CR201901373 and case no. CR201601737.” And, in the

judgment entry for case No. CR16-1737, the court ordered the sentence imposed to be

“served consecutive to the sentences imposed in case no. CR201901373 and

CR201901924.”

{¶ 32} Upon review, we find appellant was present for the imposition of his

sentences at the sentencing hearing held via Zoom, and his counsel waived appellant’s

Crim.R. 43 right to be physically present in court. We further find appellant’s sentences

imposed at the sentencing hearing are the same sentences which are reflected in the

judgment entries. We therefore find appellant’s sentences are not contrary to law.

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

Third Assignment of Error

{¶ 33} Appellant asserts the trial court’s assessment of financial sanctions must be

supported by the record, and the record suggests he is indigent. Appellant observes in

13. case No. CR19-1373, the court imposed a $10,000 fine and assessed the costs of

appointed counsel and confinement, and in the two other cases, the court assessed the

cost of confinement. Appellant argues that while the court stated he had or may

reasonably be expected to have the ability to pay the fine and costs, the record contradicts

this determination. In addition, appellant claims the court never determined the amount

of the cost of confinement that he was able to pay, as required by R.C. 2929.18(A)(5).

{¶ 34} Appellant submits, in case No. CR19-1373, his counsel requested that the

trial court waive the fine because appellant was indigent, but the court denied the request,

stating the court did not find appellant indigent. Appellant notes in the presentence report

from case No. CR16-1737, it showed he earned $9.25 per hour, and in his previous

employment he earned $9.00 per hour. Appellant also indicates, according to a risk

assessment filed with the presentence report, he “‘lacks financial stability,’” and “his

current financial situation is characterized by ‘problems.’” Appellant maintains he will

not have the ability to pay the fine and costs. Thus, appellant insists, the portions of his

sentences ordering him to pay the fine and costs of appointed counsel and confinement

are contrary to law.

Standard of Review

{¶ 35} “Our standard of review on this issue is whether the imposition of costs and

financial sanctions was contrary to law.” State v. Farless, 6th Dist. Lucas Nos. L-15-

1060, L-15-1061,

.

14. Law

{¶ 36} R.C. 2929.19(B)(5) provides that, “[b]efore imposing a financial sanction

under section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised

Code, the court shall consider the offender’s present and future ability to pay the amount

of the sanction or fine.”

{¶ 37} R.C. 2929.18 states in pertinent part:

Except as otherwise provided in this division and in addition to imposing

court costs pursuant to section 2947.23 of the Revised Code, the court

imposing a sentence upon an offender for a felony may sentence the

offender to any financial sanction or combination of financial sanctions

authorized under this section or, in the circumstances specified in section

2929.32 of the Revised Code, may impose upon the offender a fine in

accordance with that section. Financial sanctions that may be imposed

pursuant to this section include, but are not limited to, the following:

***

(3) Except as provided in division (B)(1), (3), or (4) of this section, a fine

payable by the offender to the state, to a political subdivision when

appropriate for a felony, or as described in division (B)(2) of this section to

one or more law enforcement agencies, in the following amount:

***

15. For a felony of the third degree, not more than ten thousand dollars[.]

***

(5)(a) Reimbursement by the offender of any or all of the costs of sanctions

incurred by the government, including the following:

***

(ii) All or part of the costs of confinement under a sanction imposed

pursuant to section 2929.14, 2929.142, or 2929.16 of the Revised Code,

provided that the amount of reimbursement ordered under this division

shall not exceed the total amount of reimbursement the offender is able to

pay as determined at a hearing and shall not exceed the actual cost of the

confinement[.]

{¶ 38} A trial court has the discretion to access the costs of confinement and

appointed counsel. State v. Gray, 6th Dist. Lucas No. L-15-1072,

.

If a trial court chooses to impose these costs, it must affirmatively find the defendant has,

or reasonably may be expected to have, the ability to pay. Id. at ¶ 21. While a trial court

does not have to conduct a formal hearing on a defendant’s ability to pay discretionary

costs, a finding of the ability to pay must be supported by clear and convincing evidence

in the record. State v. Wymer, 6th Dist. Lucas No. L-18-1108,

.

When the record on appeal reflects the trial court considered a presentence investigation

report (PSI) or other information which includes the defendant’s age, health, employment

16. history, or level of education, this is sufficient to support the trial court’s imposition of

discretionary costs. State v. Ivey, 6th Dist. Lucas No. L-19-1243,

.

In addition, “the trial court is not required to state the actual costs of confinement at

sentencing.” State v. Caldwell, 6th Dist. Lucas No. L-17-1054,

.

Analysis

{¶ 39} A review of the record reveals that at the beginning of appellant’s

sentencing hearing, in case Nos. CR19-1373, CR19-1924 and CR16-1737, the trial court

stated it “considered the record, oral statements, any victim impact statement, and PSI

prepared.” The court noted appellant was to be sentenced on his eleventh and twelfth

felony convictions, and a community control violation. The court also observed that

appellant had 62 misdemeanor convictions.

{¶ 40} When imposing sentence in case No. CR19-1373, the trial court found

appellant has “or may reasonably be expected to have the means to pay for all or part of

the applicable court-appointed counsel fees or costs of confinement,” and ordered

appellant to pay the applicable costs of prosecution and supervision. The court also

imposed a $10,000 fine as to the trafficking in cocaine offense. Thereafter, appellant’s

trial counsel stated “I do understand the [$]5,000 is mandatory, but as [appellant] is

indigent at this point, would the court consider waiving the fine?” The court responded,

“[n]o, the court does not find [appellant] indigent at this time and will not waive that

17. portion of the fine.” The court mentioned it understood there was an agreed upon civil

forfeiture of $512.

{¶ 41} In case No. CR19-1924, the court said to appellant before imposing

sentence that it “considered your present and future ability to pay,” and ordered appellant

“to pay the costs of confinement and any other fees associated with this matter” pursuant

to certain statutes. The court also accepted the agreed upon forfeiture of $1,481.

{¶ 42} Prior to imposing sentence in case No. CR16-1737, the court said to

appellant that it “considered your present and future ability to pay,” and found appellant

has “or may reasonably be expected to have the means to pay for all or part of the

applicable court-appointed counsel fees and costs of confinement.” The court ordered

appellant to pay those costs.

{¶ 43} Nothing in the record indicates appellant sought a waiver of costs for any

of his three cases.

{¶ 44} All of the August 12, 2020 judgment entries for the three cases included the

following language:

Defendant found to have, or reasonably may be expected to have, the

means to pay all or part of the applicable costs of supervision, confinement,

assigned counsel, and prosecution as authorized by law. Defendant ordered

to reimburse the State of Ohio and Lucas County for such costs. This order

18. of reimbursement is a judgment enforceable pursuant to law by the parties

in whose favor it is entered.

{¶ 45} Also in the record are several PSI reports, the most recent of which set

forth appellant’s age, his current and previous employers, his wages, the length of his

jobs and the extent of his education. And, it was documented in the latest PSI that

appellant possessed several cell phones and currency when arrested. The record further

shows appellant had a driver’s license.

Findings

{¶ 46} We find the record does not contradict the trial court’s determination that

appellant had or may reasonably be expected to have the ability to pay the fine and costs,

as the record clearly and convincingly supports the trial court’s finding that appellant has

or may reasonably have the ability to pay the fine and financial sanctions which were

imposed. We further find the trial court was not required to determine the amount of the

costs of confinement appellant was able to pay. Finally, we find the court’s imposition of

discretionary costs is not contrary to law. Accordingly, appellant’s third assignment of

error is not well-taken.

{¶ 47} The August 12, 2020 judgments of the Lucas County Court of Common

Pleas are affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs incurred

on appeal.

Judgments affirmed.

19. State of Ohio v. Davalon C. Morgan L-20-1156; L-21-1017; L-21-1018

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

Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, P.J. ____________________________ Myron C. Duhart, 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/.

20.