[Cite as State v. Bricker,

.]

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

State of Ohio Court of Appeals No. F-21-013

Appellee Trial Court No. 21CR013

v.

Richard A. Bricker DECISION AND JUDGMENT

Appellant Decided: September 30, 2022

*****

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

Adam H. Houser, for appellant.

*****

DUHART, J.

{¶ 1} This is an appeal by appellant, Richard Bricker, from the November 24,

2021 judgment of the Fulton County Court of Common Pleas. For the reasons that

follow, we affirm, in part, and reverse, in part. {¶ 2} Appellant sets forth three assignments of error:

1. Trial Court Failed to Follow Criminal Rule 11 When it Failed to

Properly Inform Defendant of His Post Release Control Sanctions at Plea[.]

2. The Trial Court Failed to Make the Proper Findings Under Ohio

Law When It Sentence[d] Appellant to [a] Consecutive Sentence to his

Sentence in 21CR0025[.]

3. The Trial Court Made Reversable [sic] Error When It Ordered

Appellant Who Is Indigent to Pay Court Costs.

Facts

{¶ 3} On August 16, 2021, appellant was charged with ten counts of violation of a

protection order in Fulton County Court of Common Pleas, case No. 21CR103. On

October 19, 2021, appellant pled guilty to three counts of violating a protection order, in

violation of R.C. 2919.27(A)(1), felonies of the fifth degree, and each count carried a

specification that appellant had been convicted of or pled guilty to one or more violations

of R.C. 2919.27 in Defiance County, Henry County or Fulton County. In exchange, the

state agreed to dismiss the remaining seven counts and make no recommendation at

sentencing. The judgment entry was filed on October 20, 2021.

{¶ 4} On November 23, 2021, the sentencing hearing was held. The court

imposed prison terms of 11 months on each count, to be served concurrently, but

consecutively to the sentence appellant was serving in Fulton County Court of Common

2. Pleas, case No. 21CR25. Appellant was also advised that he was subject to a post release

control period of three years, and was responsible for costs, except the costs of his court-

appointed attorney. The judgment entry of sentence was filed on November 24, 2021.

Appellant appealed. We will address appellant’s assignments of error out of order.

Second Assignment of Error

{¶ 5} Appellant contends the trial court did not make the proper findings for

consecutive sentences, as “all the court stated * * * was [appellant] created great

psychological harm to the alleged victim.” Appellant submits that this portion of the

sentence should be overturned.

{¶ 6} The state maintains the trial court’s sentencing colloquy met all of the

statutory requirements, and consecutive sentences were properly imposed.

Law

{¶ 7} The standard of appellate review for felony sentences is set forth in R.C.

2953.08, which provides, inter alia, that appellate review is limited to whether there is

clear and convincing evidence to support the court’s findings and whether the sentence is

contrary to law. R.C. 2953.08(G)(2). See also State v. Tammerine, 6th Dist. Lucas No.

L-13-1081,

.

{¶ 8} Generally, multiple terms of incarceration are to be served concurrently

unless the trial court, in its discretion, orders the sentences to be served consecutively.

R.C. 2929.41(A) and (B)(2); R.C. 2929.14(C)(4). Before imposing consecutive

3. sentences, R.C. 2929.14(C)(4) mandates the trial court find consecutive sentences are

“necessary to protect the public from future crime or to punish the offender,”

“consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public,” and that one of the following

circumstances is present:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender. R.C. 2929.14(C)(4).

{¶ 9} The trial court must engage in the correct analysis, state its statutory findings

during the sentencing hearing, and incorporate those findings into its sentencing entry.

State v. Beasley,

,

,

, citing

4. State v. Bonnell,

,

,

. A word-for-

word recitation of the statutory language is not necessary, as long as the record supports

the trial court’s findings.

. If the trial court fails to make the required

findings at a sentencing hearing for consecutive sentences under R.C. 2929.14(C)(4), the

proper remedy is to remand the matter for a new sentencing hearing. State v. Resendez,

6th Dist. Lucas No. L-20-1020,

.

Analysis

{¶ 10} The record shows at appellant’s sentencing hearing, the trial court, when

imposing consecutive sentences, stated, “[d]efendant has a history of domestic violence,

violating protection orders-the fact that he now seems to have seen Jesus is to a certain

exten[t] to the Court’s opinion[,] convenient. I don’t know how many times you don’t

get what the word no means.” In the judgment entry of sentence, regarding consecutive

sentences, the trial court set forth:

The Court further finds that consecutive sentences are necessary to protect

the public from future crime or to punish Defendant and that consecutive

sentences are not disproportionate to the seriousness of Defendant’s

conduct and to the danger Defendant poses to the public. The Court further

finds that the harm caused by Defendant was so great or unusual that no

single prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of Defendant’s

5. conduct, and Defendant’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by Defendant.

{¶ 11} Upon review, we find the trial court made the correct findings in the

judgment entry of sentence, however the court failed to satisfy all of the R.C.

2929.14(C)(4) requirements when it imposed consecutive sentences at the sentencing

hearing. At the hearing, the trial court referenced appellant’s history of domestic

violence offenses and violating protection orders, but the court did not indicate that

consecutive sentences were necessary to protect the public from future crime by appellant

or to punish him, nor did the court express that consecutive sentences were not

disproportionate to the seriousness of appellant’s conduct and to the danger he poses to

the public. In addition, the trial court did not specify, at the hearing, that the harm

appellant caused was so great or unusual that no single prison term for any of the offenses

he committed as part of any of his courses of conduct adequately reflected the seriousness

of his conduct. Since the trial court failed to make the required consecutive sentencing

findings during the sentencing hearing, we conclude appellant’s sentence is contrary to

law. See R.C. 2953.08(G)(2). As such, this matter must be remanded for a new

sentencing hearing. Accordingly, appellant’s second assignment of error is well-taken.

6. First Assignment of Error

{¶ 12} Appellant argues the trial court erred when it informed him, at both the plea

hearing and sentencing hearing, that he was subject to a post release control period of

three years. Appellant asserts his plea was not knowingly and voluntarily made as he was

not properly informed that discretionary post release control could only last two years.

Appellant submits his trial counsel informed the trial court there was a change in the law

and that the judge was incorrect, but the judge did not correct himself. In support,

appellant cites to R.C. 2967.28(C), which became effective September 30, 2021, and

Crim.R. 11(C)(2)(a).

{¶ 13} The state counters if appellant was willing to plead guilty while believing

the post release control period was three years, he could not have sustained any prejudice

if the post release period is actually two years. The state contends the matter should be

remanded for resentencing on the post release control issue. In support, the state cites to

several cases including State v. Rarden, 12th Dist. Butler No. CA2018-03-044, 2018-

Ohio-4487, ¶ 13-14.

Law

{¶ 14} R.C. 2967.28 (C) provides in pertinent part:

Any sentence to a prison term for a felony of the * * * fifth degree * * *

shall include a requirement that the offender be subject to a period of post-

release control of up to two years after the offender’s release from

7. imprisonment, if the parole board, in accordance with division (D) of this

section, determines that a period of post-release control is necessary for that

offender.

{¶ 15} In Woods v. Telb,

,

(2000), the

Ohio Supreme Court held “pursuant to R.C. 2967.28(B) and (C), a trial court must inform

the offender at sentencing or at the time of a plea hearing that post-release control is part

of the offender’s sentence.” If a court incorrectly informs an offender about post release

control, the imposition of post release control must be vacated and the matter remanded

for resentencing. See State v. Wright,

,

(8th Dist.).

{¶ 16} Crim.R. 11(C)(2) states in relevant part:

In felony cases the court * * * shall not accept a plea of guilty * * * without

first addressing the defendant personally * * * 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.

{¶ 17} If a trial court fails to literally comply with Crim.R. 11, the appellate court

must engage in a multitiered analysis in order to determine whether the trial court failed

8. to explain the defendant’s constitutional or nonconstitutional rights and, if there was a

failure, to decide the significance of the failure and the appropriate remedy. State v.

Clark,

,

,

. If a trial court “fails

to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c), the guilty or no-

contest plea is invalid ‘under a presumption that it was entered involuntarily and

unknowingly.’” (Citation omitted.) Clark at ¶ 31. If a trial court “imperfectly explained

nonconstitutional rights such as the right to be informed of the maximum possible penalty

* * * a substantial-compliance rule applies. Id. “Under this standard, a slight deviation

from the text of the rule is permissible; so long as the totality of the circumstances

indicates that ‘the defendant subjectively understands the implications of his plea and the

rights he is waiving,’ the plea may be upheld.” (Citation omitted.) Id. When it is

claimed that the trial court failed to comply with a nonconstitutional advisement, we

require that the appellant show a “prejudicial effect,” then we consider “whether the plea

would otherwise have been made.” Id. at ¶ 32.

{¶ 18} In Rarden, 12th Dist. Butler No. CA2018-03-044,

, the

appellate court observed that the trial court orally advised Rarden of the imposition of

three years of postrelease control. Id. at ¶ 11. Rarden argued the trial court’s notification

implied that postrelease control was mandatory, when it was optional. Id. at ¶ 12. The

appellate court ruled the judgment entry provided the appropriate notice of postrelease

control, thus Rarden’s sentence was not void. Id. at ¶ 13. The appellate court further

9. held “Rarden is unable to show any prejudice because of any purported overstatement of

postrelease control. As a result, any error would be harmless.” Id. at ¶ 14.

Analysis

{¶ 19} At appellant’s plea hearing, the trial court advised him that he “might be

required to serve a period of post release control * * * this is still a discretionary three

year term.” At the sentencing hearing, the trial court advised appellant that he “shall be

subject to further optional period of supervision under post release control, I believe of

three years[,] * * * because that’s the maximum.” The judgment entry of sentence

reflects that “[t]he Court further advised Defendant that he was subject to a discretionary

post release control period of three years.”

{¶ 20} Upon review, we find the trial court incorrectly informed appellant that the

period of post release control was three years rather than two years. Since the trial court

improperly explained to appellant the nonconstitutional right of the maximum possible

penalty, we apply the substantial-compliance rule where appellant must show a

prejudicial effect in order for his plea to be vacated. The record reveals appellant has not

argued or demonstrated any prejudice because of the overstated period of post release

control. We therefore find appellant has not shown he was prejudiced by the overstated

term of post release control, and is not entitled to have his plea vacated. However, we

vacate the trial court’s imposition of post release control and remand the case for

10. resentencing on the issue of post release control. Accordingly, appellant’s first

assignment of error is not well-taken.

Third Assignment of Error

{¶ 21} Appellant argues the trial court committed reversible error when it ordered

him to pay court costs. Appellant notes the court waived the fees of his court-appointed

attorney, but still imposed court costs. Appellant maintains he is on social security,

which means he is incapable of working. Appellant observes the court recognized he

cannot work but still imposed costs. Appellant cites to State v. Holt, 6th Dist. Lucas No.

L-19-1101,

.

{¶ 22} The state counters the imposition of court costs is mandatory under Ohio

law without consideration of whether the defendant has the ability to pay. The state cites

to several cases in support of its position, including State v. Lantz, 6th Dist. Fulton No. F-

18-011,

.

{¶ 23} At appellant’s sentencing hearing, the trial court stated “[d]efendant will be

responsible for costs-defendant is on social security, therefore not going to make him pay

the costs of his court[-]appointed counsel as part of the court costs in this case.” No

objection was made regarding the trial court’s imposition of costs.

{¶ 24} In the judgment entry of sentence, the trial court set forth “[d]efendant is

ordered to pay all court costs.”

11. Law

{¶ 25} Court costs, costs, or costs of this action means “any costs that the Revised

Code requires a court to impose upon an offender who has been convicted.” Lantz at ¶

11. The costs of prosecution are mandatory, pursuant to R.C. 2947.23(A)(1), and trial

courts are obligated to impose the costs of prosecution irrespective of a defendant’s

ability to pay. State v. White,

,

,

, ¶ 8.

See also State v. Rohda, 6th Dist. Fulton No. F-06-007,

. Other

costs, such as the costs of confinement, are not mandatory but may be imposed after the

trial court finds the defendant has the ability to pay. See R.C. 2929.18(A)(5)(a)(ii); State

v. Lincoln, 6th Dist. Lucas No. L-15-1080,

.

{¶ 26} When a defendant fails to lodge an objection to an issue before the trial

court, “[a]n appellate court need not consider an error that was not called to the attention

of the trial court at a time when such error could have been avoided or corrected by the

trial court.” State v. Carter,

,

(2000). Thus, the

error is waived absent plain error.

See also Crim.R. 52(B) (“Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of the court.”). “Plain error does not exist unless it can be said that but for the

error, the outcome of the trial would clearly have been otherwise.” State v. Wogenstahl,

,

(1996).

12. Analysis

{¶ 27} Upon review, since appellant did not object to the trial court’s imposition

of costs, we are limited to a plain error review. When the trial court ordered appellant to

pay costs, it did not specify which costs it was imposing, although it did exclude the costs

of court-appointed counsel. Thus, we find the court imposed the costs of prosecution.

See Lantz. As the costs of prosecution are mandatory and there is no requirement for the

trial court to consider appellant’s ability to pay, it was not plain error for the trial court to

order appellant to pay the costs of prosecution. Accordingly, appellant’s third assignment

of error is not well-taken.

{¶ 28} The November 24, 2021 judgment of the Fulton County Court of Common

Pleas is affirmed, in part, and reversed, in part, and this case is remanded for resentencing

at a new sentencing hearing. Pursuant to App.R. 24, the parties are ordered to split the

costs of this appeal.

Affirmed, in part, reversed, in part, and remanded.

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

13. State of Ohio v. Richard A. Bricker F-21-013

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ Myron C. Duhart, 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/.

14.