State v. Favers

2013 Ohio 5859

Opinion

[Cite as State v. Favers, 2013-Ohio-5859.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13CA42 EDWARD FAVERS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2012CR0813D

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 27, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. JOHN C. O'DONNELL Prosecuting Attorney 10 West Newlon Place Richland County, Ohio Mansfield, Ohio 44902

By: JILL M. COCHRAN Assistant Richland County Prosecutor 38 South Park Street Manfield, Ohio 44902 Richland County, Case No. 13CA42 2

Hoffman, P.J.

{¶1} Defendant-appellant Edward R. Favers appeals his sentence entered by

the Richland County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

STATEMENT OF PARTIAL FACTS AND PROCEDURAL HISTORY1

{¶2} Appellant was employed as a juvenile parole officer with the Ohio

Department of Youth Services. On June 6, 2012, an officer of the Mansfield Police

Department observed Appellant, during work hours and while driving a State owned

DYS vehicle, pick up a well known prostitute. Appellant paid the prostitute to engage in

sexual intercourse with him on his pontoon boat. Appellant later falsified his weekly

itinerary report to ODYS to reflect he worked until 4:30 p.m. on the same day.

{¶3} Further investigation revealed Appellant made twenty-seven cell phone

calls on his personal cell and three phone calls on his State owned cell to the same

prostitute in order to set up meet times. It was also determined three other prostitutes

had engaged in prostitution with Appellant either in his car or on his boat. All four

prostitutes advised Appellant would pick them up in his State issued ODYS vehicle.

{¶4} As a result, Appellant was placed on administrative leave with pay. He

retired on October 12, 2012.

{¶5} Appellant was charged with numerous offenses and, after negotiations,

entered a plea of guilty to one count of tampering with government records, one count

of promoting prostitution and one count of soliciting. The State agreed to dismiss

sixteen remaining counts. At sentencing on April 16, 2013, the Richland County Court

1 A full rendition of the underlying facts and procedural history is unnecessary for our resolution of this appeal. Richland County, Case No. 13CA42 3

of Common Pleas imposed a three year term of community control, 400 hours of

community service and ordered Appellant to pay a $15,000 fine.

{¶6} Appellant now appeals2, assigning as error:

{¶7} “I. THE COURT ABUSED ITS DISCRETION BY FINING

DEFENDANT/APPELLANT A [SIC] $15,000.00 WITHOUT EVIDENCE THAT

DEFENDANT HAD PRESENT OR FUTURE ABILITY TO PAY SAID FINE.”

{¶8} R.C. 2929.19(B)(6) and R.C. 2929.18(E) require a court to inquire as to a

defendant's present and future ability to pay a fine prior to imposing one. When

determining an offender's present or future ability to pay, there are no expressed factors

to be considered or specific findings to be made. A trial court is not required to hold a

hearing to determine an offender's ability to pay. However, there must be some

evidence on the record the trial court considered the defendant's present and future

ability to pay the sanction. State of Ohio v. Hayes, 4th Dist. No. 08AP233, 2009-Ohio-

1100.

{¶9} The record demonstrates at the sentencing hearing the trial court found

Appellant was employed by a family business and had entered into early retirement

from ODYS. The record further established he was recently hired at Home Depot to

support his four children. Additionally, Appellant had not filed an affidavit of indigency

until he filed the within appeal. As a term of his community control, the trial court

ordered Appellant seek and maintain employment.

2 Appellant has been determined indigent for purposes of this appeal, but had not been determined to be indigent at the time of trial. Richland County, Case No. 13CA42 4

{¶10} We find, the record does not affirmatively demonstrate the trial court did

not consider evidence regarding Appellant’s present and future ability to pay the

sanction.

{¶11} The sole assignment of error is overruled.

{¶12} Appellant's sentence in the Richland County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. PATRICIA A. DELANEY

___________________________________ HON. CRAIG R. BALDWIN Richland County, Case No. 13CA42 5

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : EDWARD FAVERS : : Defendant-Appellant : Case No. 13CA42

For the reason stated in our accompanying Opinion, Appellant's sentence in the

Richland County Court of Common Pleas is affirmed. Costs to Appellant

___________________________________ HON. CRAIG R. BALDWIN