State v. Hacker

2020 Ohio 5048, 161 N.E.3d 112

• Court: Ohio Court of Appeals
• Decided: October 26, 2020
• Docket: 8-20-01
• Status: Published

Opinion

[Cite as State v. Hacker, 2020-Ohio-5048.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-20-01

v.

CHRISTOPHER P. HACKER, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR 19 06 0192

Judgment Affirmed

Date of Decision: October 26, 2020

APPEARANCES:

Marc S. Triplett for Appellant

Eric C. Steward for Appellee Case No. 8-20-01

ZIMMERMAN, J.

{¶1} Defendant-appellant, Christopher P. Hacker (“Hacker”), appeals the

January 28, 2020 judgment entry of sentence of the Logan County Court of

Common Pleas. We affirm.

{¶2} This case stems from Hacker’s trespass into the victim’s home (while

the victim and Hacker’s wife were present), and Hacker’s threats toward the victim

while brandishing a deadly weapon. (Doc. No. 18).

{¶3} On June 11, 2019, the Logan County Grand Jury indicted Hacker on the

following criminal charges: Count One of aggravated burglary in violation of R.C.

2911.11(A), (B), a first-degree felony with a three-year firearm specification under

R.C. 2941.145(A); Count Two also for aggravated burglary in violation of R.C.

2911.11(A)(2), (B), a first-degree felony with a three-year firearm specification

under R.C. 2941.145(A); and Count Three of aggravated menacing in violation of

R.C. 2903.21(A), (B), a first-degree misdemeanor. (Doc. No. 1).

{¶4} Hacker appeared for arraignment on June 14, 2019 and entered pleas of

not guilty. (Doc. No. 13). However, on December 20, 2019, Hacker withdrew his

pleas of not guilty and entered guilty pleas under a negotiated plea agreement. (Doc.

No. 54). In exchange for his guilty pleas to Count One and the firearm specification

(amended from a three-year to a one-year specification under R.C. 2941.141(A)),

the State agreed to dismiss Counts Two and Three. (Id.); (Dec. 20, 2019 Tr. at 3-5,

-2- Case No. 8-20-01

20-22). The trial court conducted a Crim.R. 11 colloquy, accepted Hacker’s guilty

plea, and ordered a presentence investigation report (“PSI”) be prepared. (Id.); (Id.

at 6-22). Important to appellant’s appeal, prior to his sentencing hearing, Hacker

filed an objection to the imposition of indefinite-sentencing provisions under the

Reagan Tokes Law, Am.Sub.S.B. 201, 2018 Ohio Laws 157 (“S.B. 201”). (Doc.

No. 51).

{¶5} On January 27, 2020, the trial court sentenced Hacker to serve an

indefinite prison term with a minimum prison term of six years and a maximum

prison term of nine years under Count One and a mandatory definite prison term of

one year under the firearm specification.1 (Doc. No. 60). The indefinite prison term

under Count One was ordered to be served consecutively to the mandatory definite

prison term under the firearm specification.2 (Id.). Then, the trial court imposed a

$10,000 fine and ordered Hacker to pay court costs, the costs of prosecution, and

fees under R.C. 2929.18. (Id.).

{¶6} On February 7, 2020, Hacker filed a notice of appeal. (Doc. No. 77).

He raises three assignments of error for our review, which we will address together.

1 Hacker’s gun specification could not be used to increase the maximum prison term as to Count One. See R.C. 2929.144(B)(4). R.C. 2929.144 is silent as to the impact of his gun specification on the minimum prison term as to Count One. The trial court in this instance was required to impose the gun specification (a mandatory definite prison term) separately, and to order it to be served prior to and consecutive to the stated minimum term as to Count One. See R.C. 2929.14(C)(1)(a). 2 Hacker was given 11 days’ jail-time credit. (Doc. No. 60).

-3- Case No. 8-20-01

Assignment of Error I

The Trial Court Erred When It Did Not Sustain Mr. Hacker’s Objections to the Sentencing Provisions Contained in R.C. 2967.271 [sic] (1.27.20. Tr. 25).

Assignment of Error II

As Amended By The Reagan Tokes Act, The Revised Code’s Sentences For First and Second Degree Qualifying Felonies Violate The United States And Ohio Constitutions. (1.27.20. Tr. 25).

Assignment of Error III

The Trial Court Erred When It Imposed a Fine of Ten Thousand Dollars (1.27.20, [sic] Tr. 27).

{¶7} In his first and second assignment of error, Hacker asserts that the trial

court erred in sentencing him under the Reagan Tokes Law because it violates his

rights to a trial by jury and due process of law, and the constitutional requirement

of separation of powers rendering his sentence contrary to law. In his third

assignment of error, Hacker argues that the trial court erred when it failed to

consider Hacker’s ability to pay the financial sanction imposed under R.C.

2929.19(B)(5), which is also contrary to law.3

Standard of Review

{¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

3 While Hacker references R.C. 2929.18(B)(5) throughout his brief, it is apparent the ultimate question he is seeking to answer directs us to R.C. 2929.19(B)(5).

-4- Case No. 8-20-01

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. 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.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

Reagan Tokes Law

{¶9} The Reagan Tokes Law, enacted in 2018 and effective on March 22,

2019, “‘significantly altered the sentencing structure for many of Ohio’s most

serious felonies’ by implementing an indefinite sentencing system for those non-life

felonies of the first and second degree, committed on or after the effective date.”

State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1,

quoting The Ohio Criminal Sentencing Commission, SB 201-The Reagan Tokes

Law Indefinite Sentencing Quick Reference Guide, July 2019 and citing R.C.

2929.144(A). Under the Reagan Tokes “[L]aw, qualifying first- and second-degree

felonies committed on or after March 22, 2019 are now subject to the imposition of

indefinite sentences.” State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-

4150, ¶ 28. These indefinite prison terms will consist of a stated minimum prison

term selected by the trial court from a range of prison terms set forth in R.C.

2929.14(A) and a maximum prison term for qualifying first- and second-degree

-5- Case No. 8-20-01

felonies as determined by the trial court from formulas set forth in R.C. 2929.144.

Id.

{¶10} Moreover, the Reagan Tokes Law establishes a presumptive-release

date at the end of the offender’s minimum prison term imposed. R.C. 2967.271(B).

Nevertheless, the Ohio Department of Rehabilitation and Correction (“ODRC”)

may rebut that presumption and keep the offender in prison for an additional period

not to exceed the maximum prison term imposed by the trial court. R.C.

2967.271(C). In order to rebut the presumption, ODRC must conduct a hearing and

determine whether one or more of the following factors are applicable:

(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply:

(a) During the offender’s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.

(b) The offender’s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing.

-6- Case No. 8-20-01

(3) At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level.

R.C. 2967.271(C)(1), (2), and (3).

Constitutionality Analysis

{¶11} Hacker argues that the presumptive-release provisions of R.C.

2967.271 violates his right to a trial by jury and due process of law, and further

violates the constitutional requirement of separation of powers. Put more plainly—

Hacker argues R.C. 2967.271 is unconstitutional on its face.

{¶12} We review the determination of a statute’s constitutionality de novo.

State v. Hudson, 3d Dist. Marion, 2013-Ohio-647, ¶ 27, citing Akron v. Callaway,

9th Dist. Summit No. 22018, 2005-Ohio-4095, ¶ 23 and Andreyko v. Cincinnati, 1st

Dist. Hamilton No. C-020606, 2003-Ohio-2759, ¶ 11. “De novo review is

independent, without deference to the lower court’s decision.” Id., citing Ohio Bell

Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).

{¶13} “‘It is difficult to prove that a statute is unconstitutional.’” State v.

Stoffer, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v.

Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25. “‘All statutes have

a strong presumption of constitutionality. * * * Before a court may declare

unconstitutional an enactment of the legislative branch, “it must appear beyond a

reasonable doubt that the legislation and constitutional provisions are clearly

-7- Case No. 8-20-01

incompatible.”’” Id., quoting Arbino at ¶ 25, quoting State ex rel. Dickman v.

Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. “[I]f at all

possible, statutes must be construed in conformity with the Ohio and United States

Constitutions.” State v. Collier, 62 Ohio St.3d 267, 269 (1991), citing State v.

Tanner, 15 Ohio St.3d 1 (1984) and R.C. 1.47.

{¶14} “A statute may be challenged as unconstitutional on the basis that it is

invalid on its face or as applied to a particular set of facts.” State v. Lowe, 112 Ohio

St.3d 507, 2007-Ohio-606, ¶ 17. The distinction between the two types of

constitutional challenges is important because the standard of proof is different for

the two types of challenges. Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-

Ohio-2187, ¶ 20. “To prevail on a facial constitutional challenge, the challenger

must prove the constitutional defect, using the highest standard of proof, which is

also used in criminal cases, proof beyond a reasonable doubt.” State ex rel. Ohio

Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-

Ohio-5512, ¶ 21, citing State ex rel. Dickman at paragraph one of the syllabus.

Conversely, “[t]o prevail on a constitutional challenge to the statute as applied, the

challenger must present clear and convincing evidence of the statute’s constitutional

defect.” Id., citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329 (1944),

paragraph six of the syllabus.

-8- Case No. 8-20-01

{¶15} “A facial challenge alleges that a statute, ordinance, or administrative

rule, on its face and under all circumstances, has no rational relationship to a

legitimate governmental purpose.” Wymsylo at ¶ 21, citing Jaylin Invest., Inc. v.

Moreland, 107 Ohio St.3d 339, 2006-Ohio-4, ¶ 11. “Facial challenges to the

constitutionality of a statute are the most difficult to mount successfully, since the

challenger must establish that no set of circumstances exists under which the act

would be valid.” Id., citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.

2095 (1987). “If a statute is unconstitutional on its face, the statute may not be

enforced under any circumstances.” Id. “When determining whether a law is

facially invalid, a court must be careful not to exceed the statute’s actual language

and speculate about hypothetical or imaginary cases.” Id., citing Washington State

Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184

(2008).

{¶16} “In an as-applied challenge, the challenger ‘contends that application

of the statute in the particular context in which he has acted, or in which he proposes

to act, [is] unconstitutional.’” Lowe at ¶ 17, quoting Ada v. Guam Soc. of

Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633 (1992) (Scalia, J.,

dissenting). The practical impact of holding that a statute is unconstitutional as

applied to the challenger is to prevent its future application in a similar context,

“‘but not to render it utterly inoperative.’” Yajnik v. Akron Dept. of Health, Hous.

-9- Case No. 8-20-01

Div., 101 Ohio St.3d 106, 2004-Ohio-357, ¶ 14, quoting Ada, 506 U.S. at 1011, 113

S.Ct. at 633 (Scalia, J. dissenting). “[W]here statutes are challenged on the ground

that they are unconstitutional as applied to a particular set of facts, the party making

the challenge bears the burden of presenting clear and convincing evidence of a

presently existing set of facts that make the statutes unconstitutional and void when

applied to those facts.” Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶

38 (2005), citing Beldon, 143 Ohio St. 329, at paragraph six of the syllabus.

{¶17} We begin by addressing Hacker’s argument that the presumptive-

release provisions of R.C. 2967.271 violates his right to a trial by jury in that it

permits ODRC (and not the jury) to engage in fact-finding increasing the offender’s

minimum prison term, a right protected by the Sixth Amendment of the United

States Constitution applicable to the states through the due process clause of the

Fourteenth Amendment of the United States Constitution and also guaranteed by

Article I, Section 5 of the Constitution of the State of Ohio. “The question of

constitutionality of a statute must generally be raised at the first opportunity and, in

a criminal prosecution this means in the trial court.” State v. Awan, 22 Ohio St.3d

120, 122 (1986), limited by, In re M.D., 38 Ohio St.3d 149 (1988), syllabus, citing

State v. Woodards, 6 Ohio St.2d 14 (1966). If a party fails to object to a

constitutional issue at trial, an appellate court need not consider the objection for

the first time on appeal. Id., paragraph one of the syllabus. Importantly, a review

-10- Case No. 8-20-01

of the record reveals Hacker did not raise this argument before the trial court and

now raises this argument for the first time on appeal. We conclude that Hacker

has waived this argument, and therefore we decline to address it.4 See State v. Pritt,

3d Dist. Seneca No. 13-14-39, 2015-Ohio-2209, ¶ 15, citing State v. Bagley, 3d Dist.

Allen No. 1-13-31, 2014-Ohio-1787, ¶ 71, citing State v. Rowland, 3d Dist. Hancock

No. 5-01-28, 2002-Ohio-1417, 2002 WL 479163, *1 (Mar. 29, 2002). See also

Barnes, 2020-Ohio-4150, at ¶ 37.

{¶18} Next we turn to Hacker’s assertions that the Reagan Tokes Law

violates due process and the doctrine of separation of powers. First, Hacker argues

that the Reagan Tokes Law does not provide him adequate notice of the conduct

that triggers ODRC to maintain the offender’s incarceration after the expiration of

the offender’s minimum prison term and it does not provide a structure as to the

hearing to rebut the presumption established under division (B). Secondly, and as

it relates to the separation-of-powers doctrine, Hacker argues that Reagan Tokes

Law is unconstitutional because it permits ODRC (rather than the trial court) to

make factual determinations as to whether the offender is eligible for a reduction of

the offender’s minimum prison term (his presumptive-release date) or to maintain

4 “Waiver is the intentional relinquishment or abandonment of a right, and waiver of a right ‘cannot form the basis of any claimed error under Crim.R. 52(B).’” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23 quoting State v. McKee, 91 Ohio St.3d 292, 299, fn. 3, (Cook, J. dissenting) and citing United States v Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777 (1993). Forfeiture, on the other hand, “is a failure to preserve an objection * * *.” Id., citing Olano at 733. Forfeiture does not extinguish an appellant’s claim “of plain error under Crim.R. 52(B).” Id., citing McKee at 299, fn. 3.

-11- Case No. 8-20-01

the offender’s incarceration after the expiration of the offender’s minimum prison

term for a period not exceeding the offender’s maximum prison term. His

arguments are based on the holdings in State ex rel. Bray v. Russell, 89 Ohio St.3d

132 (2000) and State v. Oneal, Hamilton C.P. No. 1903 562 (Nov. 20, 2019).

{¶19} In Bray, the Supreme Court of Ohio addressed the constitutionality of

R.C. 2967.11 (which has since been repealed). Bray, 89 Ohio St.3d at 132; R.C.

2967.11, repealed in A.m.Sub.H.B. No. 130, 2008 Ohio Laws 173. R.C. 2967.11,

stated in pertinent part, that:

[a]s part of a prisoner’s sentence, the parole board may punish a violation committed by the prisoner by extending the prisoner’s stated prison term for a period of fifteen, thirty, sixty, or ninety days in accordance with this section. If a prisoner’s stated term is extended under this section, the time by which it is so extended shall be referred to as ‘bad time.’

R.C. 2967.11(B), repealed in A.m.Sub.H.B. No. 130, 2008 Ohio Laws 173. A

“violation” was defined as “an act that is a criminal offense under the law of this

state or the United States, whether or not a person is prosecuted for the commission

of the offense.” R.C. 2967.11(A), repealed in A.m.Sub.H.B. No. 130, 2008 Ohio

Laws 173. Other sections in R.C. 2967.11 articulated the procedures that were

followed to determine whether a “violation” (a crime) had been committed. Bray

at 135.

{¶20} The Court in Bray held, “[i]n short, R.C. 2967.11(C), (D), and (E)

enable[d] the executive branch to prosecute an inmate for a crime, to determine

-12- Case No. 8-20-01

whether a crime has been committed, and to impose a sentence for that crime.” Id.

The Court in Bray further held that the statute improperly permitted the executive

branch to act “as judge, prosecutor, and jury * * * [and thereby] intrude[] well

beyond the defined role of the executive branch as set forth in our Constitution.” Id.

Consequently, the Court in Bray concluded the statute unconstitutional because it

violated the doctrine of separation of powers. Id. at 136.

{¶21} The trial court in Oneal (relying on Bray) concluded the Reagan Tokes

Law is unconstitutional because it surrenders judicial powers to the executive

branch. The trial court noted, “[t]he conditions that the [O]DRC may consider in

determining whether an offender should not be released upon the end of [his]

minimum prison term may include a ‘violation of law’” which, like the bad time

statute “is synonymous with a criminal offense.” Oneal, Hamilton C.P. No. 1903

562, at *5. Moreover, Oneal determined that Reagan Tokes Law violates

procedural-due process because it does not provide for a judicial hearing prior to the

extension of a prison term beyond the minimum term. Id. at *6.

{¶22} Here, Hacker’s reliance on Bray and Oneal is flawed because there is

a significant distinction between the imposition of “bad time” (as was permitted

under R.C. 2967.11) and the structure for extension of a prison term beyond the

minimum term under the Reagan Tokes Law. Unlike Bray, the Reagan Tokes Law

does not permit ODRC (the executive branch) to maintain Hacker beyond the

-13- Case No. 8-20-01

maximum prison term imposed by the trial court. Therefore, we cannot conclude

that Bray and Oneal lead us to the conclusion that the Reagan Tokes Law violates

the doctrine of separation of powers. Barnes, 2020-Ohio-4150, ¶ 36, (concluding

“that Bray and Oneal do not compel the conclusion that the Reagan Tokes Law

violates the separation of powers doctrine.”)

{¶23} Accordingly, we cannot conclude that Hacker has met his burden in

demonstrating that the Reagan Tokes Law is unconstitutional on its face with proof

beyond a reasonable doubt and thus, we cannot conclude that Hacker’s sentence is

clearly and convincingly contrary to law.

{¶24} Hacker’s first and second assignment of error are overruled.

Financial-Sanction (Fine) Analysis

{¶25} Now, we turn to Hacker’s argument that the trial court failed to

consider his ability to pay the financial sanction imposed. We review the imposition

of a financial sanction under the same standard of review as we would apply toward

any other felony sentence. See State v. McCants, 1st Dist. Hamilton No. C-190143,

2020-Ohio-3441, ¶ 10, citing State v. Owen, 1st Dist. Hamilton No. C-170413,

2018-Ohio-1853, ¶ 5. An appellate court “may modify or vacate a felony sentence

only if we clearly and convincingly find that the record does not support the trial

court’s findings under relevant statutes or that the sentence is otherwise contrary to

-14- Case No. 8-20-01

law.” Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, at ¶ 1, citing R.C.

2953.08(G)(2).

{¶26} As an initial matter, Hacker never objected to the imposition of a

financial sanction (i.e., a fine) by the trial court at his sentencing hearing, which he

now raises for the first time on appeal. (Jan. 27, 2020 Tr. at 27-29); (Doc. No.

85). An appellant’s failure to raise an issue with the trial court constitutes a

forfeiture of that issue absent plain error. State v. Kiser, 3d Dist. Seneca No. 13-16-

25, 2017-Ohio-4222, ¶ 21 (applying the plain-error standard to a case involving a

fine where no discussion or objection to the imposition of the financial sanction was

lodged).

{¶27} Crim.R. 52(B) governs plain error in criminal cases. The Supreme

Court of Ohio has held that “‘the plain error rule is to be invoked only in exceptional

circumstances to avoid a miscarriage of justice.’” State v. Long, 53 Ohio St.2d 91,

95 (1978), quoting United States. v. Rudinsky, 439 F.2d 1074, 1076 (6th Cir.1971),

citing Eaton v. United States, 398 F.2d 485, 486 (5th Cir.1968). Because Hacker

did not object to the imposition of this financial sanction, we apply the plain-error

rule to the facts before us.

{¶28} Our review is not without limitation. The Supreme Court of Ohio has

previously concluded that there are limitations on an appellate court’s decision to

review and correct an error under Crim.R. 52(B). State v. Barnes, 94 Ohio St.3d

-15- Case No. 8-20-01

21, 27 (2002). “First, there must be an error, i.e., a deviation from a legal rule.”

Id. citing State v. Hill, 92 Ohio St.3d 191, 200 (2001), citing United States v. Olano,

507 U.S. 725, 732, 113 S.Ct. 1770, 1776 (1993). “Second, the error must be plain.

To be “plain” within the meaning of Crim.R. 52(B), an error must be an “obvious”

defect in the trial proceedings.” Id., citing State v. Sanders, 92 Ohio St.3d 245, 257,

(2001), citing State v. Keith, 79 Ohio St.3d 514, 518 (1997) and Olano, 507 U.S. at

734, 113 S.Ct. at 1777. “Third, the error must have affected ‘substantial rights.’

We have interpreted this aspect of the rule to mean that the trial court’s error must

have affected the outcome of the trial.” Id., citing Hill, 92 Ohio St.3d at 205, State

v. Moreland, 50 Ohio St.3d 58, 62 (1990), and Long, 53 Ohio St.2d at 91, paragraph

two of the syllabus. Thus, Hacker is “required to demonstrate a reasonable

probability that the error resulted in prejudice—the same deferential standard for

reviewing ineffective assistance of counsel claims.” State v. Rogers, 143 Ohio St.3d

385, 2015-Ohio-2459, ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,

81-83, 124 S.Ct. 2333 (2004). That is—an appellate court addressing the failure to

object to the imposition of a financial sanction “must review the facts and

circumstances of each case objectively and determine whether the defendant

demonstrated a reasonable probability that had [Hacker’s trial] counsel moved to

waive [or objected to the imposition of the financial sanction], the trial court would

have granted that motion.” See State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309,

-16- Case No. 8-20-01

¶ 14 (applying the prejudiced prong on ineffective-assistance-of-counsel analysis to

the waiver of court costs); see also State v. Thompson, 3d Dist. Allen No. 1-19-30,

2020-Ohio-723, ¶ 19, citing Davis at ¶ 14.

{¶29} R.C. 2929.19(B)(5) requires the trial court “[b]efore imposing a

financial sanction under section 2929.18 * * * [to] consider the offender’s present

and future ability to pay the amount of the sanction * * *.” “[T]here are no express

factors that must be taken into consideration or findings regarding the offender’s

ability to pay that must be made on the record.” State v. Williams, 9th Dist. Summit

No. 26014, 2012-Ohio-5873, ¶ 17, quoting State v. Martin, 140 Ohio App.3d 326,

327 (4th Dist.2000). However, the record must reflect that the trial court actually

considered a defendant’s ability to pay. Williams at ¶ 17, citing Martin at 327; State

v. Lewis, 2d Dist. Greene No. S-11-028, 2012-Ohio-4858, ¶ 9; State v. McQuillen,

5th. Dist. Ashland No. 12CA014, 2012-Ohio-4953, ¶ 11; and State v. Dahms, 6th

Dist. Sandusky No. S-11-025, 2012-Ohio-3181, ¶ 16. We “look to the totality of

the circumstances to see if this requirement has been satisfied.” State v. Barker, 8th

Dist. Cuyahoga No. 93574, 2010-Ohio-4480, ¶ 12, citing State v. Lewis, 8th Dist.

Cuyahoga No. 90413, 2008-Ohio-4101, ¶ 12, citing State v. Henderson, 4th Dist.

Vinton No. 07CA659, 2008-Ohio-2063, ¶ 7; State v. Smith, 4th Dist. Ross No.

06CA2893, 2007-Ohio-1884, ¶ 41-42; and State v. Ray, 4th Dist. Scioto No.

04CA2965, 2006-Ohio-853, ¶ 26.

-17- Case No. 8-20-01

{¶30} Here, the record reveals that trial court considered Hacker’s ability to

pay, when the trial court stated that it had “also considered defendant’s written

sentencing memorandum that was filed January 4, 2020.” (Jan. 27, 2020 Tr. at 21);

(Doc. No. 85). Importantly, contained within that sentencing memorandum is

information regarding Hacker’s long-term-employment history where he was

considered a “valued employee” with income in the amount of $4,400 per month.5

(See Doc. No. 56). Thereafter, the trial court stated “[i]n addition to this prison

sentence, the defendant is also assessed a $10,000 fine.” (Jan. 27, 2020 Tr. at 27);

(Doc. No. 85). Thus, because the record before us is not silent as to whether the

trial court considered Hacker’s ability to pay the fine before imposing the financial

sanction, the trial court could not commit plain error. See Williams at ¶ 19, quoting

State v. Andrews, 1st Dist. Hamilton No. C110735, 2012-Ohio-4664, ¶ 32. While

it certainly facilitates appellate review when a trial court affirmatively states on the

record that it considered a criminal defendant’s ability to pay, we cannot say that

the record in this case does not meet the threshold of R.C. 2929.19(B)(5), as a matter

of law. See Barker at ¶ 14, (concluding that a cursory reference in the record to the

trial court’s consideration of all factors required by law, the ordering of a PSI, and

the plain-error analysis were sufficient to meet the threshold of R.C.

5 It is not clear from our review of the record whether this was Hacker’s gross or net income. (See Doc. No. 56).

-18- Case No. 8-20-01

2929.19(B)(6)).6 Consequently, and after reviewing the totality of the

circumstances, we cannot conclude that the trial court deviated from some legal rule,

with an obvious defect in the proceeding, that affected Hacker’s substantial rights.

Accordingly, we find no plain error exists which has caused a manifest miscarriage

of justice. See Long, 53 Ohio St.2d at 95.

{¶31} For these reasons, Hacker’s third assignment of error is overruled.

{¶32} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

6 R.C. 2929.19 was amended by Am.Sub.H.B. 86, 2011 Ohio Laws File 29, effective September 30, 2011, renumbering the division addressing the trial court’s consideration of the offender’s ability to pay financial sanctions under R.C. 2929.18 or a fine under R.C. 2929.32 from division (B)(6) to division (B)(5).

-19-