State v. Ivey

2021 Ohio 2138

• Court: Ohio Court of Appeals
• Decided: June 25, 2021
• Docket: L-19-1243
• Status: Published

Opinion

[Cite as State v. Ivey, 2021-Ohio-2138.]

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

State of Ohio Court of Appeals No. L-19-1243

Appellee Trial Court No. CR0201901267

v.

Melvin Ivey DECISION AND JUDGMENT

Appellant Decided: June 25, 2021

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Henry Schaefer, for appellant.

***** MAYLE, J.

{¶ 1} Appellant, Melvin Ivey, appeals the September 11, 2019 judgment of the

Lucas County Court of Common Pleas sentencing him to four years in prison. For the

following reasons, we affirm. I. Background and Facts

{¶ 2} On August 27, 2019, Ivey pleaded no contest to one count of felonious

assault in violation of R.C. 2903.11(A)(1). At the plea hearing, the trial court elicited

from Ivey that he was 23 years old, had completed a year of community college, and was

a certified phlebotomist. Following the state’s recitation of the facts underlying the

charge, the trial court found Ivey guilty and ordered a presentence investigation report

(“PSI”).

{¶ 3} On September 11, 2019, the trial court sentenced Ivey to four years in

prison. In addition to the prison term, the trial court ordered Ivey to pay “the costs of

prosecution.” The court did not expressly impose any other fees or costs. While the

court noted that Ivey had no criminal history and was gainfully employed, it did not

address his ability to pay financial sanctions in any other way. Although the trial court

did not directly address Ivey’s ability to pay, it stated that it had reviewed the PSI, which

includes information about Ivey’s financial, educational, and vocational background.

{¶ 4} The trial court included the imposition of costs and fees in its September 11,

2019 sentencing entry. Specifically, the entry states:

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. * * *

2. Defendant further ordered to pay the cost[s] assessed pursuant to R.C.

9.92(C), 2929.18 and 2951.021 if not sentenced to ODRC.

{¶ 5} Ivey now appeals his conviction, raising one assignment of error:

THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.

IVEY WHEN IT ORDERED HIM TO PAY UNSPECIFIED COSTS,

INCLUDING COURT APPOINTED FEES, WITHOUT FIRST

DETERMINING THE ABILITY TO PAY THOSE COSTS.

II. Law and Analysis

{¶ 6} In his assignment of error, although he concedes that the trial court was

required to impose the costs of prosecution, Ivey contends that the trial court erred by

imposing the remaining financial sanctions because there is no evidence in the record that

the court considered his ability to pay. The state responds that the evidence in the record

clearly and convincingly supports the trial court’s finding that Ivey “ha[s], or reasonably

may be expected to have, the means to pay all or part of the applicable costs of

supervision, confinement, [and] assigned counsel * * *.”

{¶ 7} Our standard of review on this issue is whether the imposition of costs was

contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b); State v. Farless, 6th Dist. Lucas Nos.

L-15-1060 and L-15-1061, 2016-Ohio-1571, ¶ 4; State v. Collins, 2015-Ohio-3710, 41

N.E.3d 899, ¶ 31 (12th Dist.) (“An appellate court may not modify a financial sanction

unless it finds by clear and convincing evidence that it is not supported by the record or is

contrary to law.” (Internal quotations omitted.)).

3. {¶ 8} The imposition of the costs of supervision, confinement, and assigned

counsel is discretionary. State v. Gray, 6th Dist. Lucas No. L-15-1072, 2015-Ohio-5021,

¶ 20. If the court elects to impose these costs, it must affirmatively find that the

defendant has, or reasonably may be expected to have, the ability to pay. Id. at ¶ 21;

State v. Wymer, 6th Dist. Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 14; R.C.

2929.18(A)(5)(a)(i), (ii); R.C. 2945.51(D). Although the “best practice” is for the trial

court to put the basis for its findings regarding a defendant’s ability to pay on the record,

the trial court is not required to explicitly make findings on the record. State v. Taylor,

Slip Opinion No. 2020-Ohio-6786, -- N.E.3d --, ¶ 2. Nor is the court required to consider

any specific factors in reaching its determination about a defendant’s ability to pay. State

v. VanCamp, 6th Dist. Wood No. WD-15-034, 2016-Ohio-2980, ¶ 10. While the court

need not conduct a formal hearing as to the defendant’s ability to pay discretionary costs,

a finding of his ability to pay must be supported by clear and convincing evidence in the

record. Wymer at ¶ 14. When the record on appeal contains no evidence reflecting the

trial court’s consideration of present or future ability to pay these costs—such as

consideration of defendant’s age, health, employment history, or level of education—the

imposition of these costs is improper and must be vacated. State v. Stovall, 6th Dist.

Lucas No. L-18-1048, 2019-Ohio-4287, ¶ 37. The trial court’s indication that it reviewed

a PSI that includes information on the defendant’s financial, educational, and vocational

background is sufficient to support the trial court’s imposition of discretionary costs. See

State v. Cantrill, 6th Dist. Lucas No. L-18-1047, 2020-Ohio-1235, ¶ 91.

4. {¶ 9} Here, the trial court explicitly stated that it “reviewed the presentence report

* * *” before imposing Ivey’s sentence. The PSI includes sufficient information about

Ivey’s age, educational history, employment and vocational history, and past wages to

support the trial court’s finding that Ivey had, or reasonably would have, the ability to

pay the costs of supervision, confinement, and assigned counsel. See Cantrill at ¶ 91;

State v. Leveck, 6th Dist. Fulton No. F-20-009, 2021-Ohio-1547, ¶ 17.

{¶ 10} Because the record clearly and convincingly supports the trial court’s

finding that Ivey has or will have the ability to pay, we find that the court’s imposition of

discretionary costs is not contrary to law. Ivey’s assignment of error is not well-taken.

II. Conclusion

{¶ 11} Based on the foregoing, the September 11, 2019 judgment of the Lucas

County Court of Common Pleas is affirmed. Ivey is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

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

5. 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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