State v. Rice

2022 Ohio 1068

• Court: Ohio Court of Appeals
• Decided: March 31, 2022
• Docket: 110674
• Status: Published

Opinion

[Cite as State v. Rice, 2022-Ohio-1068.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110674 v. :

ALAN RICE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 31, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-655279-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Alaina Hagans, Assistant Prosecuting Attorney, for appellee.

Anna Markovich, for appellant.

SEAN C. GALLAGHER, A.J.:

Appellant Alan Rice (“Rice”) appeals his sentence to the maximum

prison term for his robbery conviction and the trial court’s imposition of financial

sanctions. Upon review, we affirm the judgment of the trial court. In December 2019, Rice was charged under a seven-count

indictment. Ultimately, he entered a plea of guilty to the following counts:

Count 2 (As amended): Robbery in violation of R.C. 2911.02(A)(1), a felony of the second degree, with one- and three-year firearm specifications and a forfeiture of a weapon specification.

Count 3 (As amended): Having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree, with a forfeiture of a weapon specification.

Count 5 (As charged): Tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree, with a forfeiture of a weapon specification.

Count 7 (As charged): Drug possession in violation of R.C. 2925.11(A), a felony of the fifth degree, with a forfeiture of a weapon specification.

The remaining counts were nolled. The trial court accepted Rice’s guilty plea and

ordered a presentence-investigation report (“PSI report”).

At sentencing, the trial court imposed a total aggregate prison term of

11 years, ordered Rice to pay a fine of $250 on each count for a total financial

sanction of $1,000, imposed costs, and ordered Rice to forfeit his weapon. In the

sentencing entry, the trial court stated that it “considered all required factors of the

law” and found that “prison is consistent with the purpose of R.C. 2929.11.” Rice

timely filed this appeal.

Under his first assignment of error, Rice challenges the trial court’s

imposition of the maximum prison term of eight years on the base charge for the

robbery conviction. Rice argues that the trial court misapplied R.C. 2929.11 and

2929.12. More specifically, he claims that the trial court failed to consider the

purposes of felony sentencing listed under R.C. 2929.11 and failed to balance the recidivism and seriousness factors set forth under R.C. 2929.12. Rice maintains that

although the PSI report indicates a high likelihood of recidivism, the trial court

should have considered Rice’s mental-health issues and substance-abuse addiction

as mitigating factors. Rice asserts that the record demonstrates that the maximum

sentence imposed is not warranted and is contrary to law.

An appellate court’s review of a felony sentence is governed by R.C.

2953.08(G)(2). See State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169

N.E.3d 649, ¶ 27, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 21. Under R.C. 2953.08(G)(2), an appellate court “may increase,

reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand

the matter * * * for resentencing” if it “clearly and convincingly finds either of the

following”:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

The statutory findings referenced in R.C. 2953.08(G)(2)(a) are not at

issue here. As the Ohio Supreme Court clarified in Jones, R.C. 2953.08(G)(2)(a)

“clearly does not provide a basis for an appellate court to modify or vacate a sentence

if it concludes that the record does not support the sentence under R.C. 2929.11 and

R.C. 2929.12[.]” Id. at ¶ 31.

“R.C. 2953.08(G)(2)(b) permits an appellate court to modify or

vacate a sentence if it clearly and convincingly finds that the sentence is ‘otherwise contrary to law.’” Jones at ¶ 32. “A sentence is contrary to law if it falls outside the

statutory range for the offense or if the sentencing court fails to consider the

purposes and principles of sentencing set forth in R.C. 2929.11 and the sentencing

factors in R.C. 2929.12.” State v. Angel, 8th Dist. Cuyahoga No. 110456, 2022-Ohio-

72, ¶ 8, citing State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926,

¶ 58.

R.C. 2929.11 addresses the overriding purposes of felony sentencing,

while R.C. 2929.12 addresses factors that are to be taken in account when imposing

a sentence. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, at ¶ 18-

19. Pursuant to R.C. 2929.11(A), the three overriding purposes of felony sentencing

are “to protect the public from future crime by the offender and others,” “to punish

the offender,” and “to promote the effective rehabilitation of the offender using the

minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.”

Additionally, pursuant to R.C. 2929.11(B), the sentence imposed “shall be

reasonably calculated to achieve the three overriding purposes of felony sentencing

* * *, commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.”

R.C. 2929.12 gives the sentencing court “discretion to determine the

most effective way to comply with the purposes and principles of sentencing set forth

in [R.C. 2929.11]” when imposing a sentence upon a felony offender. R.C. 2929.12(A). R.C. 2929.12 sets forth a nonexhaustive list of factors relating to

the seriousness of the conduct and the likelihood of recidivism that the trial court

shall consider in exercising that discretion. Id.

“[N]either R.C. 2929.11 nor 2929.12 requires a trial court to make any

specific factual findings on the record.” Jones at ¶ 20, citing State v. Wilson, 129

Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; State v. Arnett, 88 Ohio St.3d

208, 215, 724 N.E.2d 793 (2000). Further, “[n]othing in R.C. 2953.08(G)(2)

permits an appellate court to independently weigh the evidence in the record and

substitute its judgment for that of the trial court concerning the sentence that best

reflects compliance with R.C. 2929.11 and 2929.12.” Jones at ¶ 42.

The record in the present case plainly shows that the prison term

imposed by the trial court was within the statutory range and that the court

considered the purposes of felony sentencing set forth in R.C. 2929.11 and the

sentencing factors set forth in R.C. 2929.12. The PSI report sets forth the underlying

facts pertaining to the robbery and related offenses. The PSI report also details

Rice’s criminal history, which dates back to 2003, includes personal and other

information, and notes Rice’s mental-health issues and substance-abuse history. At

sentencing, the trial court heard from Rice concerning the robbery and commented

on Rice’s extensive criminal history, which included, among other offenses, rape,

felonious assaults, assaults, probation violations, aggravated robberies, receiving

stolen property, having weapons while under disability, domestic violence, and

violating protection orders. The trial court also heard from defense counsel and the prosecutor. The court’s journal entry stated that the trial court had considered all

required factors set forth by the law. “A trial court’s statement in its sentencing

journal entry that it considered the required sentencing factors alone is sufficient to

fulfill its obligations under R.C. 2929.11 and 2929.12.” State v. Levison, 8th Dist.

Cuyahoga No. 110281, 2021-Ohio-3601, ¶ 17, citing State v. Phillips, 8th Dist.

Cuyahoga No. 110148, 2021-Ohio-2772, ¶ 8. As such, the maximum sentence

imposed on the robbery count is not contrary to law and the first assignment of error

is overruled.

Under his second assignment of error, Rice claims the trial court

erred by imposing financial sanctions on appellant without considering his ability to

pay.

R.C. 2929.19(B)(5) provides as follows: “Before imposing a financial

sanction under [R.C. 2929.18] or a fine under [R.C. 2929.32], the court shall

consider the offender’s present and future ability to pay the amount of the sanction

or fine.” “There are no express factors that must be taken into consideration nor

specific findings that must be made by the court on the record, but there must be

some evidence in the record that the trial court considered the defendant’s ability to

pay.” State v. Schneider, 8th Dist. Cuyahoga No. 96953, 2012-Ohio-1740, ¶ 10,

citing State v. Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d 79, ¶ 11

(8th Dist.). A trial court may satisfy this requirement when the record shows that

the court considered the PSI report that contains detailed information regarding the defendant’s age, education, physical and mental health, finances, and employment

history. See State v. Brown, 2020-Ohio-4474, 158 N.E.3d 972, ¶ 43 (8th Dist.).

Rice argues that the record shows he did not have the ability to pay

the fines imposed by the trial court. Rice states that he was declared indigent and

appointed counsel. He also states that the PSI report shows that at the time of

sentencing, he was 32 years old, he only finished 10th grade, he was unemployed, he

was behind on child support, his finances were poor, and he was living with this

mother. He further states that he was sentenced to 11 years of imprisonment, not

community control. He maintains the totality of circumstances demonstrates the

court failed to consider his present and future ability to pay the fines.

“The fact that a defendant is ‘indigent’ or is represented by appointed

counsel does not preclude a trial court from imposing financial sanctions.” State v.

Brown, 2020-Ohio-4474, 158 N.E.3d 972, ¶ 42 (8th Dist.), citing State v. Nitsche,

2016-Ohio-3170, 66 N.E.3d 135, ¶ 76 (8th Dist.); see also State v. Cruz, 8th Dist.

Cuyahoga No. 106098, 2018-Ohio-2052, ¶ 28. Likewise, a lengthy prison sentence

does not necessarily preclude a trial court from imposing financial sanctions.

Brown at ¶ 42, citing Nitsche at ¶ 76.

In this case, the trial court imposed a $250 fine for each count for a

total financial sanction of $1,000. Rice did not object the court’s imposition of the

fines upon him. Although the trial court did not specifically inquire into Rice’s

present or future ability to pay the financial sanction, the court ordered a PSI report.

The PSI report reflected that Rice was only 32 years old and was living with his mother with no rent. Rice was recently married, and he indicated that his wife and

mother support him financially. Although Rice was not employed and was behind

on his child-support payments, the record shows he had posted a $50,000 bond.

This information allowed the trial court to make an informed decision about Rice’s

present and future ability to pay the fine.

Rice also challenges the trial court’s imposition of costs. Because the

imposition of the costs of prosecution is mandatory under R.C. 2947.23(A)(1)(a), a

trial court is not required to consider a defendant’s ability to pay before imposing

costs against the defendant. Brown at ¶ 37, citing State v. Taylor, 161 Ohio St.3d

319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 6. Although the court must impose costs,

pursuant to R.C. 2947.23(C), “[t]he court retains jurisdiction to waive, suspend or

modify the payment of the costs of prosecution * * * at the time of sentencing or any

time thereafter.” (Emphasis added.) Because there is nothing in the record to

indicate that Rice objected to or at any time moved to waive, suspend, or modify the

payment of court costs, the trial court did not err in imposing costs.

Rice’s second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

MICHELLE J. SHEEHAN, J., and LISA B. FORBES, J., CONCUR