State v. Whitaker

2024 Ohio 696

• Court: Ohio Court of Appeals
• Decided: February 26, 2024
• Docket: 6-23-11 & 6-23-12
• Status: Published

Opinion

[Cite as State v. Whitaker, 2024-Ohio-696.]

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

STATE OF OHIO, CASE NO. 6-23-11 PLAINTIFF-APPELLEE,

v.

AMBER NICOLE WHITAKER, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO, CASE NO. 6-23-12 PLAINTIFF-APPELLEE,

Appeals from Hardin County Common Pleas Court Trial Court Nos. CRI 20222106 and CRI 20222176

Judgments Affirmed

Date of Decision: February 26, 2024

APPEARANCES:

Michael B. Kelley for Appellant

McKenzie J. Klinger for Appellee Case Nos. 6-23-11 and 6-23-12

MILLER, J.

{¶1} Defendant-appellant, Amber N. Whitaker (“Whitaker”), appeals the

July 12, 2023 judgment entries of sentence of the Hardin County Court of Common

Pleas. For the reasons that follow, we affirm.

{¶2} On September 14, 2022, Whitaker was indicted in Hardin County case

number CRI 20222106 on 23 drug-related offenses, including: Count Seventeen of

trafficking in a fentanyl-related compound in violation of R.C. 2925.03(A)(2),

(C)(9)(f), a first-degree felony; Count Nineteen of aggravated trafficking in drugs

in violation of R.C. 2925.03(A)(2), (C)(1)(d), a second-degree felony; and Count

Twenty-Three of money laundering in violation of R.C. 1315.55(A)(1) and

1315.99(C), a third-degree felony. Counts Seventeen and Nineteen also each

contained a firearm specification and firearm and currency forfeiture specifications.

Whitaker appeared for arraignment on September 28, 2022 and entered not guilty

pleas to the counts and specifications in the indictment. On November 16, 2022,

Whitaker was indicted in Hardin County case number CRI 20222176 on one count

of escape in violation of R.C. 2921.34(A)(1), (C)(2)(a), a second-degree felony.

Whitaker entered a not guilty plea on December 1, 2022.

{¶3} A change-of-plea hearing was held in both cases on June 20, 2023. At

that hearing, pursuant to a negotiated-plea agreement, Whitaker entered guilty pleas

to Counts Seventeen, Nineteen, and Twenty-Three in case number CRI 20222106.

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Whitaker also agreed to forfeit the currency and firearms referenced in the

accompanying specifications. In exchange, the State agreed to recommend

dismissal of the remaining counts and specifications in the indictment.

Additionally, Whitaker entered a guilty plea to the escape charge in case number

CRI 20222176. The trial court accepted Whitaker’s guilty pleas, found her guilty,

and dismissed the remaining counts and specifications.

{¶4} The parties appeared for sentencing on July 11, 2023. In case number

CRI 20222106, the trial court sentenced Whitaker to a mandatory minimum term of

three years up to maximum of four and one-half years in prison on Count Seventeen,

a mandatory term of two years in prison on Count Nineteen, and twelve months in

prison on Count Twenty-Three. The trial court also ordered forfeiture of the

firearms and currency referenced in the accompanying specifications. Whitaker was

also ordered to pay court costs, reimbursement in the agreed amount of $2,465.00,

and a mandatory fine of $10,000.00 in Count Seventeen. Court-appointed counsel

fees in the amount of $435.00 were also assessed to Whitaker as a civil assessment.

With respect to case number CRI 20222176, the trial court sentenced Whitaker to

serve two years in prison. The trial court further ordered Whitaker to serve the

prison terms in case number CRI 20222106 consecutively to each other and

consecutive to the prison terms in case number CRI 20222176. The trial court filed

its judgment entries of sentence the following day.

-3- Case Nos. 6-23-11 and 6-23-12

{¶5} Whitaker filed notices of appeal on August 3, 2023. She raises two

assignments of error for our review.

First Assignment of Error

The trial court’s sentence is contrary to law as the court failed to specifically and orally state at the sentencing hearing that the escape count runs consecutive to the counts in [case number] 2022-2106, which is plain error.

{¶6} In her first assignment of error, Whitaker argues that her sentence is

contrary to law because the trial court failed to properly advise her that her sentence

in CR 20222176 was to be served consecutively to her sentence in CR 20222106.

For the reasons that follow, we disagree.

Standard of Review

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

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

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.

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Relevant Authority

{¶8} In her assignment of error, Whitaker argues that the trial court erred by

imposing consecutive sentences without specifically advising her the sentences in

the two cases would be served consecutively. “Except as provided in * * * division

(C) of section 2929.14, * * * a prison term, jail term, or sentence of imprisonment

shall be served concurrently with any other prison term, jail term, or sentence of

imprisonment imposed by a court of this state, another state, or the United States.”

R.C. 2929.41(A). R.C. 2929.14(C) provides:

(4) * * * [T]he court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(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.

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{¶9} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11. Specifically, the trial court must find: (1)

consecutive sentences are necessary to either protect the public or punish the

offender; (2) the sentences would not be disproportionate to the offense committed;

and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.

{¶10} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St. 209, 2014-Ohio-3177, ¶ 29. A trial

court “has no obligation to state reasons to support its findings” and is not “required

to give a talismanic incantation of the words of the statute, provided that the

necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

Analysis

{¶11} Whitaker does not argue that the trial court failed to make the requisite

consecutive-sentencing findings under R.C. 2929.14(C)(4) or that the record does

not support the trial court’s consecutive-sentencing findings. Rather, she contends

that the trial court did not properly advise her that the sentences in case numbers

CRI 20222106 and CRI 20222176 were to be served consecutively.

-6- Case Nos. 6-23-11 and 6-23-12

{¶12} After reviewing the record, we find Whitaker’s argument to be

unfounded. A plain reading of the transcript reveals that the issue of whether the

sentences should be served concurrently or consecutively was a focal point of each

party’s argument at the sentencing hearing. After each party presented their

respective positions, and contrary to Whitaker’s assertion otherwise, the trial court

clearly informed her of the consecutive nature of her sentences in case numbers CRI

20222106 and CRI 20222176.

{¶13} At the sentencing hearing, after announcing Whitaker’s sentence, the

trial court stated:

This does have a period of post-release control of up to three years but not less than 18 months, of which is mandatory. If you violate the terms of post-release control, it’s the same as what I just went over with you in the other case. That is to run consecutive with the sentence in the other case.

(July 11, 2023 Tr. at 43). Whitaker contends the trial court’s comments

regarding post-release control immediately prior to its discussion of the

consecutive nature of the sentences results in ambiguity regarding the

consecutive or concurrent nature of the sentence in case number CRI

20222176 with respect to the sentence imposed in case number CRI

20222106. Whitaker argues that the trial court’s reference to “run[ning]

consecutive” could be interpreted to be referencing the terms of post-release

control rather than the prison terms associated with the two cases.

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(Appellant’s Brief at 4). Accordingly, Whitaker alleges that the trial court

failed to properly inform her of the consecutive nature of the sentences.

{¶14} However, the trial court had previously informed Whitaker:

I am going to make a finding that your sentences in both cases shall run concurrent to the case in Marion County but I am going to also run your sentences in your two cases here as well as the counts in those sentences consecutive. I feel that it’s necessary to protect the public from future crime, and I do not feel it’s disproportionate to the danger you have posed to Hardin County residents by your drug dealing and your actions in this case.

(Id. at 39). Accordingly, the trial court clearly informed Whitaker that the

prison terms in the two pending Hardin County cases were to be served

consecutively. Furthermore, the judgment entries of sentence also state that

Whitaker’s sentences in case number CRI 20222106 and CRI 20222176 are

to be served consecutively. Thus, we find Whitaker’s argument that the trial

court failed to properly inform her of the consecutive nature of her sentences

to be without merit.

{¶15} Whitaker’s first assignment of error is overruled.

Second Assignment of Error

The trial court erred when it ordered the payment of court costs, fines, fees, court appointed attorney’s fees, and reimbursement as the order is contrary to law.

-8- Case Nos. 6-23-11 and 6-23-12

{¶16} In her second assignment of error, Whitaker argues the trial court erred

by ordering the payment of court costs, mandatory fines, fees, court-appointed

attorney fees, and reimbursement fees without considering her ability to pay.

{¶17} R.C. 2929.19(B)(5) requires a trial court to “consider the offender’s

present and future ability” to pay before imposing a financial sanction or fine under

R.C. 2929.18 or 2929.32, respectively. “‘The trial court is not required to hold a

hearing on ability to pay, nor are there any specific factors to consider or findings

to make.’” State v. Wilkins, 3d Dist. Shelby No. 17-13-13, 2014-Ohio-983, ¶ 17,

quoting State v. Parker, 183 Ohio App.3d 431, 2009-Ohio-3667, ¶ 13 (3d Dist.).

“‘Furthermore, “a trial court need not explicitly state in its judgment entry that it

considered a defendant’s ability to pay a financial sanction. Rather, [appellate]

courts look to the totality of the record to see if the requirement has been satisfied.”’”

Id., quoting State v. Crish, 3d Dist. Allen No. 1-08-13, 2008-Ohio-5196, ¶ 50,

quoting State v. Smith, 4th Dist. Ross No. 06CA2893, 2007-Ohio-1884, ¶ 42.

{¶18} “‘“[W]hen a trial court has imposed a financial sanction without even

a cursory inquiry into the offender’s present and future means to pay the amount

imposed, the failure to make the requisite inquiry is an abuse of discretion.”’”

Parker at ¶ 13, quoting State v. Haney, 180 Ohio App.3d 554, 2009-Ohio-149, ¶ 22,

quoting State v. Henderson, 4th Dist. Vinton No. 07CA659, 2008-Ohio-2063, ¶ 5.

However, because Whitaker did not object to the imposition of the financial

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sanctions, she has forfeited all but plain error on appeal. Wilkins at ¶ 8. “‘To

recognize plain error, we must find obvious error affecting such substantial rights

that the error was outcome-determinative.’” State v. West, 3d Dist. Seneca No. 13-

22-07, 2022-Ohio-4069, ¶ 23, quoting State v. Henslee, 5th Dist. Muskingum No.

CT2017-0009, 2017-Ohio-5786, ¶ 13. “‘In the context of sentencing, outcome-

determinative means an error that resulted in a sentence which is contrary to law.’”

Id. at ¶ 24, quoting Henslee at ¶ 13.

{¶19} Moreover, our review of the record indicates that at least some of

Whitaker’s sentence was pursuant to the parties’ joint recommendation.

Specifically, relevant to her argument on appeal, Whitaker agreed to pay court costs,

the cost of prosecution, her prior court-appointed counsel fees1, and laboratory fees.

At the sentencing hearing, the parties memorialized this agreement on the record.

The State summarized the parties’ agreement regarding financial sanctions and

responsibility as follows:

The parties did agree that [Whitaker] would address court costs, cost of prosecution, and prior court-appointed counsel fees, and any laboratory fees. Her laboratory fees are $1,040. And then reimbursement was also agreed to of $1,425 to the Hardin County Sheriff’s Office. The laboratory fees are actually payable to the sheriff’s office as well for a combined figure to the sheriff of [$]2,465, Your Honor.

1 The record shows Whitaker was originally represented by court-appointed counsel and later retained trial counsel.

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(July 11, 2023 Tr. at 4-5). Indeed, the trial court’s sentence was consistent with the

parties’ agreement.

{¶20} R.C. 2953.08(A) provides specific grounds for a defendant to appeal

a sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 10. However,

under R.C. 2953.08(D)(1), “A sentence imposed upon a defendant is not subject to

review under this section if the sentence is authorized by law, has been

recommended jointly by the defendant and the prosecution in the case, and is

imposed by a sentencing judge.” “In discussing jointly recommended sentences,

the Ohio Supreme Court has recognized that ‘[t]he General Assembly intended a

jointly agreed-upon sentence to be protected from review precisely because the

parties agreed that the sentence is appropriate.’” State v. Morris, 3d Dist. Hardin

No. 6-12-17, 2013-Ohio-1736, ¶ 11, quoting State v. Porterfield, 106 Ohio St.3d 5,

2005-Ohio-3095, ¶ 25.

{¶21} Here, the parties agreed to a mutual sentencing recommendation that

included court costs, court-appointed attorney fees, and laboratory fees.

Accordingly, with respect to those components, Whitaker cannot now complain of

her bargained for sentence. See State v. Pishok, 3d Dist. Seneca No. 13-03-43, 2003-

Ohio-7118, ¶ 23.

{¶22} Moreover, despite the parties’ joint agreement, the record indicates

that the trial court, nonetheless, considered Whitaker’s current and future financial

-11- Case Nos. 6-23-11 and 6-23-12

situation, including the impact incarceration could have on her financial situation,

when fashioning her sentence. Specifically, the trial court stated as follows:

I am going to order that you pay a mandatory $10,000.00 fine in [Hardin County] Case Number 2022 2106. That’s the mandatory fine on Count 17. There is a mandatory fine in Count 19. I’m going to make a specific finding that levying that mandatory fine in addition to the other one would create an undue hardship. You’re going to be in jail for an extended period of time. You’re going to come out and probably have a hard time getting a good job, so on Count 19, I am going to order zero fine.

(July 11, 2023 Tr. at 39-40). Furthermore, the trial court indicated at the sentencing

hearing that it considered the PSI prepared in the instant case. (Id. at 37). That PSI

includes information relating to Whitaker’s educational background, health, prior

work history, and some information regarding her financial situation. (See PSI).

Specifically, the PSI states that Whitaker is 41 years old, has some college

education, and is in good physical health although she has some mental health

diagnoses. (PSI). Whitaker and her husband owned their home, and although she

was not working at the time of the sentencing hearing, Whitaker had previous full-

time and part-time employment, and was in the process of launching an online craft

business. (PSI). See West, 2022-Ohio-4069, at ¶ 27-29; Parker, 2009-Ohio-3667,

at ¶ 14-16; State v. Clifford, 3d Dist. Paulding No. 11-04-06, 2005-Ohio-958, ¶ 14,

reversed on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 109

Ohio St.3d 313, 2006-Ohio-2109; Crish, 2008-Ohio-5196, at ¶ 50 (“When the trial

court considers information in the [PSI] relating to the defendant’s age, health,

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education, and employment history, that is sufficient to comply with R.C.

2929.19(B)[5].”). Additionally, although the trial court appointed trial counsel for

Whitaker, she subsequently retained private counsel. (See Case No. CRI 20222106,

Doc. Nos. 27, 28). Additionally, the trial court considered that proceeds from

Whitaker’s drug-related activity funded her lifestyle. (July 11, 2023 Tr. at 7).

Accordingly, it is clear the trial court considered Whitaker’s present and future

ability to pay and we reject her argument to the contrary.

{¶23} We note that, in State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786,

the Supreme Court of Ohio addressed what is required of a trial court under R.C.

2941.51(D) when ordering a defendant reimburse the county for court-appointed

counsel fees. The Court explained that court-appointed counsel fees “may be

assessed at the sentencing hearing, [however], they cannot be included as part of the

offender’s sentence.” Id. at ¶ 37. The court clarified that “[i]f the assessment of the

fees is included in the sentencing entry, the court must note that the assessment of

the court-appointed-counsel fees is a civil assessment and is not part of the

defendant’s sentence.” Id. Here, the language of the judgment entry indicates that

the court-appointed counsel fees were assessed as part of a civil assessment, rather

than part of Whitaker’s sentence. (Case No. CRI 20222106, Doc. No. 67). Thus,

the trial court did not err by ordering Whitaker to pay the court-appointed counsel

fees.

-13- Case Nos. 6-23-11 and 6-23-12

{¶24} Whitaker’s second assignment of error is overruled.

Conclusion

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

particulars assigned and argued, we affirm the judgments of the Hardin County

Court of Common Pleas.

Judgments Affirmed.

WALDICK and ZIMMERMAN, J.J., concur.

/hls

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