        [Cite as State v. Kinley, 2020-Ohio-542.]




                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NO. C-190270
                                                        TRIAL NO. B-1900756A
     Plaintiff-Appellee,                            :
                                                           O P I N I O N.
  vs.                                               :

STEPHANIE KINLEY,                                   :

     Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                                Remanded

Date of Judgment Entry on Appeal: February 19, 2020



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher, William Gallagher and Elizabeth Conkin, for Defendant-
Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Presiding Judge.

       {¶1}    Defendant-appellant Stephanie Kinley appeals from the trial court’s

judgment convicting her of five counts of theft. In three assignments of error, she

argues the sentences imposed were contrary to law, her trial counsel rendered

ineffective assistance, and the trial court’s judgment entry does not reflect the correct

amount of jail-time credit.

       {¶2}   Because the trial court’s judgment entry incorrectly reflects that Kinley

was awarded two days of jail-time credit, when the trial court had actually awarded

Kinley 52 days of jail-time credit, we remand this case for the trial court to correct

nunc pro tunc the clerical error in its judgment entry. The judgment of the trial court

is otherwise affirmed.


                               Procedural Background


       {¶3}   Kinley was indicted for five counts of theft, three counts of

unauthorized use of property, five counts of tampering with records, and five counts

of forgery. She ultimately pled guilty to five counts of theft. Three of these theft

offenses were fourth-degree felonies and the remaining two offenses were third-

degree felonies. The trial court sentenced Kinley to 12 months in prison for each of

the three offenses that were fourth-degree felonies. And it sentenced her to 18

months in prison for the two offenses that were third-degree felonies. All sentences

were made concurrent, resulting in an aggregate sentence of 18 months in prison. At

the sentencing hearing, the trial court awarded Kinley 52 days of jail-time credit.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                     Sentencing


       {¶4}    In her first assignment of error, Kinley challenges the sentences

imposed, arguing that they were disproportionate to her conduct and its impact on

the victims.

       {¶5}    Pursuant to R.C. 2953.08(G)(2), we may modify or vacate a

defendant’s sentence only if we clearly and convincingly find that the record does not

support the mandatory sentencing findings or that the sentence is contrary to law.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-

23; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st Dist.). No mandatory

sentencing findings were required in this case. And all sentences imposed fell within

the applicable statutory ranges and were not contrary to law.

       {¶6}    Kinley contends that the trial court’s findings with respect to the

seriousness and recidivism factors under R.C. 2929.11 and 2929.12 were erroneous.

While a trial court is to be guided by the purposes of felony sentencing set forth in

R.C. 2929.11 and is required to consider the seriousness and recidivism factors

contained in R.C. 2929.12, these are not fact-finding statutes, and in the absence of

an affirmative demonstration by the defendant to the contrary, we may presume that

the trial court considered them. State v. Patterson, 1st Dist. Hamilton No. C-170329,

2018-Ohio-3348, ¶ 60. In this case, the trial court specifically stated at sentencing

that it had considered the relevant sentencing factors.

       {¶7}    Kinley further takes issue with certain statements that the trial court

made at sentencing, contending that the trial court erroneously treated her theft

offenses as being tantamount to the offense of burglary. We disagree. Kinley’s theft

convictions involved the act of forging documents (including deeds) and transferring

real properties from the victims into the name of Kinley or that of a corporation that

she had set up. At sentencing, the trial court noted that there were victims who were



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                      OHIO FIRST DISTRICT COURT OF APPEALS



harmed. Kinley gave a curt response indicating she did not believe anyone was

harmed and stating she would like to see a doctor’s bill showing harm. One of the

victims then spoke about the harm suffered. In announcing its sentence, the trial

court talked about the seriousness of the offense and the impact on the victims. The

court then discussed how violated a victim would feel to come home to her house and

find someone had forged a deed and had taken it. The court then stated:

       That’s just flat out mean. Anybody that deals with me knows I don’t

       like burglars because they change people’s lives forever. You break

       into somebody’s house, those people forever, forever, every time they

       go in that house turn the lights on. They’re wondering is somebody in

       my house. What you guys did is like a burglary, okay? The burglar is

       going to take money and take property and whatever he needs. You

       guys went into people’s property and took their property and didn’t

       leave.

The court then proceeded to discuss the impact that Kinley’s actions had on the

victims. These comments were not improper. The trial court did not equate Kinley’s

theft offense to the offense of burglary, but rather analogized the fear and harm that

Kinley’s victims experienced to that of a victim of burglary.

       {¶8}     The trial court did not err in the imposition of sentence. The first

assignment of error is overruled.


                                Ineffective Assistance


       {¶9}     In her second assignment of error, Kinley argues that she received

ineffective assistance from her trial counsel because counsel failed to ask the trial

court to waive the imposition of court costs at sentencing. She contends there was a




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                     OHIO FIRST DISTRICT COURT OF APPEALS



strong probability that the trial court would have waived the payment of court costs

and that she was prejudiced by counsel’s actions.

       {¶10} Counsel will not be considered ineffective unless her or his
performance was deficient and caused actual prejudice to the defendant. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.

Strickland at 688; Bradley at 142.     A defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceeding

would have been different but for the deficient performance.              Strickland at

694; Bradley at 142. A reviewing court must indulge a presumption that counsel’s

behavior fell within the acceptable range of reasonable professional assistance.

Strickland at 689; Bradley at 142.

       {¶11} A trial court is required to impose court costs pursuant to R.C.
2947.23(A)(1)(a), which specifically states that “[i]n all criminal cases, including

violations of ordinances, the judge or magistrate shall include in the sentence the

costs of prosecution, including any costs under section 2947.231 of the Revised Code,

and render a judgment against the defendant for such costs.” But R.C. 2947.23(C)

further provides that “[t]he court retains jurisdiction to waive, suspend, or modify

the payment of the costs of prosecution, including any costs under section 2947.231

of the Revised Code, at the time of sentencing or at any time thereafter.” So although

the imposition of the court costs is mandatory, the trial court has the authority to

waive the payment of the costs any time after they are imposed, as long as they

remain unpaid. State v. Braden, Slip Opinion No. 2019-Ohio-4204, ¶ 23 and 30;

State v. Moore, 6th Dist. Erie No. E-19-009, 2019-Ohio-4609, ¶ 15.

       {¶12} In State v. Davis, Slip Opinion No. 2020-Ohio-309, the Ohio Supreme
Court recently addressed whether trial counsel’s failure to ask the trial court to waive


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                       OHIO FIRST DISTRICT COURT OF APPEALS



court costs at sentencing constituted ineffective assistance when the defendant had

previously been found indigent. The court held that “a court must review the facts

and circumstances of each case objectively and determine whether the defendant

demonstrated a reasonable probability that had his counsel moved to waive court

costs, the trial court would have granted that motion.” Id. at ¶ 14. Prejudice cannot

be presumed merely because the defendant had previously been found indigent. Id.

at ¶ 15. Nor can the lack of prejudice be presumed merely because the defendant

may move for a waiver of court costs at a later time after sentencing. Id. at ¶ 14.

       {¶13} Here, Kinley argues that the trial court would likely have granted a
motion to waive court costs because she previously had been found indigent, her

financial circumstances had not changed at the time of sentencing, and appellate

counsel had been appointed for her. We hold that Kinley has failed to demonstrate a

reasonable probability that the trial court would have granted a motion to waive

court costs. Kinley has demonstrated that she was indigent, but as the Davis court

noted, that is not sufficient for prejudice to be presumed. See id. at ¶ 15. Moreover,

there is evidence in the record that Kinley held steady employment until her arrest.

       {¶14} Because Kinley has failed to establish that she was prejudiced by
counsel’s failure to request a waiver of court costs, we overrule the second

assignment of error.


                                   Jail-Time Credit


       {¶15} In her third assignment of error, Kinley argues that the trial court
erred by awarding her only two days of jail-time credit in the judgment entry, when it

had awarded her 52 days of jail-time credit at sentencing. The state concedes that

the judgment entry does not correctly reflect the amount of jail-time credit.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} We agree, and therefore sustain Kinley’s third assignment of error.
This case is remanded for the trial court to correct nunc pro tunc the clerical error in

its judgment entry so that the entry reflects that Kinley is entitled to 52 days of jail-

time credit. The judgment of the trial court is otherwise affirmed.

                                                                   Judgment accordingly.



CROUSE and WINKLER, JJ., concur.




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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