[Cite as State v. Gorley, 2020-Ohio-3337.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                     Hon. John W. Wise, J.
                                                Hon. Craig R. Baldwin, J.
 -vs-
                                                Case Nos. CT2019-0046, CT2019-0047,
                                                CT2019-0048, & CT2019-0049
 ROBERT C. GORLEY

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Muskingum County
                                                Court of Common Pleas, Case Nos.
                                                CR2019-0072, CR2019-0105, CR2019-
                                                0144, & CR2019-0201


 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        June 12, 2020


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 D. MICHAEL HADDOX                              CARLOS M. CRAWFORD
 Prosecuting Attorney                           Crawford | Glankler, LLC
 Muskingum County, Ohio                         52 North Sandusky Street
                                                Delaware, Ohio 43015
 TAYLOR P. BENNINGTON
 Assistant Prosecuting Attorney
 Muskingum County, Ohio
 27 North Fifth Street – P.O. Box 189
 Zanesville, Ohio 43701
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                                   2
                            CT2019-0049

Hoffman, P.J.
        {¶1}    In Muskingum App. Nos. CT 2019-46, CT2019-47, CT2019-48, and CT

2019-49, defendant-appellant Robert Gorley appeals his convictions and sentences

entered by the Muskingum County Court of Common Pleas, on six counts of violation of

a protection order, two counts of theft by deception, and two counts of theft, after he

entered guilty pleas to the charges. Plaintiff-appellee is the state of Ohio.

                                      STATEMENT OF THE CASE1

        {¶2}    On April 12, 2019, Appellant pled guilty to a Prosecutor’s Bill of Information

in Muskingum County Court of Common Pleas Case No. CR 2019-0201, on two counts

of theft, in violation of R.C. 2913.02(A)(3), felonies of the fifth degree. On the same day,

Appellant pled guilty to six counts of violating a protection order with a prior offense, in

violation of R.C. 2919.27(A)(1), felonies of the fifth degree, in Case No. CR 2019-0072;

one count of theft by deception with a value of $1,000.00-$7,500.00, in violation of R.C.

2913.02(A)(3), a felony of the fifth degree, in Case No. CR2019-0105; and one count of

theft by deception with a value of $1,000.00-$7,500.00, with an elderly victim, in violation

of R.C. 2913.02(A)(3), a felony of the fourth degree, in Case No. CR2019-0144.

        {¶3}    The parties made a joint recommendation Appellant be sentenced to six

months in prison in each case, and the sentences be served consecutively to one another,

for an aggregate prison term of 24 months. Appellant agreed to waive the findings

necessary for the imposition of consecutive sentences. Appellant also agreed to make

restitution in the amount of $9,265.00 in Case No. CR2019-0201; $5,000.00 in Case No.




1A Statement of the Facts underlying Appellant’s convictions is not necessary for our disposition of this
Appeal.
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                         3
                            CT2019-0049

CR2019-0105; and $4,160.00 in Case No. CR2019-0144. The State agreed to nolle

counts 7-55 of the indictment in Case No. CR2019-0072.

         {¶4}   The trial court accepted Appellant’s guilty pleas and ordered a pre-sentence

investigation be completed. Appellant appeared before the trial court for sentencing on

May 20, 2019. After reviewing the pre-sentence investigation report which described

Appellant’s extensive criminal history, the trial court indicated it was not inclined to follow

the parties’ joint recommendation. The trial court imposed an aggregate prison term of

12 months in Case No. CR2019-0072.             In Case No. CR2019-0105, the trial court

sentenced Appellant to a term of 12 months and ordered him to pay restitution in the

amount of $5,000.00. In Case No. CR2019-0144, the trial court sentenced Appellant to

a term of 18 months and ordered him to pay $4,160.00 in restitution. In Case No.

CR2019-0201, the trial court imposed an aggregate prison term of 24 months and ordered

Appellant to pay restitution in the amount of $9,265.00. The trial court ordered the

sentences in the four cases to run consecutively to one another for a total sentence of 66

months. In addition to the restitution, the trial court also ordered Appellant to pay court

costs.

         {¶5}   It is from his convictions and sentences Appellant appeals, raising the

following assignments of error:



                I. THE COURT ERRED IN IMPOSING A SENTENCE WHICH WAS

         GROSSLY DISPROPORTIONATE TO APPELLANT’S CONDUCT AND

         NOT IN ACCORDANCE WITH STATUTES GOVERNING FELONY

         SENTENCING.
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                       4
                            CT2019-0049

              II. THE TRIAL COURT ERRED IN IMPOSING RESTITUTION

       WITHOUT FIRST CONSIDERING APPELLANT’S ABILITY TO PAY.

              III. APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE

       ASSISTANCE IN VIOLATION OF APPELLANT’S RIGHTS PURSUANT TO

       THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION,

       AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION.



                                                 I

       {¶6}   In his first assignment of error, Appellant contends the trial court imposed a

sentence which was grossly disproportionate to his conduct and did not comply with

statutory sentencing mandates. We disagree.

       {¶7}   “[A]n appellate court may vacate or modify a felony sentence on appeal only

if it determines by clear and convincing evidence”: (1) “the record does not support the

trial court's findings under relevant statutes[,]” or (2) “the sentence is otherwise contrary

to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing

evidence is evidence “which will produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469

(1954), paragraph three of the syllabus. A sentence is not clearly and convincingly

contrary to law where the trial court “considers the principles and purposes of R.C.

2929.11, as well as the factors listed in R.C. 2929.12, properly imposes post-release

control, and sentences the defendant within the permissible statutory range.” State v.

Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8; State v. Julious, 12th

Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Thus, this Court may “increase,
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                        5
                            CT2019-0049

reduce, or otherwise modify a sentence only when it clearly and convincingly finds the

sentence is (1) contrary to law or (2) unsupported by the record.” State v. Brandenburg,

146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7.

       {¶8}   Pursuant to R.C. 2929.11(A), “[t]he 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.” To achieve these

purposes, the sentencing court shall consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or both. R.C. 2929.11(A).

Further, the sentence imposed shall be “commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes by similar offenders.” R.C. § 2929.11(B).

       {¶9}   R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

       {¶10} In each of the four entries of sentence, the trial court indicated it had

considered the record, all statements, any victim impact statement, the plea
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                     6
                            CT2019-0049

recommendation, as well as the principles and purposes of felony sentencing under R.C.

2929.11, and the balance of seriousness and recidivism factors under R.C. 2929.12.

      {¶11} At the sentencing hearing, the trial court addressed Appellant as follows:



               THE COURT: * * * I have received the presentence investigation,

      and I have reviewed it thoroughly. I’ve also received your letter, and I read

      it a couple of times. I’ve also received letters from the victims.

               You put their entire security of their homes in an uproar. When

      someone’s at their residence, they want to be safe and secure and have

      that as their sanctuary, and you would be doing work there and leave it in

      turmoil for months at a time, and then just lie to them about it time and time

      again. I don’t think you – if your realized what you did, it’s even worse than

      I think it is.

               Joint recommendation is for 24 months in prison. Again, with regard

      to the presentence investigation, in 2007 you went to prison for what, five

      years?

               THE DEFENDANT: Yes, Your Honor.

               THE COURT: And you were ordered to pay restitution in the amount

      of $34,382.82. None as paid on that, right?

               THE DEFENDANT: Correct, Your Honor.

               THE COURT: And that’s for theft by deception, theft by deception

      with an elderly victim, theft by deception passing bad checks, theft by

      deception, 10 different victims in that.
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                  7
                            CT2019-0049

              Also in 2008 in Muskingum County felony case, theft by deception,

     one year in prison, restitution ordered in that case of $12,090 and none paid.

              Another case, 2008 in Muskingum County, theft by deception, a

     felony of the fourth degree, one year in prison consecutive to the others,

     restitution ordered, $24,837, and none paid.

              Muskingum County, 2002, theft by deception, felony of the fourth

     degree; theft by deception, felony of the third degree; passing bad checks,

     passing bad checks, tampering with evidence, two years in prison. On this

     case, restitution is ordered, $123,676.54, none paid, right?

              THE DEFENDANT: Yes, Your Honor.

              THE COURT: And your misdemeanor record, 2019, this year, you

     were convicted of theft by deception at Wal-Mart on Maple Avenue where

     you picked up a Dremel tool and took it back and tried to get money out of

     it as you’re returning the Dremel tool that you just picked up off the shelf,

     right?

              THE DEFENDANT: Yes, Your Honor.

              THE COURT: That’s what you did. December 2018, petty theft.

     Went in to Lowe’s, filled a cart with merchandise, took it to customer service

     and returned the items using a receipt from July. You just did that, didn’t

     you?

              THE DEFENDANT: Yes, Your Honor.

              THE COURT: Ripley, West Virginia, 2017, petty larceny, sound

     right?
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                     8
                            CT2019-0049

               THE DEFENDANT: Yes, sir.

               THE COURT: 2004, passing bad checks, assault, domestic violence,

      criminal damaging. This is your letter you wrote me. I truly am sorry and

      regretful to all I have affected in this situation and assure it will not happen

      again.

               THE DEFENDANT: Yes, Your Honor.

               THE COURT: But nothing in your life – you were just stealing from

      Lowe’s and Wal-Mart within the last few months. I do wish there was

      another alternative other than prison, you wrote that.

               I read the letters by the victims. Just time and time again you have

      lied. Time and time again our life is in an upheaval because you left stuff

      messed up, man. And how many years have you been in prison in your

      adult life?

               THE DEFENDANT: Eight, Your Honor.

               THE COURT: Didn’t change a thing, did it? I mean, did it?

               THE DEFENDANT: It didn’t, Your Honor.

               THE COURT: Came out, did the same thing, maybe worse. I’m not

      inclined to follow the joint recommendation in this case * * *

               Transcript of May 20, 2019 Sentencing Hearing at 9-12.



      {¶12} Appellant points to several factors which weigh in favor of the trial court

imposing the jointly recommended sentence of 24 months. First, Appellant notes he is

48 years old and, as he ages, his risk of recidivism decreases according to statistics.
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                         9
                            CT2019-0049

Appellant continues the victims did not suffered physical harm as a result of the offenses

(R.C. 2929.12(B)(2)); he did not hold a position of trust in the community and his

occupation did not obligate him to prevent the offenses (R.C. 2929.12(B)(3) and (4)); his

relationships with the victims did not facilitate the commission of the offenses (R.C.

2929.12(B)(6)); he did not commit the offenses for hire or as part of organized criminal

activity (R.C. 2929.12(B)(7)); and he was not motivated by prejudice(R.C. 2929.12(B)(8))

. Appellant adds he openly expressed his remorse and accepted responsibility for his

behavior. Appellant maintains a lengthy prison term will prevent him from becoming

gainfully employed and make the payment of restitution more difficult.

       {¶13} Upon review of the record, we find Appellant’s sentence was not “grossly

disproportionate” to his conduct and was in compliance with the statutory guidelines for

felony sentencing.    Appellant has an extensive criminal history, has not responded

favorably to criminal sanctions, and has failed to pay any restitution in the past. Despite

multiple convictions and serving a total of 8 years in prison, Appellant continued to engage

in the same pattern of criminal behavior. We do not find by clear and convincing evidence

“that the record does not support the sentencing court's findings,” or “that the sentence is

otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b).

       {¶14} Appellant’s first assignment of error is overruled.

                                                II

       {¶15} In his second assignment of error, Appellant submits the trial court erred in

ordering him to pay restitution without considering his present and future ability to pay.

       {¶16} Pursuant to R.C. 2929.18(A)(1), a trial court may order an offender to pay

restitution to the victim of the crime in an amount based on the victim's economic loss.
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                       10
                            CT2019-0049

However, R.C. 2929.19(B)(5) requires the court to consider “the offender's present and

future ability to pay the amount of the sanction or fine” prior to imposing a financial

sanction.

       {¶17} This Court has “previously observed while the better practice is for a trial

court to explain on the record it considered an offender's financial circumstances, courts

have consistently held a trial court need not explicitly state in its judgment it considered a

defendant's ability to pay a financial sanction.” State v. Eblin, 5th Dist. Muskingum App.

No. CT2019-0037, 2020-Ohio-810, ¶28 (Citation omitted). “Rather, courts look to the

totality of the record to see if this requirement has been satisfied.” Id. (Citation omitted).

“A court complies with Ohio law if the record shows the court considered a pre-sentence

investigation report providing all pertinent financial information regarding an offender's

ability to pay restitution.” Id. (Citation omitted).

       {¶18} At the change of plea hearing, the Prosecutor advised the trial court, as part

of the joint recommendation, Appellant agreed to pay restitution in the amount of

$5,000.00 in Case No. CR2019-0105, $4,160.00 in Case No. CR2019-0144, and

$9,265.00 in Case No. CR2019-0201. The trial court conducted a Crim. 11 colloquy with

Appellant and specifically asked him if, as part of the joint recommendation, he agreed to

pay the aforementioned amounts in the respective cases.                Appellant answered

affirmatively.

       {¶19} “If there is a plea agreement, the trial court may satisfy its burden to consider

a defendant's ability to pay by asking the defendant if he understands that the restitution

amount is part of the sentence.” State v. Demeter, 8th Dist. Cuyahoga No. 107252, 2018-

Ohio-5361, ¶ 8, (Citations omitted). In this case, Appellant affirmed during the plea
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                         11
                            CT2019-0049

colloquy he understood restitution to the victims was part of the joint recommendation.

Accordingly, we find the trial court satisfied its burden to consider Appellant’s ability to

pay restitution pursuant to R.C. 2929.19(B)(5).

       {¶20} In addition to its position the trial court properly considered Appellant’s

ability to pay restitution, the State submits, pursuant to Article I, Section 10a of the Ohio

Constitution, known as Marsy’s Law, the victims are “entitled to full and timely restitution,

regardless of the offender’s ability to pay, or whether the trial court considered their ability

to pay.” Brief of Appellee at 8.

       {¶21} In State v. Queen, 3rd Dist. Logan App. No. 8-19-41, 2020-Ohio-618, the

Third District Court of Appeals recognized the potential ambiguity between Marsy’s Law,

and R.C. 2929.18(A)(1) and R.C. 2929.19(B)(5):



              “[O]n February 5, 2018, the amendment to Article I, Section 10a of

       the Ohio Constitution, known as Marsy's Law, became effective.” State v.

       Jones, 1st Dist. Hamilton No. C-190039, 2020-Ohio-81, ¶ 9. Under this

       provision, victims have a series of rights that are “to be protected in a

       manner no less vigorous than the rights afforded to the accused.” Article I,

       Section 10a of the Ohio Constitution. One of these rights is “to full and timely

       restitution from the person who committed the criminal offense or delinquent

       act against the victim * * *.” Id. at (A)(7). The language in R.C. 2929.18(A)(1)

       gives trial courts the option to impose restitution against a criminal

       defendant as a financial sanction. It is not clear how the language of Marsy's

       Law, which appears to give a victim the right to restitution, interacts with
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                         12
                            CT2019-0049

       R.C. 2929.18(A)(1) or R.C. 2929.19(B)(5). In particular, it is not clear how

       the defendant's statutory right to have his ability to pay considered under

       R.C. 2929.19(B)(5) interacts with the victim's constitutional right to

       restitution under Article I, Section 10a(A)(7). Id. at footnote 1.

              The Queen Court determined,               “In this case, however, the

       defendant's statutory right and the victim's constitutional right are not in

       conflict because we have determined that the defendant has the ability to

       pay and that the trial court did not err in awarding the victim restitution. Thus,

       our ‘ability to pay’ analysis from R.C. 2929.19(B)(5) does not interfere with

       any right to restitution that the victims have. In the absence of such a

       conflict, we do not need to further consider the effect that Marsy's Law has

       on the operation of R.C. 2929.18(A)(1) or R.C. 2929.19(B)(5).” Id.



       {¶22} Like the Queen Court, we find Appellant’s statutory right and the victims’

constitutional rights are not in conflict in this case as the trial court considered Appellant’s

ability to pay by asking Appellant if he understood and agreed to pay restitution as part of

the joint recommendation.

       {¶23} Based upon the foregoing, Appellant’s second assignment of error is

overruled.

                                                  III

       {¶24} In his final assignment of error, Appellant raises a claim of ineffective

assistance of counsel.    Specifically, Appellant maintains trial counsel was ineffective for
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                          13
                            CT2019-0049

failing to object to the trial court’s order of restitution and failing to request the trial court

waive the imposition of court costs.

       {¶25} Our standard of review for ineffective assistance claims is set forth in

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

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

       {¶26} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,

693 N.E.2d 267 (1998). In addition, the United States Supreme Court and the Ohio

Supreme Court have held a reviewing court “need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland

at 697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189

(1980).
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                       14
                            CT2019-0049

          {¶27} Assuming, arguendo, Appellant’s trial counsel was ineffective for failing to

object to the trial court’s order of restitution, we find Appellant cannot established he was

prejudiced as the result of counsel’s ineffectiveness. As discussed in Assignment of Error

II, supra, Appellant agreed to pay restitution as part of the joint recommendation, and the

trial court considered Appellant’s ability to pay by confirming he understood and agreed

to pay restitution as part of the joint recommendation.

          {¶28} We now turn to Appellant’s assertion trial counsel was ineffective for failing

to object to the trial court’s imposition of court costs.

          {¶29} R.C. 2947.23, which governs judgment for costs, provides, in pertinent part:

“In all criminal cases, including violations of ordinances, the judge or magistrate shall

include in the sentence the costs of prosecution * * * and render a judgment against the

defendant for such costs.” R.C. 2947.23(A)(1)(a). However, subsection (C) permits the

trial court to retain jurisdiction “to waive, suspend, or modify the payment of the costs of

prosecution * * * at the time of sentencing or at any time thereafter.” Therefore, a trial

court has discretion to waive the payment of court costs whether a defendant is indigent

or not.

          {¶30} Appellant has failed to present any additional facts or circumstances from

those he did with respect to his argument relative to the restitution orders to support a

finding there was a reasonable probability the trial court would have sustained an

objection to the imposition of court costs.

          {¶31} As this Court noted in State v. Eblin, 5th Dist. Muskingum No. CT2019-

0036, 2020-Ohio-1216, “[w]e considered, as part of this analysis, whether the trial court's

denial of such a motion would have been an abuse of discretion and find nothing within
Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, &                    15
                            CT2019-0049

the facts and circumstances of this case that would lead us to find that a failure to grant

the motion would constitute an abuse.” Id. at ¶ 21. Accord, State v. Stevens, 5th Dist.

Muskingum Nos. CT2019-0059 & CT2019-0060, 2020-Ohio-1300.

       {¶32} Because Appellant cannot establish there was a reasonable probability the

outcome would have been different had trial counsel objected, we find Appellant was not

prejudiced by counsel’s failure to do so.

       {¶33} Appellant’s third assignment of error is overruled.

       {¶34} The judgment of the Muskingum County Court of Common Pleas is

affirmed.




By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur
