[Cite as State v. Hocker, 2013-Ohio-5522.]

                            STATE OF OHIO, BELMONT COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )    CASE NO.     12 BE 31
                                              )
        PLAINTIFF-APPELLEE,                   )
                                              )
VS.                                           )    OPINION
                                              )
BRANDON HOCKER,                               )
                                              )
        DEFENDANT-APPELLANT.                  )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Common Pleas
                                                   Court, Case No. 11CR315.


JUDGMENT:                                          Reversed in part; Remanded.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Dan Fry
                                                   Prosecuting Attorney
                                                   147-A West Main Street
                                                   St. Clairsville, Ohio 43950

For Defendant-Appellant:                           Attorney Timothy Young
                                                   Ohio State Public Defender
                                                   Attorney Stephen Hardwick
                                                   Assistant Public Defender
                                                   250 East Broad Street, Suite 1400
                                                   Columbus, Ohio 43215


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                   Dated: December 9, 2013
[Cite as State v. Hocker, 2013-Ohio-5522.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Brandon Hocker appeals after being sentenced to
sixteen months in prison by the Belmont County Common Pleas Court. He contests
only the portion of the sentence ordering him to reimburse the state for costs of
confinement. Pursuant to R.C. 2929.18 (A)(5)(a)(ii), a hearing must be held on ability
to pay all or part of the costs of confinement before reimbursement of such costs can
be ordered as part of the sentence. As there is no indication that the sentencing
hearing contained a hearing on ability to pay costs of confinement, we reverse the
portion of the order concerning costs of confinement and remand for further
proceedings.
                                   STATEMENT OF THE CASE
        {¶2}     In January of 2012, appellant was indicted for felonious assault for
causing physical harm to another by means of a deadly weapon in violation of R.C.
2923.11(A)(2), a second degree felony.          A public defender was appointed to
represent appellant. On March 16, 2011, a competency evaluation was conducted,
and appellant was found incompetent to stand trial after that evaluation was admitted
at a hearing. He was deemed restored to competency on July 6, 2012, at which time
he withdrew his prior not guilty by reason of insanity plea and pled guilty to an
amended charge of aggravated assault, a fourth degree felony.         A presentence
investigation was ordered at that time.
        {¶3}     Sentencing proceeded on August 17, 2012.       The state made no
comments, and the defense asked for community control, noting the positive effect of
appellant’s mental health treatment.         The court made findings regarding the
seriousness and recidivism factors and found that a community control sanction
would demean the seriousness of the offense. The court sentenced appellant to
sixteen months in prison with credit for the 260 days he had already served. The
court then ordered him to reimburse the state and county for costs of supervision,
confinement, and prosecution.
        {¶4}     Appellant filed a timely notice of appeal from the August 20, 2012
sentencing entry. He only contests the portion of the reimbursement order related to
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costs of confinement as prosecution costs are to be included in the sentence by
statute. See R.C. 2947.23(A)(1)(a) (judge shall include costs of prosecution in all
criminal sentences); State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶ 8 (trial
court can use discretion to waive these costs if asked).
                              ASSIGNMENT OF ERROR
       {¶5}   Appellant’s sole assignment of error provides:
       {¶6}   “The trial court erred in imposing the costs of confinement without first
ascertaining that Mr. Hocker had the ability to pay.”
       {¶7}   Appellant contends that the trial court failed to hold the statutorily-
required hearing before imposing costs of confinement. He does not contest that
such hearing could be incorporated into the sentencing hearing but urges that there
is no indication that his ability to pay for his own costs of confinement was considered
at his sentencing hearing and points out that the court did not find that he was able to
pay.
       {¶8}   Appellant notes that before pronouncing sentence and again in the
sentencing entry, the court stated that it considered the record, oral statements, the
incident report, the PSI, the record of proceedings, the criminal history reports, and
the purposes and principles of sentencing. The record includes two competency
reports.   The various documents show that appellant was 24 at the time of
sentencing. He lived with his mother. He left school after tenth grade and received a
GED while in juvenile detention. He has no assets and no work history. His juvenile
record contained many misdemeanor adjudications.           He spent time in juvenile
detention or group homes and had previously been sentenced to a year in prison for
adult felonies.
       {¶9}   Appellant has been admitted for mental health treatment several times
in the past besides the most recent commitment involving the lack of competency in
this case. He has been diagnosed with schizoaffective disorder, bipolar type and
was in a manic and psychotic state after his arrest for this offense.          He was
additionally diagnosed with polysubstance dependence and an antisocial personality.
At the time of sentencing, he was on two antipsychotics, one medication to control
                                                                                        -3-

side effects, and an antianxiety drug. He has reported using illegal drugs in order to
suppress voices. His mother noted a prior prescription for Haldol shots and their
inability to afford them. She reported that he had successfully applied for disability
(which was discontinued due to a prison sentence). His mother also made reference
to a plan in the family to try not to leave appellant alone.
        {¶10} Appellant posits that the available evidence suggests that he does not
have the ability to pay costs of confinement and asks that we vacate that part of
sentencing entry. Alternatively, he asks that we remand for a hearing on his ability to
pay as this court did in the case of State v. McGee, 7th Dist. No. 02JE39, 2003-Ohio-
2239.
        {¶11} The state has refrained from filing an appellee’s brief. Thus, we can
accept appellant’s statements of facts and issues as correct and reverse the
judgment if his brief reasonably appears to sustain such action. App.R. 18(C). For
the following reasons, we find that appellant’s brief reasonably appears to sustain
reversal and remand in this case.
                                       ANALYSIS
        {¶12} A court imposing a felony sentence may impose upon an offender
financial sanctions such as restitution, a fine, or reimbursement of any or all of the
costs of sanctions incurred by the government. R.C. 2929.18(A)(1)-(5). Types of
reimbursement for the costs of sanctions can include:            a supervision fee for
community control, costs of confinement in prison, or an immobilizing device. R.C.
2929.18(A)(5)(i)-(iii).   See also R.C. 2929.18(A)(5)(b) (reimbursement to local
government if offender is sentenced to confinement in a facility run by said entity).
        {¶13} The statute outlining the sentencing hearing provides that, before
imposing any financial sanction under R.C. 2929.18, the court shall consider the
offender’s present and future ability to pay the amount of the financial sanction. R.C.
2929.19(B)(5). The financial sanction statute generally provides that a court that
imposes a financial sanction upon an offender “may hold a hearing if necessary” to
determine whether the offender is able to pay the sanction or is likely in the future to
be able to pay it. R.C. 2929.18(E).
                                                                                                      -4-

        {¶14} This court has stated that, although it is preferable, the trial court need
not expressly state that it considered a defendant’s ability to pay before imposing a
fine. State v. Gabriel, 7th Dist. No. 09MA109, 2010-Ohio-3151, ¶ 12. Thus, if a court
said it considered PSI and the PSI contained financial information, the reviewing
court can find consideration of ability to pay. Id. And, the reviewing court can also
consider statements by the court, counsel, and the defendant regarding ability to pay
a fine. Id.
        {¶15} However, the portion of R.C. 2929.18 permitting the imposition of costs
of confinement expressly requires a hearing on the amount the offender is able to
pay and sets limits on the amount of reimbursement to be ordered. Specifically, this
provision allows an order of reimbursement of:                      “All or part of the costs of
confinement * * * provided that the amount of reimbursement ordered under this
division shall not exceed the total amount of reimbursement the offender is able to
pay as determined at a hearing and shall not exceed the actual cost of the
confinement.” R.C. 2929.18(A)(5)(ii).1
        {¶16} A specific provision prevails as an exception over a general provision.
State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities (1994), 68 Ohio St.3d
426, 429, 627 N.E.2d 993 (1994); R.C. 1.51. Consequently, R.C. 2929.18(A)(5)(ii)
prevails over R.C. 2929.18(E) where a court is considering whether to order costs of
confinement in a felony sentence.
        {¶17} We have addressed a similar costs of confinement issue in McGee,
where the trial court had ordered the defendant to pay the costs of the action,
appointed counsel costs, and all fees under R.C. 2929.18(A)(4) (which is now (A)(5),
the provision at issue herein). State v. McGee, 7th Dist. No. 02JE39, 2003-Ohio-
2239, ¶ 1. The defendant argued on appeal that the court failed to make a finding on
ability to pay for counsel costs and failed to consider ability to pay any other fees. Id.


        1
        In contrast, neither the section on reimbursement for supervision fees nor the section on
reimbursement for disabling devices contain its own provision setting limits and requiring a hearing.
R.C. 2929.18(A)(5)(i), (iii) (the sections that straddle the section permitting costs of confinement). See
also R.C. 2929.28(A)(3)(a)(ii), (B) (statute permitting costs of confinement for jail sentence in
misdemeanor case contains no mandated hearing).
                                                                                       -5-

at ¶ 3-4. The state filed a stipulation that the defendant’s arguments on appeal had
merit and asked this court to remand for a determination of ability to pay before
assessment of the various costs. Id. at ¶ 5.
       {¶18} First, we addressed the statute pertaining to costs for appointed
counsel.   This statute provides that the fees and expenses for counsel that are
approved by the court shall not be taxed as costs and shall be paid by the county
unless the defendant has, or reasonably may be expected to have, the means to
meet some part of the cost in which case the defendant shall pay an amount he can
reasonably be expected to pay. R.C. 2941.51(D). We concluded that the trial court
must make an affirmative determination that the defendant has, or reasonably may
be expected to have, the means to pay some or all of the cost of legal services.
McGee, 7th Dist. No. 02JE39 at ¶ 8.
       {¶19} We then noted the general requirement that the court must consider the
defendant’s present and future ability to pay for any R.C. 2929.18 sanctions and
found no evidence in the record that the defendant had a present or future ability to
pay for counsel costs or financial sanctions. Id. at ¶ 9-10, citing R.C. 2929.19(B)(6).
Furthermore, we pointed to the monetary limits in the section permitting the
imposition of costs of confinement and held that a hearing was required under that
section. Id. at ¶ 11. This court then vacated the portion of the sentencing entry
imposing costs and fees and remanded for a determination of the defendant’s ability
to pay. Id. at ¶ 12.
       {¶20} Here, appellant’s ability to pay costs of confinement was not addressed
by the state below, and the trial court made no statements indicating that ability to
pay was being considered prior to imposing the reimbursement order. Nor does the
sentencing entry contain a reference to ability to pay or to topics relevant to ability to
pay.   On appeal, the state has decided not to file an appellee’s brief allowing
acceptance of appellant’s facts and issues under App.R. 18(C) since appellant’s brief
reasonably sustains reversal. As there is no indication that a hearing on ability to pay
cost of confinement was incorporated into the sentencing hearing, we apply our
McGee decision. In accordance, the judgment of the trial court regarding the costs of
                                                                                -6-

confinement order is reversed, and the case is remanded for a hearing on ability to
pay.

Waite, J., concurs.
DeGenaro, P.J., concurs.
