[Cite as State v. Brandyberry, 2017-Ohio-4320.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                         :
                                                       :
         Plaintiff-Appellee                            :   Appellate Case No. 2015-CA-30
                                                       :
 v.                                                    :   Trial Court Case No. 2015-CR-58
                                                       :
 LANCE T. BRANDYBERRY                                  :   (Criminal Appeal from
                                                       :   Common Pleas Court)
         Defendant-Appellant                           :
                                                       :

                                                  ...........

                                                  OPINION

                             Rendered on the 16th day of June, 2017.

                                                  ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, Kettering, Ohio 45429
      Attorney for Defendant-Appellant

                                             .............




TUCKER, J.
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       {¶ 1} Defendant-appellant Lance Brandyberry appeals from his conviction and

sentence, following a plea of guilty, for one count of grand theft, one count of receiving

stolen property, and one count of unauthorized use of a vehicle. He contends that the

trial court did not comply with the provisions of R.C. 2929.19(D). He further contends

that the trial court erred by including court-appointed counsel fees, fees and costs into the

post-confinement payment schedule.

       {¶ 2} We conclude that the trial court made findings sufficient to comport with the

requirements of R.C. 2929.19(D). However, we conclude that the trial court did err with

regard to fees and costs. Accordingly, we hereby modify the trial court’s final judgment

entry by vacating and excising only the words “court costs” and “court appointed legal

fees” from the financial obligation payment schedule to the extent that the schedule

compels Brandyberry to make monthly payments toward his court-appointed counsel fees

and costs in connection with his criminal case. The judgment of the trial court is affirmed

as modified.



                            I. Facts and Procedural History

       {¶ 3} In March 2015, Phil and Tina Cook reported the theft of five guns, jewelry

and a vehicle to the Champaign County Sheriff’s Office. An investigation revealed that

Brandyberry, Tina Cook’s son, had taken the guns, jewelry and vehicle. Brandyberry

sold some of the guns. He also sold the jewelry.

       {¶ 4} On May 7, 2015, Brandyberry was indicted on five counts of grand theft

(firearm), one count of grand theft (vehicle), eight counts of receiving stolen property, one
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count of theft, one count of unauthorized use of a vehicle, and one count of possession

of criminal tools. Following plea negotiations, he entered a plea of guilty to one count

grand theft (vehicle), one count of unauthorized use of a vehicle and one count of

receiving stolen property.     The remaining charges were dismissed.          The trial court

ordered a pre-sentence investigation report (PSI).

         {¶ 5} The trial court sentenced Brandyberry to an aggregate term of 45 months in

prison. The trial court disapproved placement in an intensive program prison. The trial

court also included court-appointed counsel fees and costs into the post-confinement

payment schedule. Brandyberry appealed.

         {¶ 6} Brandyberry’s appellate counsel filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel represented that

she found no potentially meritorious issues for review.           Following her “no merit”

representation, counsel identified two possible issues for appellate review. As required

by Anders, we reviewed the record to determine whether these issues were “wholly

frivolous.” Id. at 744. In doing so, we found one potential assignment of error having

arguable merit that was not raised by appellate counsel. By decision and entry dated

October 21, 2016, we stated “there is a potential assignment of error having arguable

merit concerning the trial court’s inclusion of court-appointed legal fees and expenses

and court costs in the post-prison payment schedule set forth in its judgment entry.” New

appellate counsel was appointed to address that potential assignment of error along with

any other assignments of error that counsel deemed warranted. The matter has been

briefed by both parties.1


1
    Counsel for Brandyberry is admonished to comply with the provisions of App.R. 19(A)
                                                                                       -4-




                               II. Intensive Program Prison

       {¶ 7} Brandyberry’s first assignment of error states as follows:

       THE TRIAL COURT ERRED BY DISAPPROVING INTENSIVE PROGRAM

       PRISON WITHOUT MAKING SPECIFIC FINDINGS THAT GIVE REASONS FOR

       DISAPPROVAL.

       {¶ 8} Brandyberry contends that the trial court erred when it failed to make the

necessary findings, as required by R.C. 2929.19(D), to support its decision to disapprove

him for intensive program prison (IPP).

       {¶ 9} R.C. 2929.19(D) states:

              The sentencing court, pursuant to division (I)(1) of section 2929.14

       of the Revised Code, may recommend placement of the offender in a

       program of shock incarceration under section 5120.031 of the Revised

       Code or an intensive program prison under section 5120.032 of the Revised

       Code, disapprove placement of the offender in a program or prison of that

       nature, or make no recommendation. If the court recommends or

       disapproves placement, it shall make a finding that gives its reasons for its

       recommendation or disapproval.

       {¶ 10} As noted by Brandyberry, “[w]e have previously held that a general

statement indicating that the trial court based its decision to approve or disapprove IPP

after reviewing certain parts of the record (such as criminal history, PSI, and facts and

circumstances of the offense) does not satisfy the finding requirement in R.C.


with regard to appellate brief forms.
                                                                                           -5-

2929.19(D).” State v. Stapleton, 2d Dist. Champaign No. 2016-CA-6, 2016-Ohio-7806,

¶ 14, citing State v. Matthews, 2d Dist. Montgomery No. 26405, 2015-Ohio-3388, ¶ 4-5,

14 and State v. Allender, 2d Dist. Montgomery No. 24864, 2012-Ohio-2963, ¶ 13-14, 23,

26. “However, in State v. Johnson, 2016–Ohio–5160, 69 N.E.3d 176 (2d Dist.), we

recently held that the finding requirement in R.C. 2929.19(D) was satisfied where the trial

court stated at the sentencing hearing that it disapproved IPP ‘[a]fter reviewing the nature

and circumstances of [defendant's] offense, [defendant's] conduct while on bond, the

[PSI], [defendant's] criminal history, [defendant's] prior service of imprisonment, and

[defendant's] conduct while residing at the Tri–County Regional Jail’ and also set forth

facts in the record that supported the trial court’s rationale for the disapproval.     Id. at

¶ 22-23, 28-29.” Stapleton at ¶ 15.

       {¶ 11} At the sentencing hearing in this case, the trial court took statements from

counsel as well as Brandyberry. The court questioned Brandyberry about his drug use

and his extensive criminal history. The trial court noted that it had reviewed the PSI.

The court then made numerous specific findings regarding the nature and circumstances

of the current offenses, Brandberry’s prior criminal offenses, and his conduct while on

community control sanctions.

       {¶ 12} The court noted that Brandyberry’s juvenile record indicated a progression

in the seriousness of the offenses: (1) truancy charges in 2001 and early 2007; (2)

criminal mischief in 2007; (3) no driver’s license, fictitious plates and false information to

a police officer in March 2008; (4) criminal damaging in August 2008; (5) chronic truancy

in 2009; and (6) a 2010 burglary that would constitute a second degree felony if

Brandyberry were an adult.
                                                                                         -6-


       {¶ 13} The trial court also discussed Brandyberry’s criminal history as an adult

which included: (1) unlawful sexual conduct with a minor in 2010; (2) falsification in 2011;

(3) theft in 2011; (4) assault in January 2013; (5) criminal damaging in June 2013; and (6)

misuse of credit cards in 2014.       The court noted that Brandyberry had probation

violations related to four of the six adult offenses. The trial court noted that it had

considered the principles and purposes of sentencing as set forth in R.C. 2929.11, as well

as the seriousness and recidivism factors set forth in R.C. 2929.12.

       {¶ 14} The trial court made all of the appropriate findings as related to sentencing,

and it then effectively referred back to those findings when it made its general statement

disapproving IPP. Thus, we conclude that this record demonstrates that the trial court

complied with R.C. 2929.19(D).

       {¶ 15} The first assignment of error is overruled.



                           III. Court Costs and Attorney Fees

       {¶ 16} Brandyberry’s second assignment of error states:

       THE TRIAL COURT ERRED BY INCLUDING COURT-APPOINTED COUNSEL

       FEES AND COSTS INTO THE COURT’S POST-CONFINEMENT PAYMENT

       SCHEDULE.

       {¶ 17} Brandyberry contests, and the State concedes error, regarding the portion

of his sentencing judgment that provides:

       Defendant shall pay court costs, fine, restitution and court-appointed legal

       fees at a minimum of $50.00 per month beginning the second month after

       release from confinement and due the 28th of each month thereafter.
                                                                                          -7-


       Clerk shall apply monies collected to restitution, court costs, fine, and court-

       appointed legal fees in that order.

       {¶ 18} This court has held that it is improper to include costs and appointed-

counsel fees within a post-confinement payment schedule. State v. Johnson, 2016–Ohio–

5160, 69 N.E.3d 176, ¶ 41-43 (2d Dist.).2

       {¶ 19} The second assignment of error is sustained.



                                     IV. Conclusion

       {¶ 20} Brandyberry’s first assignment of error is overruled and his second

assignment of error is sustained. His second assignment of error being sustained, we

hereby modify the trial court’s final judgment entry by vacating and excising only the words

“court costs” and “court appointed legal fees” from the financial obligation payment

schedule to the extent that the schedule compels Brandyberry to make monthly payments

toward his court-appointed counsel fees and costs in connection with his criminal case.

The judgment of the trial court is affirmed as modified.



                                      .............



HALL, P.J. and FROELICH, J., concur.


2
  We are likewise concerned that the post-prison payment schedule for restititution and
fines is of no effect because after completion of a prison sentence the trial court has no
authority to impose additional sanctions and no authority to enforce monetary obligations
except through civil enforcement mechanisms. See, e.g., State v. Anderson, 143 Ohio
St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512 (trial court had no authority to impose a post-
release no-contact order between offender and the victim.) However the efficacy of that
part of the court's order was not specifically challenged in this appeal.
                         -8-




Copies mailed to:

Jane A. Napier
J. David Turner
Hon. Nick A. Selvaggio
