[Cite as State v. Morgan, 2018-Ohio-1834.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105682




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                             CHRISTIAN N. MORGAN
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-16-608584-A

        BEFORE: Keough, J., McCormack, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: May 10, 2018
ATTORNEY FOR APPELLANT

Victoria Bader
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Scott C. Zarzycki
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Christian Morgan, appeals his sentence following a

guilty plea. For the reasons that follow, we affirm.

       {¶2} In March 2016, Morgan, age 17, was charged in a juvenile court complaint,

which alleged that he committed two second-degree felony offenses of felonious assault,

if committed as an adult. It was alleged that during an altercation at a laser tag facility,

Morgan assaulted the victim who suffered severe and serious physical harm. Following

a hearing, the juvenile court found Morgan not amenable to juvenile court treatment and

transferred the case to the general division of the common pleas court.

       {¶3} In August 2016, Morgan was indicted for one count of felonious assault in

violation of R.C. 2903.11(A)(1); he subsequently pleaded guilty to attempted felonious

assault. At sentencing, the trial court considered a presentence investigation report, the

victim’s impact statement, and mitigation statements by Morgan and his attorney. The

court sentenced Morgan to three years in prison and ordered the stipulated restitution

amount of $7,670.93.

       {¶4} Morgan was granted leave to file a delayed appeal, and he now raises three

assignments of error, which will be addressed together where appropriate.

                                      I. Restitution

       {¶5} In his first assignment of error, Morgan contends that the trial court erred

when it imposed a financial sanction without considering his present and future ability to

pay the sanction, in violation of R.C. 2929.19(B)(5). He claims in his third assignment
of error that he was denied effective assistance of trial counsel because his attorney failed

to object when the financial sanction was imposed without any consideration of present

and future ability to pay.

       {¶6} R.C. 2929.18(A)(1) permits a trial court, as part of a sentence, to order

restitution to the victim of the offender’s crime in an amount based on the victim’s

economic loss. Before imposing a financial sanction, the trial court must consider “the

offender’s present and future ability to pay the amount of the sanction or fine.” R.C.

2929.19(B)(5).

       {¶7} However, the statute does not require the trial court to consider any specific

factors in making this determination, and it does not require the trial court to expressly

state that it considered a defendant’s ability to pay. State v. Aniton, 8th Dist. Cuyahoga

No. 102440, 2015-Ohio-4080, ¶ 19, citing State v. Tate, 2d Dist. Montgomery No. 25386,

2013-Ohio-5167, ¶ 52.

       “The record should, however, contain ‘evidence that the trial court
       considered the offender’s present and future ability to pay before imposing
       the sanction of restitution.’ The trial court may comply with this
       obligation ‘by considering a presentence-investigation report, which
       includes information about the defendant’s age, health, education, and work
       history.’ ‘The court’s consideration * * * may be inferred from the record
       under appropriate circumstances.’”

(Citations omitted.) Aniton at id., quoting Tate at id.

       {¶8} In this case, the record demonstrates that the trial court considered Morgan’s

present and future ability to pay the restitution order. Although the trial court did not

specifically state on the record the exact words that it had considered Morgan’s present
and future ability to pay restitution, the court had the benefit of a presentence

investigation report, which included Morgan’s age and employment history. Absent any

evidence to the contrary, we can infer that the trial court considered Morgan’s ability to

pay because the relevant information was contained in the presentence report. See Tate

at ¶ 52-54 (although trial court did not state it reviewed the presentence report, absent any

evidence to the contrary, the court’s consideration may be inferred from the record).

Additionally, defense counsel referenced the presentence investigation report during

mitigation and highlighted Morgan’s employment as a justification for the imposition of

community control sanctions.

       {¶9} Moreover, Morgan stipulated to the restitution order at sentencing. (Tr. 16.)

When the parties stipulate to the amount of restitution, this “serve[s] as a sufficient basis

to support the trial court’s order and precludes defendant from complaining about it now

on appeal.” State v. Hody, 8th Dist. Cuyahoga No. 94328, 2010-Ohio-6020, ¶ 25, citing

State v. Sancho, 8th Dist. Cuyahoga No. 91903, 2009-Ohio-5478. Accordingly, we find

no error by the trial court.

       {¶10} We also find that Morgan was not deprived of effective assistance of

counsel by counsel failing to object to the restitution order. To establish ineffective

assistance of counsel, a defendant must demonstrate that (1) counsel’s performance fell

below an objective standard of reasonable representation and (2) he was prejudiced by

that performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.         A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland at 694.

       {¶11} The failure to prove either prong of the Strickland two-part test makes it

unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d

378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. Finding that the record

demonstrates that the trial court considered Morgan’s present and future ability to pay and

Morgan stipulated to the restitution amount, we cannot say that Morgan was prejudiced

by his counsel’s failure to object. Moreover, he makes no argument on appeal that his

counsel’s stipulation regarding restitution was in error or made without his consent.

       {¶12} Accordingly, Morgan’s first and third assignments of error are overruled.

                                       II. Sentence

       {¶13} Morgan contends in his second assignment of error that the trial court erred

when it sentenced him to three years in prison for attempted felonious assault because the

sentence is not supported by the record, in violation of R.C. 2953.08(G). Specifically, he

claims that the trial court failed to consider mitigating factors, including his age, genuine

remorse, and no prior ODYS commitment, before imposing the maximum prison sentence

for a third-degree felony.

       {¶14} Appellate review of felony sentences is governed by R.C. 2953.08, which

provides that when reviewing felony sentences, this court may increase, reduce, modify a

sentence, or vacate and remand for resentencing if we clearly and convincingly find that
the record does not support the sentencing court’s statutory findings, if applicable, or the

sentence is contrary to law. R.C. 2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 123, ¶ 22. A sentence is contrary to law if (1) the sentence

falls outside the statutory range for the particular degree of offense, or (2) the trial court

failed to consider the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the sentencing factors in R.C. 2929.12.            State v. Maddox, 8th Dist.

Cuyahoga No. 105140, 2017-Ohio-8061, ¶ 31, citing State v. Hinton, 8th Dist. Cuyahoga

No. 102710, 2015-Ohio-4907.

       {¶15} In this case, a three-year prison sentence falls within the statutory range for a

third-degree felony. Additionally, the trial court found, although no longer required to

do so before imposing the maximum sentence, that Morgan committed the worst form of

the offense. (Tr. 27.) Finally, the trial court stated in its sentencing journal entry that it

considered the required statutory factors and “that prison is consistent with the purpose of

R.C. 2929.11.” This is sufficient to satisfy the court’s obligation under R.C. 2953.08.

State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9. Accordingly,

Morgan’s prison sentence is not contrary to law.

       {¶16} Although Morgan contends that his young age, no prior commitments to

ODYS, and genuine remorse were sufficient mitigating factors to either impose

community control sanctions or a lesser prison term, Morgan’s three-year prison sentence

is supported by the record. The trial court found that Morgan committed the worst form

of the offense after the victim explained to the court how he was traumatically affected,
both physically and emotionally. The record includes photographs and the victim’s

medical records demonstrating the extent of his injuries, including a broken nose,

concussion, loss of his two front teeth, and broken facial bones. Additionally, the record

reflects the trial court’s consideration of protecting the public when it agreed with the

victim’s statement that “his worst fear is that it ends up happening to someone else.” (Tr.

24-25.)   Finally, although Morgan had no prior commitments to ODYS, the record

reflects that this case was not his first criminal offense, and subsequent to the instant case,

another delinquency complaint involving a stolen vehicle was filed against him.

       {¶17} Accordingly, Morgan’s sentence is within the statutory range and the record

reflects that the trial court considered the purposes and principles of felony sentencing set

forth in R.C. 2929.11 and 2929.12. Furthermore, under our review of the facts and

circumstances of the case, we find that the record supports the sentence. Morgan’s

second assignment of error is overruled.

       {¶18} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

TIM McCORMACK, P.J., and
LARRY A. JONES, SR., J., CONCUR
