[Cite as State v. Hill, 2019-Ohio-2743.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                             No. 107445
                 v.                              :

McKALE HILL,                                     :

                 Defendant-Appellant.            :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: July 3, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                   Case Nos. CR-17-613232-A and CR-17-620544-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Blaise D. Thomas, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 John T. Martin and Paul Kuzmins, Assistant Public
                 Defenders, for appellant.


MARY EILEEN KILBANE, A.J.:

                   Defendant-appellant, McKale Hill (“Hill”), appeals the trial court’s

decision ordering restitution and imposing a fine. For the reasons set forth below,

we affirm.
               Hill was charged in three separate cases. In the first, Cuyahoga C.P.

No. CR-17-613232, Hill was charged in February 2017 with aggravated robbery, with

one- and three-year firearm specifications attached, and also charged with having

weapons while under disability (“HWWUD”). In the second, Cuyahoga C.P. No. CR-

17-613191-A, Hill was charged in March 2017 with one count of drug possession. In

the third, Cuyahoga C.P. No. CR-17-620544, Hill was charged in August 2017 with

aggravated murder, murder, and felonious assault, with one- and three-year firearm

specifications attached to each charge. Hill was also charged with HWWUD.

               In May 2018, Hill reached a plea agreement with the state regarding

all three cases. In Case No. CR-17-613232, Hill agreed to plead guilty to aggravated

robbery with the deletion of the firearm specifications. Under the agreement, the

HWWUD charge would be dismissed. In Case No. CR-17-613191, Hill agreed to

plead guilty as indicted. In Case No. CR-17-620544, Hill agreed to plead guilty to an

amended charge of involuntary manslaughter with one- and three-year firearm

specifications attached. Hill also agreed to plead guilty to an amended charge of

felonious assault, with the deletion of the firearm specifications, and plead guilty to

HWWUD. Under the agreement, the murder charge would be dismissed.

               Further, under the agreement, the charges for involuntary

manslaughter and felonious assault would merge. Finally, the state and Hill jointly

agreed to a recommended sentence of 18-20 years in prison. The prosecuting

attorney placed on the record that under R.C. 2953.08(D)(1), if the trial court
imposed a sentence duly authorized by law, and it was jointly recommended, it was

not subject to review.

              Thereafter, the trial court reviewed the charges, the potential

penalties, and the plea agreement with Hill. The trial court explained that he would

impose the recommended sentence of 18, 19, or 20 years and that Hill would be

subject to a mandatory five-year period of postrelease control. Hill then proceeded

to plead guilty as outlined in the agreement.

              In June 2018, Hill appeared for sentencing. The trial court indicated

that the victim of the aggravated robbery in Case No. CR-17-613232 had requested

restitution in the amount of $7,714. Defense counsel objected to the requested

amount. The trial court proceeded to review the itemized list provided by the

probation department, which included a jacket valued at $220, a jogging suit valued

at $125, a pair of boots valued at $190, a Cleveland Cavaliers NBA Championship

ring valued at $4,999, lost contacts valued at $180, bandages valued at $45, and

$1,800 in damage to the victim’s vehicle.

              Defense counsel agreed with the values pertaining to the jacket, the

jogging suit, and the pair of boots, but disagreed with the value of the Cleveland

Cavaliers NBA Championship ring. Defense counsel indicated that he had been

provided no information regarding the damage to the victim’s vehicle, the lost

contacts and the bandages.

              The state presented the testimony of Benita Ramsey (“Ramsey”), the

great aunt of the victim in Case No. CR-17-620544. Ramsey testified that she had
incurred approximately $14,000 in funeral expenses and that she could furnish the

receipts. Ramsey testified that the cost incurred posed a hardship and she would

accept whatever amount the trial court thought was fair.

               Defense counsel renewed its objection and opined that Hill would not

be in a position to pay the restitution after serving 18 to 20 years in prison. Despite

his objection, defense counsel asked the trial court to proceed with sentencing. The

trial court, however, continued the hearing to give the parties time to furnish

additional documentary evidence of economic loss.

               Approximately one week later, the trial court reconvened the hearing

and revisited the issue of restitution. The state presented additional documentation

to support the request for restitution in Case Nos. CR-17-613232 and CR-17-620544.

Defense counsel presented a listing of Cavaliers Championship replica rings for sale

on eBay that ranged in price from $9 to $70.

               Thereafter, in Case No. CR-17-613232, the trial court sentenced Hill

to six years in prison, fined him $10,000, and ordered restitution in the amount of

$1,915. In Case No. CR-17-613191, the trial court sentenced Hill to one year, which

would be served concurrently to the sentence in Case No. CR-17-613232. In Case

No. CR-17-620544, the trial court sentenced Hill to 11 years, plus 3 years for the

firearm specification for the charge of involuntary manslaughter, for a total of 14

years. The trial court sentence Hill to three years for HWWUD to be served

concurrently with the sentence imposed for involuntary manslaughter. The trial

court ordered restitution in the amount of $12,759. The sentences imposed in CR-
17-613232 and CR-17-620544 were to be served consecutively for an aggregate

prison sentence of 20 years.

                 Hill now appeals, assigning the following two errors for review:

                                Assignment of Error One

         The trial court erred in imposing restitution when the plea agreement
         specifically did not contemplate restitution and where the trial court’s
         plea colloquy never mentioned restitution.

                                Assignment of Error Two

         The trial court erred in imposing a fine of $10,000 in CR-613232 in
         light of [Hill’s] indigence and the large term of imprisonment imposed.

                 In the first assignment of error, Hill argues the trial court erred by

imposing restitution because it was not part of his plea agreement with the state.

                 We review a trial court’s decision to order restitution for abuse of

discretion. State v. Maurer, 2016-Ohio-1380, 63 N.E.3d 534, ¶ 12 (8th Dist.); State

v. McLaurin, 8th Dist. Cuyahoga No. 103068, 2016-Ohio-933, ¶ 8. An abuse of

discretion implies that the trial court’s attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

                 In the instant case, following Hill’s change of plea and after the trial

court had continued the sentencing hearing, for one week, to give the parties the

opportunity to further discuss the issue of restitution, the following exchange took

place:

         [THE COURT]:       Are you suggesting that the Court is without
         jurisdiction or unable to impose any financial sanctions including
         restitution because it wasn’t mentioned in the plea?
      [DEFENSE COUNSEL]: As far as jurisdiction goes, I mean, obviously,
      the Court has jurisdiction. My argument is —

      [THE COURT]:         As far as 2929.18.

      [DEFENSE COUNSEL]: I know 2929.18. I think it applies. Here’s my
      point, I think that that was not part of the bargain that the State made.
      And that if they intended on asking for restitution, a lot of restitution,
      that should have been made part of the plea bargain on the record. And
      I think the plea bargain is fair. I think what he plead to and what he
      did. I think the range is fair. That’s why we plead to it, and we just, I
      would ask that the Court just stick to that and not impose restitution.

      [STATE]: The plea bargain as outlined was the plea bargain. It
      spoke to penalties in terms of incarceration and acceptance of
      responsibility for the homicide. It’s silent on the issue of fines, costs, or
      restitution. To argue since it’s silent that the Court is deprived of its
      inherent jurisdiction to impose those remedies or penalties I think is
      not part of the law’s plea bargain or contract. I think the Court does
      retain inherent authority to order a financial either restitution or fines
      or costs.

               Pursuant to R.C. 2929.18(A)(1), a trial court may order an offender to

pay restitution to the victim’s family “in an amount based on the victim’s economic

loss” as part of a felony sentence.

               R.C. 2929.18(A)(1) provides, in relevant part:

      Except as otherwise provided in this division and in addition to
      imposing court costs pursuant to section 2947.23 of the Revised Code,
      the court imposing a sentence upon an offender for a felony may
      sentence the offender to any financial sanction or combination of
      financial sanctions authorized under this section. Financial sanctions
      that may be imposed pursuant to this section include, but are not
      limited to, the following:

      (1) Restitution by the offender to the victim of the offender’s crime or
          any survivor of the victim, in an amount based on the victim’s
          economic loss. * * * If the court imposes restitution, at sentencing,
          the court shall determine the amount of restitution to be made by
          the offender. If the court imposes restitution, the court may base
          the amount of restitution it orders on an amount recommended by
          the victim, the offender, a presentence investigation report,
          estimates or receipts indicating the cost of repairing or replacing
          property, and other information, provided that the amount the
          court orders as restitution shall not exceed the amount of the
          economic loss suffered by the victim as a direct and proximate result
          of the commission of the offense. If the court decides to impose
          restitution, the court shall hold a hearing on restitution if the
          offender, victim, or survivor disputes the amount.

               A plain reading of the above statute vests the trial court with

jurisdiction to order restitution. With respect to the amount of restitution imposed,

the court “must engage in a ‘due process ascertainment that the amount of

restitution bears a reasonable relationship to the loss suffered.’” McLaurin, 8th

Dist. Cuyahoga No. 103068, 2016-Ohio-933, at ¶ 13, quoting State v. Borders, 12th

Dist. Clermont No. CA2004-12-101, 2005-Ohio-4339, ¶ 36. Further, the amount

must be supported by competent, credible evidence. State v. Johnson, 2018-Ohio-

3670, 119 N.E.3d 914, ¶ 55 (8th Dist.), citing State v. Gears, 135 Ohio App.3d 297,

300, 733 N.E.2d 683 (6th Dist.1999).

               The record indicates that the trial court held two hearings on the issue

of restitution after defense counsel objected. Between the first and second hearing,

documentary evidence was presented to aid the trial court in determining an

amount that was reasonable. Our review of the record reveals that there was

competent and credible evidence from which the trial court was able to discern the

amount of restitution to a reasonable degree of certainty. As a result, the trial court

satisfied the statutory requirements.
               We also note that at the first hearing, the trial court asked defense

counsel if Hill wanted to withdraw his pleas. Defense counsel declined and indicated

he wanted to proceed with sentencing. In addition, there is nothing in the record to

suggest that defense counsel revisited the plea bargain with the state, during the

one-week period between the two hearings. There is no indication that defense

counsel lodged a complaint with the prosecutor’s office that restitution was not

contemplated or engaged in any effort to have restitution not be part of the

agreement.

               Further, prior to Hill entering his pleas, the trial court stated: “The

only promise I am making is that I will impose a sentence of 18, 19, or 20 years. Do

you understand that?” Hill stated that he understood. Thus, Hill was on notice that

the trial court was not limited by the plea agreement.

               Further, in State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994

N.E.2d 423, when the Ohio Supreme Court considered whether it was error for the

trial court to order a defendant to pay an amount of restitution in the absence of it

being specified in the plea agreement. The court stated:

       The certified question merges the above statutory requirements with
       the concept of the plea agreement and needlessly confuses the matter.
       The statute contains no statement about incorporating restitution into
       plea agreements, so that is not a statutory mandate.

Id. at ¶ 23.

               Based on the foregoing, we find no abuse of discretion in the trial

court’s order of restitution in these matters.

               Accordingly, the first assignment of error is overruled.
               In the second assignment of error, Hill argues the trial court erred in

imposing a $10,000 fine. In support of his argument, Hill claims his indigence and

lengthy prison sentence should have precluded the fine.

               Despite Hill’s assertions, Ohio law does not prohibit a trial court from

imposing a fine on an indigent defendant. State v. Hampton, 8th Dist. Cuyahoga

No. 103992, 2016-Ohio-5419, citing State v. Williams, 8th Dist. Cuyahoga No.

92419, 2009-Ohio-5964, ¶ 8. See also State v. Ramos, 8th Dist. Cuyahoga No.

92357, 2009-Ohio-3064; and State v. Roark, 8th Dist. Cuyahoga No. 84992, 2005-

Ohio-1980.

               Likewise, the fact that a defendant is sentenced to a lengthy prison

sentence “does not necessarily preclude the imposition of financial sanctions.” State

v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135 (8th Dist.), citing State v. Western, 2015-

Ohio-627, 29 N.E.3d 245, ¶ 57 (2d Dist.). “For example, ‘[t]he possibility of working

while in prison is one factor that a trial court can use in determining an inmate’s

ability to pay financial sanctions.’” Id., quoting Western at ¶ 55.

               Further, neither statute nor case law prescribes the express factors a

court must consider or findings a court must make when determining the offender’s

present and future ability to pay. State v. Theodorou, 8th Dist. Cuyahoga No.

105630, 2017-Ohio-9171, citing State v. Loving, 180 Ohio App.3d 424, 2009-Ohio-

15, 905 N.E.2d 1234, ¶ 9 (10th Dist.). Rather, the record need only reflect that the

court considered the offender’s present and future ability to pay before it imposed a

financial sanction on the offender. Id.
               Here, we are satisfied that the trial court considered Hill’s present and

future ability to pay before imposing financial sanctions. As previously noted, the

trial court held two hearings before imposing financial sanctions. The record

indicates that Hill was 22 years old at the time he was sentenced. The trial court

encouraged Hill to make good use of his time while in prison and advised Hill that

he could do community work service to help pay down the costs and fines.

               Based on the foregoing, we find no abuse of discretion in the trial

court’s imposition of a fine.

               Accordingly, the second assignment of error is overruled.

               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 of this court directing the common

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

been affirmed, any bail pending 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.


                                      ______
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR
