[Cite as State v. Collins, 2015-Ohio-3710.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2014-11-135
        Plaintiff-Appellee,                         :
                                                                OPINION
                                                    :            9/14/2015
    - vs -
                                                    :

EDMUND E. COLLINS,                                  :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 13CR29567



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Michael K. Allen & Associates, Mary K. Martin, 5181 Natorp Blvd., Mason, Ohio 45040, for
defendant-appellant



        PIPER, P.J.

        {¶ 1} Defendant-appellant, Edmund E. Collins, appeals from his convictions and

sentence in the Warren County Court of Common Pleas for improperly discharging a firearm

into a habitation and tampering with evidence. For the reasons discussed below, we affirm

the decision of the trial court.

        {¶ 2} On October 12, 2013, individuals who live on Pioneer Village Road near Caesar
                                                                     Warren CA2014-11-135

Creek State Park reported hearing a series of gunshots and observed two men with a white

truck parked along the side of the road near their neighbor's house. Early the next morning,

Helen Walker returned home from work to a "shattered" front door. After entering, she

noticed bullet holes throughout her home, including in her walls, picture frames, and flat-

screen television. When the Warren County Sheriff's Office investigated, Walker relayed to

the deputies she had just moved into the house with her nine-year-old daughter 12 days ago.

Prior to that time, appellant's wife, Missy Collins, lived at the residence with her boyfriend.

       {¶ 3} On November 12, 2013, appellant was indicted on one count of improperly

discharging a firearm into a habitation in violation of R.C. 2923.161(A)(1), with a gun

specification pursuant to R.C. 2941.145(A), and one count of tampering with evidence in

violation of R.C. 2921.12(A)(1).

       {¶ 4} Nineteen witnesses, including eyewitnesses, law enforcement personnel,

appellant's son, and appellant's co-defendant, John Weaver, testified during a three-day jury

trial. After hearing the evidence, the jury found appellant guilty of all counts, including the

firearm specification, and the trial court sentenced appellant to an aggregate of five years in

prison. After a restitution hearing, appellant was ordered to pay $4,689 in restitution to

Walker and her landlord.

       {¶ 5} Appellant now appeals, asserting four assignments of error for review. For

ease of analysis, we will discuss appellant's assignments of error out of order.

       {¶ 6} Assignment of Error No. 4:

       {¶ 7} THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

       {¶ 8} In his fourth assignment of error, appellant argues the jury's verdict was against

the manifest weight of the evidence because the testimony of co-defendant Weaver, who

appeared as a witness for the state, sometimes deviated from the testimony of other
                                              -2-
                                                                    Warren CA2014-11-135

eyewitnesses. Appellant also asserts because Weaver admitted to having five or six mixed

drinks prior to the incident and was intoxicated, the jury lost its way and created a manifest

miscarriage of justice when it believed his testimony.

       {¶ 9} When considering whether a conviction is against the manifest weight of the

evidence, a reviewing court examines the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines "whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered." State v.

Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 45; State v. Thompkins, 78

Ohio St.3d 380, 387 (1997). In making its determination, a reviewing court must be mindful

"the weight to be given to the evidence and the credibility of witnesses are primarily for the

trier of facts." State v. DeHass, 10 Ohio St.2d 230, 231 (1967). Furthermore, a jury verdict

may only be reversed as against the manifest weight of the evidence when there is

unanimous disagreement with the jury's verdict. State v. Gibbs, 134 Ohio App.3d 247, 255

(12th Dist.1999).

       {¶ 10} At trial, Weaver testified that on October 12, 2013, he met appellant at a bar.

As they were drinking, appellant became increasingly agitated about his wife, Missy Collins,

leaving him for another man. Weaver testified he and appellant left the bar and went to

appellant's house where appellant retrieved a handgun wrapped in a white towel. With

Weaver along, appellant then drove in a 2007 Ford F-150 to the parking lot of the Country

Kitchen restaurant where appellant loaded the weapon and threw away the remaining

ammunition. The box of ammunition was wrapped in a yellow cloth and thrown into the

restaurant's dumpster.

       {¶ 11} According to Weaver's testimony, appellant next drove to where he thought

Missy lived in order to "scare" her. Appellant parked in front of the house, where Weaver got
                                             -3-
                                                                     Warren CA2014-11-135

out of the truck and began shooting in the direction of the house. When appellant realized

someone was coming towards them on a riding lawn mower, he told Weaver to get back into

the truck. Before Weaver could do so, appellant moved the truck, striking Weaver and

knocking him into the ditch. Weaver testified appellant then got out of the truck and helped

him from the ditch and into the truck. Weaver testified that prior to appellant placing the gun

into the truck, appellant discharged the gun, and then quickly drove away. Weaver testified

that soon thereafter appellant parked along a nearby road, exited the truck, and tossed the

gun. When appellant returned, he told Weaver he should have thrown the gun farther into

the ditch. Shortly after the men drove away, Deputy David Sheppard pulled them over. The

deputy was in the process of responding to the scene where shots were reportedly fired. The

men denied knowledge of any shooting, and Deputy Sheppard let them leave and then

proceeded to the scene.

       {¶ 12} Patricia Stover and Paul Gordon, two of Walker's neighbors, observed the

shooting. Both Stover and Gordon testified they heard multiple gunshots on October 12,

2013, and saw two men in the vicinity of a white pickup truck. One of the men was

"stumbling" or "wallowing" in the ditch. Stover called 911 from her front porch and Gordon

drove towards the truck on his riding lawn mower to obtain the license plate number, which

Stover conveyed to the dispatcher. Both observed the driver get out of the truck, put the gun

into the truck, and help the other man climb out of the ditch and into the truck. Stover

testified they then "sped off." Gordon testified he recognized the truck because the woman

who formerly lived in Walker's house used to drive it.

       {¶ 13} A Country Kitchen employee testified that on October 12, 2013, he observed a

white Ford F-150 pull up to the dumpster, and after a minute or two, the driver got out, put

something in the dumpster, and left. Detective Paul Barger with the Warren County Sheriff's

Office testified that when he was investigating the shooting, he found a box of ammunition

                                              -4-
                                                                      Warren CA2014-11-135

wrapped in a yellow cloth in a dumpster at the Country Kitchen.

       {¶ 14} Detective Thomas Naumovski with the Warren County Sheriff's Office testified

he searched for the gun used in the shooting based on information obtained from Weaver.

While police initially did not find the gun, a semi-automatic handgun was later found by a 4-H

group picking up trash at Caesar Creek State Park, about a mile away from the area from

where the detective had been searching. Tracy Parker, who was picking up trash, testified

they found the weapon in a ditch wrapped in a towel. Furthermore, Chris Monturo, a forensic

firearm examiner at the Miami Valley Regional Crime Laboratory, testified the casings

recovered from the shooting had the same class characteristics as the weapon found at the

state park. Another witness, Thomas Henderson, confirmed appellant had a semi-automatic

handgun like the one that was found. Henderson further testified appellant admitted to

Henderson that appellant put the truck into reverse with the door open and it knocked

Weaver into the ditch. Appellant told Henderson to tell Walker that appellant was sorry.

       {¶ 15} According to all accounts, two men in a white truck stopped in front of Missy's

former residence where multiple gunshots were fired. Weaver's testimony was confirmed by

eyewitness testimony that Gordon drove towards them on his riding lawnmower, which

caused their quick departure. While some eyewitness testimony did not indicate the driver of

the truck actually fired the gun, the jury was instructed on complicity to improperly discharging

a firearm into a habitation, and a charge of complicity may be in terms of the complicity

statute or the principal offense. See In re B.T.B., 12th Dist. Butler No. CA2014-10-199,

2015-Ohio-2729, ¶ 39.

       {¶ 16} Several witnesses corroborated Weaver's testimony regarding appellant's

disposal of remaining ammunition and the handgun. The ammunition found in the Country

Kitchen's dumpster was wrapped in a yellow cloth as stated by Weaver and was consistent

with the casings found at the scene. While the firearm was not found in the exact location of
                                               -5-
                                                                         Warren CA2014-11-135

Weaver's description, a semi-automatic handgun that had the same class characteristics as

the casings recovered from the scene was found wrapped in a towel in a ditch about a mile

away.

        {¶ 17} Contrary to appellant's arguments, Weaver's testimony did not differ in any

significant way from other eyewitness testimony. Rather, eyewitness testimony generally

corroborated Weaver's testimony, and the fact Weaver was intoxicated at the time relates to

his credibility. See State v. Shipley, 10th Dist. Franklin No. 05AP-385, 2006-Ohio-950, ¶ 9;

State v. Rice, 9th Dist. Summit No. 13517, 1988 WL 76643, *1 (July 20, 1988). Given the

trier of fact has the primary responsibility to weigh the evidence and evaluate witness

credibility, we find the jury did not lose its way or create a manifest miscarriage of justice if it

believed Weaver's testimony and found appellant guilty of improperly discharging a firearm

into a habitation with a firearm specification and tampering with evidence. Additionally, the

jury was instructed that they could believe all the testimony of a witness or any part of the

testimony of a witness. We note that even if Weaver's testimony that appellant discharged

the handgun was not believable, the evidence is overwhelming that appellant aided and

abetted the events such that the jury could have found appellant guilty of the charges as a

complicitor. R.C. 2923.03. Appellant's fourth assignment of error is overruled.

        {¶ 18} Assignment of Error No. 3:

        {¶ 19} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

        {¶ 20} In his third assignment of error, appellant argues his trial counsel's performance

fell below an objective standard of reasonableness that prejudiced him because it altered the

trial's outcome. Appellant asserts his trial counsel failed to compel discovery in a timely

manner, thereby forcing appellant to waive his speedy trial rights. Appellant also contends

his trial counsel inadequately prepared for trial because his trial counsel did not obtain a

video which may have been exculpatory.
                                                -6-
                                                                      Warren CA2014-11-135

       {¶ 21} To establish ineffective assistance of counsel, appellant must show his trial

counsel's performance was both deficient and prejudicial. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).

With respect to deficiency, appellant must show his counsel's performance "fell below an

objective standard of reasonableness." Strickland at 688. There is a "strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance" and

as a result "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689.

"An error by counsel, even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691.

       {¶ 22} In this instance, all of trial counsel's alleged errors relate to appellant's first

appointed trial counsel, Eliot G. Bastian, who did not actually represent appellant at trial. On

July 9, 2014, appellant expressed dissatisfaction with Bastian for failing to timely pursue "six

key pieces of evidence" that were no longer available. At appellant's request, Bastian

withdrew, and the trial court appointed new trial counsel.

       {¶ 23} Prior to removal, Bastian requested two continuances, the first on December

31, 2013, and the second on March 11, 2014. At the hearing on December 31, 2013,

Bastian indicated he needed the continuance to adequately prepare for trial because he just

recently received discovery from the state. At the following hearing, although the state had

produced discovery, Bastian requested funds to hire a private investigator to pursue

additional evidence and witnesses. Bastian also indicated appellant was requesting a

continuance due to appellant's recent medical issues. In both instances, appellant waived

his right to a speedy trial.

       {¶ 24} We find the decisions of appellant's first trial counsel were reasonable and

constituted sound trial strategies. See State v. McBreen, 54 Ohio St.2d 315 (1978),

paragraph one of the syllabus (waiving speedy trial rights is sound trial strategy when made
                                              -7-
                                                                       Warren CA2014-11-135

for the purposes of trial preparation); State v. Bennett, 6th Dist. Wood No. WD-08-005, 2008-

Ohio-5812, ¶ 11 (presuming discovery decisions are trial strategies that do not constitute

ineffective assistance of counsel). Although appellant contends Bastian did not obtain video

footage, the record reflects Bastian pursued additional lines of evidence, and the

continuances and waiver of appellant's speedy trial rights allowed Bastian to prepare for trial.

       {¶ 25} Even if Bastian's conduct fell below an objective standard of reasonableness, it

has not been demonstrated how the speculative video footage or a trial held within a shorter

time frame would have made a significant difference in the trial's outcome, given the

overwhelming evidence against appellant. As such, appellant was not prejudiced by the

performance of his first trial counsel. Appellant's third assignment of error is therefore

overruled.

       {¶ 26} Assignment of Error No. 2:

       {¶ 27} THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT

TO PAY RESTITUTION IN THE AMOUNT OF $4,689.

       {¶ 28} In his second assignment of error, appellant argues the trial court abused its

discretion by ordering him to pay $4,689 in restitution. Specifically, appellant asserts the trial

court erred by ordering him to pay Walker the amount requested in her victim impact

statement of $2,889, and by ordering him to pay restitution in the amount of $1,800 to

Walker's landlord, Brett Clark.

       {¶ 29} In examining the proper standard of review pertaining to restitution as part of a

felony sentence, we note our inconsistent application. Recently, we employed an abuse of

discretion standard in reviewing the imposition of restitution. See State v. Lyons, 12th Dist.

Warren No. CA2013-08-074, 2014-Ohio-2239, ¶ 13; State v. Hatmaker, 12th Dist. Butler No.

CA2012-10-198, 2013-Ohio-3202, ¶ 5; State v. Hipsher, 12th Dist. Warren No. CA2011-12-

128, 2012-Ohio-3206, ¶ 13.
                                               -8-
                                                                                  Warren CA2014-11-135

        {¶ 30} Previously, we had held that pursuant to the felony sentencing appeal statute,

R.C. 2953.08(G)(2), "An appellate court may not modify a financial sanction unless it finds by

clear and convincing evidence that it is not supported by the record or is contrary to law."

State v. Dyer, 12th Dist. Butler No. CA2005-05-109, 2006-Ohio-3537, ¶ 29. See State v.

Kling, 12th Dist. Butler No. CA2003-08-191, 2004-Ohio-3911, ¶ 42; State v. Kelly, 145 Ohio

App.3d 277, 282 (12th Dist.2001); State v. Swart, 12th Dist. Clinton No. CA2000-02-006,

2000 WL 1577297, *4 (Oct. 23, 2000).

        {¶ 31} After reviewing statutory language, we find that employing the standard of

review set forth in R.C. 2953.08(G)(2) best comports with the criminal procedure and felony
                         1
sentencing statutes.         Furthermore, utilizing this standard is consistent with our opinion in

State v. Crawford, where we held that R.C. 2953.08(G)(2) is the proper standard of review for

all felony sentences. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶

6-8. Accordingly, the proper standard of review for analyzing the imposition of restitution as a

part of a felony sentence is whether the sentence complies with R.C. 2953.08(G)(2)(b). See

id.2

        {¶ 32} When imposing restitution, the amount of restitution must bear a reasonable

relationship to the victim's actual loss to comport with due process. State v. Stamper, 12th

Dist. Butler No. CA2009-04-115, 2010-Ohio-1939, ¶ 17; see R.C. 2929.18(A)(1). Thus, the

restitution amount is limited to the actual loss or damage caused by the offender and must be



1. R.C. 2953.08(G)(2)(b) provides, "The appellate court may take any action authorized * * * if it clearly and
convincingly finds either * * * [t]hat the record does not support the sentencing court's findings * * * [or] the
sentence is otherwise contrary to law." Pursuant to R.C. 2929.01(EE), a "sentence" is a "sanction or combination
of sanctions" imposed on an offender by a sentencing court. A financial sanction is included in the definition of
"sanction," and restitution is a form of a financial sanction. R.C. 2929.01(DD); R.C. 2929.18(A)(1).
Consequently, by applying these definitions, the term "sentence" utilized in R.C. 2953.08(G)(2)(b) encompasses
restitution.

2. We recently certified a conflict to the Ohio Supreme Court so it might discuss and pronounce the correct
standard of review. State v. Brandenburg, 12th Dist. Butler Nos. CA2014-10-201 and CA2014-10-202, 2015-
Ohio-2573.
                                                      -9-
                                                                      Warren CA2014-11-135

established to a reasonable degree of certainty. Dyer at ¶ 30.

       {¶ 33} In order to determine the proper amount of restitution, R.C. 2929.18(A)(1)

allows a court to base the restitution order

              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. * * *.

As such, a victim's loss may be supported through documentary evidence or testimony,

including that of the victim. Lyons, 2014-Ohio-2239 at ¶ 14. It is important to recall that

Evid.R. 101(C) suspends the Rules of Evidence in certain proceedings, such as sentencing.

State v. Cook, 83 Ohio St.3d 404, 425 (1998). As a hearing to determine restitution is a part

of sentencing, a court is not restricted by the Rules of Evidence. Lyons at ¶ 12. A victim

impact statement may be used in calculating a restitution amount, but where the amount of

loss referenced in a victim impact statement appears doubtful or uncertain, "documentary or

other corroborating evidence may be required to verify the loss or expense." State v. Griffin,

6th Dist. Lucas No. L-11-1283, 2013-Ohio-411, ¶ 44.

       {¶ 34} In this instance, appellant specifically requested a restitution hearing at the end

of the three-day jury trial. At the restitution hearing, the trial court considered a receipt

showing the amount paid by Clark to repair the damage to his rental property and also

reviewed Walker's victim impact statement listing itemized replacement costs for damage to

her personal property. The receipt and itemized victim impact statement were supported by

testimony of an individual who helps maintain Clark's rental property who observed bullet

holes in both the rental property and much of Walker's personal property. Appellant

contested the cost of replacement or repair to the property and cross-examined the witness

regarding her observations. Although appellant disputed the amount being suggested, the
                                               - 10 -
                                                                        Warren CA2014-11-135

victims provided a receipt and an itemized list supported by testimony of those who observed

the damage caused by bullets. Relying on this information, the trial court ordered a total

restitution amount of $4,689 to be paid jointly and severally by appellant and Weaver.

        {¶ 35} In light of the foregoing, we find the amount of restitution was reasonably

related to the victims' loss and established to a reasonable degree of certainty. As such, the

restitution amount ordered was supported by the record and not contrary to law. Appellant's

second assignment of error is overruled.

        {¶ 36} Assignment of Error No. 1:

        {¶ 37} THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN

ASSESSING RESTITUTION.

        {¶ 38} In his first assignment of error, appellant asserts the trial court's imposition of

restitution was plain error because it failed to consider appellant's ability to pay the amount

ordered. While appellant concedes the trial court made a finding in its judgment entry that

"the Defendant has or is reasonably expected to have the means to pay the financial

sanctions," he nonetheless contends the trial court never considered appellant's ability to

pay. Additionally, appellant argues the record is lacking of any factual support for the trial

court's finding in its entry. Appellant now argues the evidence before the trial court actually

demonstrated his inability to pay restitution as he received appointed counsel due to his

indigence. However, we note appellant did not advance any of these arguments before the

trial court.

        {¶ 39} At no time, neither immediately after the trial, nor at the restitution hearing, did

appellant assert that he had an inability to pay restitution. While appellant requested a

hearing on restitution, at the hearing itself, testimony and evidence were only relevant to the

amount of restitution and not appellant's ability to pay restitution. The parties agree that the

record contains no argument, objection, or proffer indicating appellant could not pay
                                               - 11 -
                                                                        Warren CA2014-11-135

restitution. This being the case, we find appellant forfeited the issue of his ability to pay and

did not preserve the issue for appellate review. See State v. Rogers, Slip Opinion No. 2015-

Ohio-2459, ¶ 22.

       {¶ 40} In Rogers, the Ohio Supreme Court noted in discussing plain error that

"'holdings should foster rather than thwart judicial economy by providing incentives (and not

disincentives) for the defendant to raise all errors in the trial court - where, in many cases,

such errors can be easily corrected.'" Rogers at ¶ 24, quoting State v. Perry, 101 Ohio St.3d

118, 2004-Ohio-297, ¶ 23. In this instance, appellant had ample opportunity to raise the

alleged error before the trial court. Appellant never raised his inability to pay at the end of the

three-day jury trial when he requested a restitution hearing, nor did he raise the issue at the

restitution hearing. In fact, by focusing on the amount of restitution, from the trial court's

perspective, appellant essentially acknowledged he possessed the ability to pay some

restitution and only disagreed as to how much he should be ordered to pay the victims. As

such, the proper standard of review in this instance is plain error. See State v. Wilkins, 3d

Dist. Shelby No. 17-13-13, 2014-Ohio-983, ¶ 8; State v. Bemmes, 1st Dist. Hamilton No. C-

010522, 2002 WL 507337, at * 3 (Apr. 5, 2002). Appellant acknowledges plain error as the

proper standard of review to be applied in his written assignment of error.

       {¶ 41} Crim.R. 52(B) defines plain error as any error or defect "affecting substantial

rights [that] may be noticed although they were not brought to the attention of the court." A

substantial right is implicated when a trial court's error affected the trial's outcome. Rogers at

¶ 22. Even if an error affected the trial's outcome, a reviewing court may find plain error only

using the "utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice." State v. McCollum, 12th Dist. Clermont No. CA2014-11-077, 2015-

Ohio-3286, ¶ 11; Rogers at ¶ 23. The doctrine of plain error also applies to sentencing

issues. See Rogers. "A trial court commits plain error by ordering [an offender] to pay
                                               - 12 -
                                                                                  Warren CA2014-11-135

restitution without first considering his ability to pay." State v. Williams, 9th Dist. Summit No.

26014, 2012-Ohio-5873, ¶ 17. See State v. Moore, 12th Dist. Butler No. CA2006-09-242,

2007-Ohio-3472 (a trial court's failure to consider an offender's present or future ability to pay

a financial sanction rises to the level of plain error as the requirement is legislatively

mandated).3

        {¶ 42} When imposing restitution, R.C. 2929.19(B)(5) provides, "Before imposing a

financial sanction under section 2929.18 of the Revised Code or a fine under section

2929.32 of the Revised Code, the court shall consider the offender's present and future

ability to pay the amount of the sanction or fine." Restitution is a form of a financial sanction.

R.C. 2929.18(A)(1). By mandating the trial court consider the offender's ability to pay, R.C.

2929.19(B)(5) places a narrowly tailored responsibility or mandate upon the trial court to

consider an offender's ability before ordering restitution be paid. See Moore at ¶ 8. While

the trial court must consider the offender's present and future ability to pay, there is no

express evidence which must be considered or weighed. State v. Simms, 12th Dist.

Clermont No. CA2009-02-005, 2009-Ohio-5440, ¶ 9. There are also no specific factors that

must be taken into account or explanations which must be made on the record. Id. R.C.

2929.19(B)(5) does not require the trial court's impressions, observations, or deliberations

regarding an offender's ability to pay restitution be placed on the record. See State v. Fisher,

12th Dist. Butler No. CA98-09-190, 2002-Ohio-2069.

        {¶ 43} Pragmatically, if an offender were to suggest he did not possess the present or

future ability to pay restitution, the trial court would undoubtedly address the issue, giving

explanation of its consideration to the issue. If an offender does not raise the issue of his

inability to pay, any error in not articulating what was considered by the trial court is invited by


3. Contrary to the conclusion of the dissent as to the standard of review, we note the standard of review applied
in Moore was plain error. State v. Moore, 12th Dist. Butler No. CA2006-09-242, 2007-Ohio-3472, ¶ 12.
                                                      - 13 -
                                                                                    Warren CA2014-11-135

the offender. State v. Bey, 85 Ohio St.3d 487, 493 (1999) (holding a party may not take

advantage of an error of which he invited or induced). Here, appellant indicated he wanted a

hearing on restitution, but only contested the amount, not the present or future ability to pay.

        {¶ 44} We emphasize that a court speaks through its judgment entries. State v.

Johnson, 12th Dist. Butler No. CA2012-10-210, 2013-Ohio-2275, ¶ 10. As such, any

responsibility placed upon the trial court by R.C. 2929.19(B)(5) is satisfied "when the trial

court indicates in its judgment entry that it has considered the offender's present and future

ability to pay." 4 (Emphasis added.) State v. Anderson, 172 Ohio App.3d 603, 2007-Ohio-

3849, ¶ 24 (11th Dist.). See Kling, 2004-Ohio-3911, at ¶ 44-45; State v. White, 10th Dist.

Franklin No. 10AP-34, 2011-Ohio-2364, ¶ 78.

        {¶ 45} The text of R.C. 2929.19(B)(5) only requires the trial court consider an

offender's present and future ability to pay a financial sanction.5 In this instance, the trial

court complied with R.C. 2929.19(B)(5) by specifically finding in its judgment entry that

appellant possessed the present or future ability to pay financial sanctions. In order to make

such a finding documented in its journal entry, the trial court obviously relied upon its

collective perceptions and impressions formed throughout the proceedings.6

        {¶ 46} Furthermore, this court, along with other courts, has held there is a distinction



4. We note R.C. 2929.19(B)(5) was formerly R.C. 2929.19(B)(6).

5. We recognize this district and other appellate districts have reviewed presentence investigation reports and
portions of the record to establish the trial court performed the act of considering an offender's ability to pay.
See, e.g., State v. Moore, 12th Dist. Butler No. CA2002-12-307, 2003-Ohio-6255, ¶ 38-39; State v. Alvarez, 3d
Dist. Defiance No. 4-08-02, 2008-Ohio-5189, ¶ 26-28. However, that exercise is generally performed when the
trial court merely ordered restitution without any finding regarding the ability to pay. In those cases, reviewing
courts have looked to the record for facts that justify or support the restitution order. These facts inferentially
establish the trial court must have considered them when making the restitution order whether or not the
determination was included in the judgment entry.

6. In relying on Christman and Robinson, the dissent overlooks the significance of the trial court's judgment entry
that had a finding regarding the ability to pay as an indication the court considered appellant's ability to pay;
neither Christman nor Robinson included a judgment entry where the court made a finding regarding the ability to
pay. State v. Christman, 12th Dist. Preble Nos. CA2009-03-007 and CA2009-03-008, 2009-Ohio-6555, ¶ 21;
State v. Robinson, 3d Dist. Hancock No. 5-04-12, 2004-Ohio-5346.
                                                      - 14 -
                                                                                    Warren CA2014-11-135

between an offender's indigence for the purpose of appointing counsel and an offender's

inability to pay a financial sanction or fine. State v. Johnson, 12th Dist. Butler No. CA2011-

11-212, 2014-Ohio-3776, ¶ 15-16 (finding the fact offender could not afford private counsel at

the time criminal proceedings began did not mean he could not afford to pay a fine at some

point in the future). State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶ 16;

State v. Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 29; State v. Waddell,

4th Dist. Lawrence No. 10CA27, 2011-Ohio-4629, ¶ 8, fn. 2. The fact that appellant received

appointed counsel neither prohibited the trial court from imposing restitution, nor created a

record that failed to support the trial court's finding that appellant had the present or future

ability to pay the financial sanction. In fact, in addition to evidence indicating appellant was

indigent for the purposes of obtaining appointed counsel, the trial court heard evidence at the

trial, observed appellant firsthand, and assessed his demeanor, including his physical and

mental abilities. The trial court had the benefit of seeing and hearing appellant as well as

testimony about appellant from others.7 After making such observations, the trial court found

appellant had the present or future ability to pay financial sanctions as indicated in its

judgment entry.8 As such, no manifest miscarriage of justice occurred rising to the level of

plain error.

        {¶ 47} Even if appellant had argued to the trial court he had an inability to pay, which

would have continued into the future and plain error was inapplicable as our standard of


7. The trial court heard testimony regarding appellant's possession of a semi-automatic handgun, driving a 2007
Ford F-150 truck, as well as testimony from appellant's son establishing appellant's operation of an earlier
business establishment. Appellant addressed the court at sentencing and his counsel represented that appellant
had no prior felony record. Appellant may be the recipient of medical treatment while incarcerated, yet nothing in
the record supports a determination that appellant will not have the future ability to pay restitution.

8. It is the dissent's desire for the plain meaning of the statute to encompass more than that which is expressly
stated. However, an enlargement of the statute is not within our purview, but rather is solely within the
providence of the legislature. See State ex rel. McGraw v. Gorman, 17 Ohio St.3d 147, 149 (1985) (when a
statute is clear and unambiguous, "the statute may not be restricted, constricted, qualified, narrowed, enlarged or
abridged"); see State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584 (1995) ("[i]f the meaning of a statute
is unambiguous and definite, then it must be applied as written and no further interpretation is appropriate").
                                                      - 15 -
                                                                         Warren CA2014-11-135

review, the standard of review contained in R.C. 2953.08(G)(2) is "extremely deferential."

Crawford, 2013-Ohio-3315, at ¶ 8.          It is the court of appeals that must clearly and

convincingly find from the record that the trial court actually did not consider appellant's ability

to pay. Id. We are unpersuaded that there must be a record other than the trial court's

judgment entry indicating the trial court considered the ability to pay. Based on the record,

we cannot clearly and convincingly find the trial court failed to consider appellant's present or

future ability to pay financial sanctions or that such an order was clearly and convincingly

contrary to law. Accordingly, appellant's first assignment of error is overruled.

       {¶ 48} Judgment affirmed.


       S. POWELL, J., concurs.


       M. POWELL, J, concurs in part and dissents in part.


       M. POWELL, J., concurring in part and dissenting in part.

       {¶ 49} I concur with the majority in its resolution of appellant's third and fourth

assignments of error.     As to the first assignment of error, I respectfully dissent from the

majority's opinion that the trial court complied with the legislative mandate of R.C.

2929.19(B)(5) to consider appellant's ability to pay restitution and that the assignment of error

is subject to plain error analysis. For the reasons that follow, I would sustain appellant's first

assignment of error and reverse the trial court’s imposition of restitution. In view of reversal

upon the first assignment of error, I would find the second assignment of error regarding the

amount of restitution moot.

       {¶ 50} Although the majority presents the issue of appellant's ability to pay restitution

as one subject to plain error analysis, plain error is not the proper standard of review in this

instance. Plain error presupposes that an issue has otherwise been forfeited due to a failure


                                               - 16 -
                                                                                       Warren CA2014-11-135

to properly bring the matter to the attention of the trial court in the first instance. This court

and other courts have rejected the application of forfeiture to this precise issue and held that

R.C. 2929.19(B)(5) places an affirmative requirement on the trial court to ascertain an

offender's ability to pay, and as such, the issue of an offender's ability to pay is not subject to

forfeiture. State v. Moore, 12th Dist. Butler No. CA2006-09-242, 2007-Ohio-3472, ¶ 8; State

v. Scott, 6th Dist. Lucas No. L-01-1337, 2003-Ohio-1868. See State v. Slater, 4th Dist.

Scioto No. 01 CA2806, 2002-Ohio-5343, ¶ 10 ("[w]hile criminal defendants may [forfeit] their

own rights, they cannot [forfeit] a mandatory duty imposed on trial courts").9                                Stated

somewhat differently, appellant did not need to bring the matter to the attention of the trial

court as the trial court’s attention is directed to the matter by R.C. 2929.19(B)(5). Therefore,

our proper standard of review is not plain error, but rather whether the ordered restitution is

clearly and convincingly contrary to law. See R.C. 2953.08(G)(2)(b).10

        {¶ 51} By providing in R.C. 2929.19(B)(5) that a sentencing court must consider an

offender's present and future ability to pay a financial sanction, the General Assembly

implicitly required the court to determine the offender has the wherewithal to pay at some

time. Otherwise there would be no reason to consider an offender's ability to pay as a

prerequisite to the imposition of a financial sanction. R.C. 2929.19(B)(5) is meaningless if

interpreted to permit imposition of a financial sanction, without regard to an offender’s ability




9. In State v. Rogers, Slip Opinion No. 2015-Ohio-2459, the Ohio Supreme Court clarified the distinction
between "waiver" and "forfeiture." As "forfeiture" is "the failure to timely assert a right or object to an error," the
proper term to be used in the situations cited in the cases above is "forfeiture" despite the cases utilizing the term
"waiver." In State v. Moore, 12th Dist. Butler No. CA2006-09-242, 2007-Ohio-3472, we addressed the issue as
one of "waiver." In view of the Supreme Court’s opinion in Rogers, it is "forfeiture" as opposed to "waiver" that
was involved.

10. Additionally, appellant requested a hearing on restitution. The record does not reflect whether the hearing
was pursuant to R.C. 2929.18(A)(1) regarding the amount of restitution or pursuant to R.C. 2929.18(E) so that
the trial court could inquire as to appellant’s ability to pay restitution. In any event, the amount of restitution
ordered necessarily implicates an offender’s ability to pay as the wherewithal to pay restitution of $50 is different
than that required to pay $4,000. The fact that appellant requested a hearing is further indication that he did not
forfeit the issue.
                                                        - 17 -
                                                                                 Warren CA2014-11-135

to pay, so long as the sentencing court indicates consideration of the offender’s ability to pay.

In such an instance, consideration of the offender’s ability to pay is of no purpose. The

General Assembly certainly did not intend to impose a duty upon the trial court to perform a

futile act.

        {¶ 52} A trial court does not comply with its duty to consider an offender’s ability to pay

restitution by merely checking a box in the sentencing entry when the record does not reflect

that an offender has the present or future ability to pay a financial sanction. See Moore,

2007-Ohio-3472, ¶ 11. The majority focuses on certain cases that hold where a trial court's

sentencing entry, like here, indicates consideration of an offender's present and future ability

to pay, R.C. 2929.19(B)(5) is satisfied. See State v. Kling, 12th Dist. Butler No. CA2003-08-

191, 2004-Ohio-3911, ¶ 44-45; State v. White, 10th Dist. Franklin No. 10AP-34, 2011-Ohio-

2364, ¶ 78; State v. Anderson, 172 Ohio App.3d 603, 2007-Ohio-3849, ¶ 24 (11th Dist.).

These cases contain little or no discussion of what the record may have indicated regarding

the offender’s ability to pay the financial sanction imposed.11 However, these cases do not

hold that a statement in the sentencing entry that a trial court considered an offender’s ability

to pay supersedes a record that indicates to the contrary. In State v. Christman, 12th Dist.

Preble Nos. CA2009-03-007 and CA2009-03-008, 2009-Ohio-6555, we affirmed the

imposition of restitution despite the omission of a statement in the sentencing entry that the

trial court had considered the offender’s ability to pay. Christman at ¶ 21 ("the trial court did

not expressly state, either at the restitution hearing or in its judgment entries of sentence, that

it considered appellant's ability to pay prior to ordering restitution in both cases. This

omission, however, is not determinative"). In doing so, we recognized the predominance of


11. Anderson discusses that the offender "will be only 28 at the time of his release from imprisonment. If the
remorse he expressed at the sentencing hearing and his determination to fight his alcoholism are genuine, he
should be able to lead a productive life upon release and make the requisite payments." Anderson at ¶ 26.
Neither Kling nor White make any reference to what the record reflects as to the offenders’ ability to pay. See
Kling, at ¶ 44-45; White at ¶ 78.
                                                     - 18 -
                                                                                   Warren CA2014-11-135

the record.      Conversely, an expression of compliance with R.C. 2929.19(B)(5) in a

sentencing entry should not prevail over a record indicating otherwise. As detailed below, the

record here does not reflect that appellant had an ability to pay the ordered restitution.

        {¶ 53} According to the record, there was no presentence investigation report

addressing appellant’s age, health, educational level, skills, experience, or employment.

See, e.g., State v. Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-646, ¶ 68-71;

State v. Simms, 12th Dist. Clermont No. CA2009-02-005, 2009-Ohio-5440, ¶ 10-12.

Although afforded the opportunity, the trial court never inquired of appellant concerning his
                                                                                    12
present or future ability to pay restitution or as to his financial status.              The only information

apparent from the record indicates that appellant is not employed, has no other sources of

income, has no assets, will serve the next three to five years in prison, will emerge a

convicted felon, and suffers from a medical condition that has required several surgeries. The

record further provides that appellant’s former place of business was destroyed by a fire and

the white truck appellant drove in the commission of this offense was being sold to Weaver

by Weaver’s assumption of the payments.

        {¶ 54} The issue presented here was recently considered by the Third District in State

v. Brown, 3d Dist. Seneca No. 13-15-06, 2015-Ohio-3402. In Brown the trial court imposed

restitution in the amount of $10,999 despite the fact that the record disclosed that the 17-

year-old defendant was indigent, had an 11th grade education, no income, no employment

history, and was facing a prison term of 30 years to life. In reversing the sentence as regards

to restitution the court of appeals held

               There is nothing in the record to indicate upon what the trial court
               made the determination that Brown had the ability or would have
               had the ability in the future to pay the restitution ordered prior to

12. In Moore, we reversed the imposition of a financial sanction because the record did not reflect that the trial
court considered the offender’s ability to pay and noted the trial court’s failure to engage in such an inquiry.
Moore, 2007-Ohio-3472 at ¶ 11.
                                                      - 19 -
                                                                                     Warren CA2014-11-135

               imposing it. The trial court did not address the issue in any way
               prior to ordering restitution. * * * Without some evidence in the
               record to support the trial court’s apparent conclusion that Brown
               had or would have the ability to pay restitution, this court must
               reverse the judgment as to restitution for failure to comply with R.C.
               2929.19(B)(5).

Id. ¶ 12.

        {¶ 55} The majority points out that the trial court likely relied upon its observations and

dealings with appellant during the course of the proceedings to determine that appellant had

a present or future ability to pay restitution. This may very well be the case. However, where

a trial court relies upon such information that would otherwise be unapparent in the written

record, the trial court must ensure that the information is made of record in order for a

reviewing court to perform its duty. This is consistent with our precedent that "the record

must contain evidence which establishes that the trial court complied with its duty to make
                                                                                    13
the statutory determination regarding the offender's ability to pay."                    Christman, 2009-Ohio-

6555, at ¶ 20. See also State v. Robinson, 3d Dist. Hancock No. 5-04-12, 2004-Ohio-5346, ¶

17 (as long as the record contains information concerning the defendant’s ability to pay

restitution and supports the trial court’s determination, a hearing is not required). Unless the

record contains information as to an offender’s present or future ability to pay the financial

sanction imposed, we must speculate as to what information the trial court considered and

assume that such information, whatever it may be, supports the trial court’s determination

that the offender has the ability to pay. This renders the matter unreviewable and the right of

appeal upon the issue illusory.

        {¶ 56} As the majority notes, R.C. 2929.19(B)(5) does not require a trial court to

consider or weigh any particular evidence or factors or make any particular explanations,

impressions, observations or deliberations on the record. That the statute does not specify a


13. A trial court’s indication that it considered an offender’s ability to pay is not "evidence."
                                                        - 20 -
                                                                      Warren CA2014-11-135

mode of compliance does not reduce compliance to a pro forma, mechanical exercise. The

trial court must comply with its duty under R.C. 2929.19(B)(5) to consider an offender’s ability

to pay. This statutory mandate requires a trial court to do whatever may be necessary under

the circumstances of the case to demonstrate compliance.

       {¶ 57} In this case, the record does not reflect that the trial court engaged in a

meaningful consideration of appellant’s present or future ability to pay the ordered restitution.

Therefore, the sentence, as regards to the order for restitution, is contrary to law.

Consequently, I would reverse the trial court’s imposition of restitution.

       {¶ 58} With regard and respect for my colleagues in the majority, I dissent.




                                              - 21 -
