[Cite as Maumee v. Hensley, 2019-Ohio-2050.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


State of Ohio/City of Maumee                       Court of Appeals No. L-18-1205

        Appellee                                   Trial Court No. 16CRB00391
                                                                   16CRB00914 A&B
v.                                                                 16CRB00992
                                                                   16CRB01030
Ronald D. Hensley                                                  17CRB00038
                                                                   17CRB00949
        Appellant                                                  17CRB01054
                                                                   17CRB01067 A&B
                                                                   18CRB00017

                                                   DECISION AND JUDGMENT

                                                   Decided: May 24, 2019

                                               *****

        John B. Arnsby, Municipal Prosecutor, City of Maumee, for appellee.

        Karin L. Coble, for appellant.

                                               *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Ronald Hensley, appeals the Maumee Municipal Court’s

consolidated judgment of his misdemeanor convictions. For the reasons that follow, we

reverse.
                            I. Facts and Procedural Background

         {¶ 2} On March 1, 2018, appellant entered pleas of guilty to five charges of petty

theft, and admitted to violating his probation in six other cases.1 On March 22, 2018, the

trial court sentenced appellant to serve 180 days in jail, and imposed a $100 fine plus

court costs, on each of the charges of petty theft. The trial court also imposed the

remaining jail sentence in each of the cases for which he was on probation, resulting in

sentences of 13 days, 43 days, 13 days, 43 days, 118 days, and 118 days respectively.

The trial court then ordered all of the sentences to be served consecutively, for a total jail

term of 1,248 days.

                                  II. Assignments of Error

         {¶ 3} Appellant has timely appealed the consolidated judgments of the trial court,

and now asserts three assignments of error for our review:




1
    The following cases are the subjects of this appeal:

         Case No. 17CRB00949, petty theft;
         Case No. 17CRB01067(A), petty theft;
         Case No. 17CRB01067(B), petty theft;
         Case No. 17CRB01054, petty theft;
         Case No. 18CRB00017, petty theft;
         Case No. 16CRB00391, probation violation
         Case No. 16CRB00914(A), probation violation
         Case No. 16CRB00914(B), probation violation
         Case No. 17CRB00038, probation violation
         Case No. 16CRB01030, probation violation
         Case No. 16CRB00992, probation violation




2.
             1. Hensley’s sentence of 1,248 days of incarceration for petty theft

      convictions is contrary to law and an abuse of discretion.

             2. The fine of $500 for petty theft is excessive and an abuse of

      discretion when appellant is indigent and homeless.

             3. Trial counsel rendered ineffective assistance of counsel by failing

      to object to the sentence and the fines and costs imposed.

                                       III. Analysis

      {¶ 4} We review misdemeanor sentences for an abuse of discretion. State / Div. of

Wildlife v. Coll, 2017-Ohio-7270, 96 N.E.3d 947, ¶ 23 (6th Dist.).

      {¶ 5} In his first assignment of error, appellant argues that the trial court abused its

discretion when it sentenced him to 1,248 days in jail in contravention of R.C.

2929.41(B)(1), which provides, in pertinent part, “When consecutive sentences are

imposed for misdemeanor under this division, the term to be served is the aggregate of

the consecutive terms imposed, except that the aggregate term to be served shall not

exceed eighteen months.” (Emphasis added.). The state concedes error in this regard.

      {¶ 6} In State v. Kesterson, 91 Ohio App.3d 263, 632 N.E.2d 565 (6th Dist.1993),

we encountered a similar situation where the defendant was sentenced to an aggregate jail

term for misdemeanor offenses in excess of 18 months. In that case, we held that while

the sentence was in violation of the 18-month maximum set forth in former R.C.

2929.41(E)(3), any error was harmless because former R.C. 2929.41(E)(3) was self-

executing, and thus the defendant’s sentence would be automatically limited to 18




3.
months. Kesterson at 265. Therefore, we stated that “we need take no action on this

error beyond declaring appellant’s rights.” Id. at 264.

       {¶ 7} Appellant and the state now urge this court to overrule our decision in

Kesterson, and instead follow the rationale applied in State v. Cooper, 11th Dist.

Ashtabula Nos. 2015-A-0042, 2015-A-0043, 2015-A-0044, 2015-A-0045, 2016-Ohio-

4730, ¶ 18-21, in which the Eleventh District criticized Kesterson, and asserted that the

imposition of a sentence that is contrary to law is not harmless, and is an error that must

be corrected. Further supporting its position, the court in Cooper reasoned that appellate

courts do not have the authority to enter a “declaration of rights” as a remedy for a

sentencing error, but rather appellate jurisdiction is constitutionally limited “as may be

provided by law to review and affirm, modify, or reverse judgments or final orders of the

courts of record inferior to the court of appeals.” Id. at ¶ 20, quoting Ohio Constitution,

Article IV, Section 3(B)(2).

       {¶ 8} Upon careful consideration, we agree with the parties that correcting the

error on appeal is the clearest way to resolve any misdemeanor sentences that violate the

18-month maximum term, and is most consistent with our constitutionally defined

jurisdictional authority to “review and affirm, modify, or reverse judgments.” Therefore,

we overrule Kesterson, and hold that the remedy for a misdemeanor sentence that

exceeds the 18-month maximum set forth in R.C. 2929.41(B)(1) is not to declare the

defendant’s rights, but rather to correct the sentence either through our own authority




4.
under Article IV, Section 3(B)(2) of the Ohio Constitution and App.R. 12(A)(1)(a), or by

remanding the matter to the trial court for resentencing.

       {¶ 9} Accordingly, appellant’s first assignment of error is well-taken.

       {¶ 10} In his second assignment of error, appellant argues that the trial court

abused its discretion when it imposed a cumulative fine of $500 and court costs. In

particular, appellant argues that the trial court should have considered that appellant was

homeless, suffering from mental and physical health issues, and has been drug dependent

for decades, and thus was unable to pay the financial sanction.

       {¶ 11} As to the order of fines and costs, R.C. 2929.28(A)(2)(a)(i) authorizes the

trial court to impose a fine of not more than $1,000 for a misdemeanor of the first degree,

and R.C. 2947.23 requires that in all criminal cases, the trial court shall include in the

sentence the costs of prosecution. However, R.C. 2929.28(B) provides, “If the court

determines a hearing is necessary, the court may hold a hearing to determine whether the

offender is able to pay the financial sanction imposed pursuant to this section or court

costs or is likely in the future to be able to pay the sanction or costs.” If the offender is

determined to be unable to pay, the trial court shall consider whether to impose

community service in lieu of the fine or court costs. Id.

       {¶ 12} Notably, “the imposition of court costs is mandatory, and the trial court is not

required to hold a hearing or otherwise determine appellant’s ability to pay before ordering

him to pay costs.” State v. Rush, 6th Dist. Fulton Nos. F-12-011, F-12-014, 2013-Ohio-

727, ¶ 11, citing State v. Rhoda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 13.




5.
Regarding the fine, “Ohio courts have interpreted R.C. 2929.28(B) to mean that a hearing

to determine ability to pay is not required; however, there must, at minimum, ‘be some

evidence in the record that the court considered the defendant’s present and future ability to

pay the sanction imposed.’” Rhoda at ¶ 15, quoting State v. Reigsecker, 6th Dist. Fulton

No. F-03-022, 2004-Ohio-3808, ¶ 11.

       {¶ 13} Here, the record is devoid of any indication that the trial court considered

appellant’s present and future ability to pay before imposing the fines. During the

sentencing hearing, appellant stated that he had been homeless, was suffering from

physical and mental health issues, and had been drug dependent for decades. There was

no other discussion during sentencing regarding appellant’s education, employment

history, ability to work, or alternative sources of income. We note that, in prior

presentence investigation reports that were included with the probation files, it is reported

that appellant received his GED in 1996, but the only record of employment was for a

few weeks in 2014. A September 2014 report asserts that appellant began receiving $721

per month in social security benefits in July 2014, and that he also received $177 per

month in food stamps. However, an April 12, 2017 report concludes that appellant will

never pay restitution to his victims from prior cases, and relays that appellant is $21,000

behind on county property taxes. Nevertheless, the trial court did not state that it

considered those reports at the sentencing hearing. Nor did the trial court state that it

considered those reports in its judgment entries, instead indicating that it reviewed “the

complete record check” and considered “all factors mandated by statute and rule.”




6.
Therefore, we hold that the trial court abused its discretion when it ordered appellant to

pay a total of $500 in fines without first considering appellant’s present or future ability

to pay.

          {¶ 14} Accordingly, appellant’s second assignment of error is well-taken.

          {¶ 15} Finally, in his third assignment of error, appellant argues that his trial

counsel was ineffective for failing to object to a sentence that exceeded 18 months and

for failing to request a waiver of fines and costs. Because we held in appellant’s first and

second assignments of error that the trial court erred in its imposition of the jail sentence

and fines, respectively, we find appellant’s third assignment of error to be moot.

          {¶ 16} Accordingly, appellant’s third assignment of error is not well-taken.

                                         IV. Conclusion

          {¶ 17} For the foregoing reasons, we find that substantial justice has not been done

the party complaining, and the judgment of the Maumee Municipal Court is reversed.

The matter is remanded to the trial court for resentencing consistent with this decision.

The state is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                             Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




7.
                                                                     State v. Hensley
                                                                     C.A. No. L-18-1205




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
Christine E. Mayle, P.J.                                  JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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