[Cite as State v. Lincoln, 2016-Ohio-1274.]




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


State of Ohio                                     Court of Appeals No. L-15-1080

        Appellee                                  Trial Court No. CR0201402567

v.

Desiree Lincoln                                   DECISION AND JUDGMENT

        Appellant                                 Decided: March 25, 2016

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Jennifer M. Lambdin, Assistant Prosecuting Attorney, for appellee.

        Daniel C. Arnold, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} Appellant, Desiree Lincoln, appeals the judgment of the Lucas County Court

of Common Pleas sentencing her to a nine-year term of mandatory incarceration and

imposing financial sanctions. For the reasons that follow, we affirm, in part, and reverse,

in part.

        {¶ 2} Appellant asserts two assignments of error:
              I. The trial court committed plain error to the prejudice of Appellant

       at sentencing by imposing financial sanctions without consideration of

       Appellant’s present or future ability to pay.

              II. The trial court abused its discretion when it sentenced Appellant

       to a nine year term of mandatory incarceration.

                                      I. Background

       {¶ 3} On September 30, 2014, appellant was indicted on two counts of rape, in

violation of R.C. 2907.02(A)(1)(b) and (B), first degree felonies, with a sanction of life

imprisonment. Appellant entered a plea of not guilty by reason of insanity and moved for

an evaluation of her competency to stand trial.

       {¶ 4} After receiving the Court Diagnostic and Treatment Center (“CDTC”)

reports, the trial court found appellant competent to stand trial. Appellant changed her

plea to not guilty.

       {¶ 5} On February 18, 2015, a bill of information was filed charging appellant

with an additional count of rape, in violation of R.C. 2907.02(A)(2) and (B), a first

degree felony, with a prison sentence of three to eleven years. Appellant withdrew her

previous plea of not guilty and tendered a plea of guilty to the information. The trial

court accepted appellant’s plea and found her guilty. The two counts of the indictment

were dismissed. Appellant was referred for a presentence investigation and report

(“PSI”).




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       {¶ 6} At appellant’s sentencing hearing on March 13, 2015, appellant, her counsel,

the prosecutor, and the victim’s mother had an opportunity to address the court. The trial

court stated it reviewed the letters submitted on appellant’s behalf, as well as the letters

from the victim’s mother, the CDTC reports and “the record, oral statements, victim

impact statements and PSI, as well as the overriding principles of sentencing under

2929.11, and the seriousness, recidivism and other factors under 2929.12.” The court

then sentenced appellant to nine years of mandatory incarceration and five years of

mandatory postrelease control and ordered her to register as a Tier III sex offender. In

addition, the trial court found appellant had “or reasonably may be expected to have, the

means to pay all or part of the applicable costs of supervision, confinement, assigned

counsel, and prosecution as authorized by law[,]” and ordered appellant to pay these

costs. Appellant timely appealed.

                              II. First Assignment of Error

       {¶ 7} Appellant contends the trial court committed plain error by imposing

financial sanctions without consideration of her present or future ability to pay.

Appellant concedes she did not object to the trial court’s imposition of costs. In support

of her argument, appellant cites to R.C. 2929.18(E), which provides the trial court that

“imposes financial sanction upon an offender may hold a hearing if necessary to

determine whether the offender is able to pay the sanction or is likely in the future to be

able to pay it.” Appellant acknowledges that a hearing is not required, however, she

argues the trial court’s record “must [contain] some evidence * * * that the court




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considered the offender’s present and future ability to pay the sanction imposed.” State v.

Holmes, 6th Dist. Lucas No. L-01-1459, 2002-Ohio-6185, ¶ 20-21.

       {¶ 8} Appellee counters the record contains evidence that the trial court examined

appellant’s present and future ability to pay the costs and fines. The trial court, appellee

highlights, found appellant was only 20 years old at the time of sentencing, could read

and write the English language, and did not have any physical issues.

       {¶ 9} An appellate court need not consider an error which was not called to the

trial court’s attention when the error could have been avoided or corrected by the trial

court. State v. Carter, 89 Ohio St.3d 593, 598, 734 N.E.2d 345 (2000). Therefore, the

error is waived absent plain error. Id. “Plain error does not exist unless it can be said

that but for the error, the outcome of the trial would clearly have been otherwise.” State

v. Wogenstahl, 75 Ohio St.3d 344, 357, 662 N.E.2d 311 (1996).

       {¶ 10} Here, the trial court ordered appellant to pay the costs of prosecution,

supervision, confinement and assigned counsel.

                        A. Costs of Prosecution and Supervision

       {¶ 11} R.C. 2947.23(A)(1) provides “[i]n all criminal cases * * * the judge or

magistrate shall include in the sentence the costs of prosecution.” Costs of prosecution

mean court costs in a criminal case and are “‘those [expenses] directly related to the court

proceedings * * *.’” State v. Perz, 173 Ohio App.3d 99, 2007-Ohio-3962, 877 N.E.2d

702, ¶ 36 (6th Dist.), quoting State v. Christy, 3d Dist. Wyandot No. 16-04-04, 2004-

Ohio-6963, ¶ 22. Imposition of the costs of prosecution is not conditioned on an




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offender’s ability to pay. State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871

N.E.2d 589, ¶ 3.

         {¶ 12} R.C. 2929.18(A)(5)(a)(i) authorizes the trial court to order an offender to

reimburse the state for all or part of the costs of supervision. The statute does not require

that the trial court determine whether the offender has the ability to pay supervision costs

before imposing them. State v. Baughman, 6th Dist. Lucas No. L-11-1045, 2012-Ohio-

5327, ¶ 42.

         {¶ 13} Since there is no requirement for the trial court to consider appellant’s

ability to pay when imposing the costs of prosecution and supervision, it was not plain

error for the trial court to order appellant to pay these costs.

                      B. Costs of Confinement and Assigned Counsel

         {¶ 14} R.C. 2929.18(A)(5)(a)(ii) permits a trial court to impose all or part of the

costs of confinement on an offender, and R.C. 2941.51(D) mandates an offender pay

some or all of the costs of assigned counsel. However, before the costs of confinement

and court-appointed counsel are imposed on an offender, the trial court must find that the

offender has the ability to pay, and that finding must be supported by clear and

convincing evidence in the record. State v. Jobe, 6th Dist. Lucas No. L-07-1413, 2009-

Ohio-4066, ¶ 80; State v. Knight, 6th Dist. Sandusky No. S-05-007, 2006-Ohio-4807,

¶ 6-7.

         Clear and convincing evidence is that measure or degree of proof which is

         more than a mere “preponderance of the evidence,” but not to the extent of




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       such certainty as is required “beyond a reasonable doubt” in criminal cases,

       and which will produce in the mind of the trier of facts a firm belief or

       conviction as to the facts sought to be established. Cross v. Ledford, 161

       Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

       {¶ 15} This court has addressed the issue of a defendant’s ability to pay costs in

numerous cases in the past.

       {¶ 16} In Jobe, we found no affirmative evidence of defendant’s ability to pay the

costs of confinement and court-appointed counsel where the information in the record

showed defendant was 15 years old, had an eighth-grade education and no GED, had

never held a job and was to be incarcerated for a minimum of 18 years. Id. at ¶ 74, 82.

       {¶ 17} In State v. Donaldson, 6th Dist. Lucas No. L-11-1264, 2012-Ohio-6064,

¶ 4, defendant was convicted of robbery and was sentenced to five years in prison and

ordered to pay costs. The record showed defendant, who was 41 years old, had a tenth

grade level of education, an employment history and a history of substance abuse. Id. at

¶ 31. We found “[w]ith his age and prior work history * * * there is reason to believe

Donaldson will be able to pay the costs of confinement and court-appointed attorney

fees.” Id.

       {¶ 18} In State v. Gibson, 6th Dist. Lucas No. L-14-1162, 2015-Ohio-3613, ¶ 2-3,

defendant was convicted of two counts of felonious assault and was sentenced to 17 years

in prison, and was ordered to pay costs. Despite the fact that defendant was 42 years old

at the time of sentencing, had received his GED while incarcerated and had no health or




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medical issues, we determined he did not have the ability to pay the cost of appointed

counsel, as the record showed he had a lengthy criminal record, he received social

security disability benefits likely due to his mental health diagnoses and he had no work

history. Id. at ¶ 11-12.

       {¶ 19} Here, the trial court concluded appellant has, or may be expected to have,

the means to pay all or part of the imposed costs. Before sentencing appellant, the trial

court noted it reviewed the PSI and the CDTC reports which contained information

regarding appellant’s living arrangements, family history, criminal record, education,

lack of employment history, and physical and mental health.

       {¶ 20} Our review of the record shows appellant was 20 years old at the time of

sentencing and had a two-month-old infant. She had attended Life Skills for

approximately two years and completed the tenth grade, but did not have a high school

diploma or GED. Appellant reported she had been sexually abused as a child, and was

diagnosed with depression and attention deficit hyperactivity disorder. Appellant had no

physical ailments. Although appellant could read and write English, she was functioning

within the range of mild mental retardation to borderline intelligence. Appellant’s

criminal history included two misdemeanor convictions, one for disorderly conduct, in

August 2013, and another for unauthorized use of property, in November 2013.

Appellant had no history of drug or alcohol abuse. Regarding employment, appellant

volunteered at the Mud Hens through school, but never had a paying job. Prior to her

arrest, appellant lived in an apartment paid for by relatives and received food stamps.




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       {¶ 21} Since the only evidence in the record concerning appellant’s financial

situation was that she never held a job, she lived in an apartment paid for by family and

she received food stamps, we conclude the trial court’s finding that appellant had or may

be expected to have the means to pay the costs of confinement and appointed counsel is

not supported by clear and convincing evidence. Therefore, it was plain error for the trial

court to order appellant to pay these costs. Accordingly, appellant’s first assignment of

error is not well-taken with regard to the costs of prosecution and supervision, but is well-

taken with regard to the costs of confinement and appointed counsel.

                            III. Second Assignment of Error

       {¶ 22} In the second assignment of error, appellant asserts the trial court abused its

discretion when it sentenced her to a nine-year term of mandatory incarceration, as the

court did not appropriately weigh the factors in R.C. 2929.12.

       {¶ 23} The standard of appellate review of felony sentences is set forth in R.C.

2953.08, and this court outlined that standard of review in State v. Tammerine, 6th Dist.

Lucas No. L-13-1081, 2014-Ohio-425. Our review of a felony sentence is limited to

determining whether there is clear and convincing evidence to support the trial court’s

findings and whether the sentence is contrary to law. Id. at ¶ 11.

       {¶ 24} Here, the record shows the nine-year sentence imposed by the trial court for

the first degree felony to which appellant pled was within the statutory range of three to

eleven years. R.C. 2929.14(A)(1). All nine years of appellant’s sentence are mandatory

pursuant to R.C. 2929.13(F)(2). In imposing sentence, the trial court considered the




8.
principles and purposes of sentencing under R.C. 2929.11 and balanced the seriousness

and recidivism factors under R.C. 2929.12. The court also reviewed and considered the

PSI, the CDTC reports, letters submitted on behalf of appellant and the victim impact

statement which detailed the relationship between appellant and the victim, the duration

of the offenses and the victim’s psychological and physical health after the rapes.

       {¶ 25} We have examined the evidence in the record and conclude there is clear

and convincing evidence to support the trial court’s findings. We further find the

sentence imposed by the trial court is not contrary to law. Accordingly, appellant’s

second assignment of error is not well-taken.

       {¶ 26} The judgment of the Lucas County Court of Common Pleas is affirmed, in

part, and reversed, in part. Appellant and appellee are each ordered to pay one-half of the

costs of this appeal pursuant to App.R. 24.


                                                                Judgment affirmed, in part,
                                                                     and reversed, in part.




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




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                                                                     State v. Lincoln
                                                                     C.A. No. L-15-1080




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
James D. Jensen, 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.sconet.state.oh.us/rod/newpdf/?source=6.




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