[Cite as State v. Price, 2016-Ohio-7633.]




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


State of Ohio                                    Court of Appeals No. L-16-1031

        Appellee                                 Trial Court No. CR0201402776

v.

Oscar Price                                      DECISION AND JUDGMENT

        Appellant                                Decided: November 4, 2016

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, Claudia A. Ford,
        Assistant Prosecuting Attorney, for appellee.

        Steven Casiere, for appellant.

                                            *****

        SINGER, J.

        {¶ 1} Appellant, Oscar Price, appeals the imposition of costs and consecutive

sentences from the January 20, 2016 judgment of the Lucas County Court of Common

Pleas. For reasons that follow, we affirm.
                                   Assignments of Error

       {¶ 2} Appellant sets forth the following assignments of error:

              1. The findings made by the trial court when imposing consecutive

       sentences were not supported by the record.

              2. The trial court erred in ordering Appellant to pay costs for

       confinement and assigned counsel fees.

                                     Background Facts

       {¶ 3} In August 2014, police received a tip appellant was trafficking in drugs. The

police conducted surveillance and arrested appellant for the trafficking.

       {¶ 4} On November 6, 2014, the Lucas County Grand Jury indicted appellant and

he was charged with trafficking heroin, cocaine, and marijuana, all felonies of the fourth

degree, and with possession of heroin and cocaine, felonies of the fifth degree.

       {¶ 5} On January 26, 2015, appellant entered an Alford plea to trafficking heroin

and to amended charges for trafficking cocaine and marijuana. The amended charges

were made fifth degree felonies and the possession charges were dismissed.

       {¶ 6} At the plea hearing, the trial court informed appellant of consequences

resulting from his plea. Specifically, the court informed appellant of “the potential of

running the sentences consecutive[,]” and of the potential 42-month prison term.

Appellant was also informed, among others, that his plea triggered a violation of his

probation, of his waiver of right to jury, and of his right to appeal.




2.
       {¶ 7} On February 11, 2015, appellant was sentenced to 17 months for trafficking

heroin and 11 months for both the amended trafficking cocaine and marijuana charges.

Appellant’s sentences were set to run consecutively.

       {¶ 8} Appellant timely appealed the February 11, 2015 judgment, asserting a sole

assignment of error that the trial court erred in imposing consecutive sentences.

Appellant did not, however, appeal the imposition of court costs and the cost of

confinement.

       {¶ 9} On November 17, 2015, this court vacated the sentence and remanded this

matter for resentencing because the trial court failed to make the required findings under

R.C. 2929.14(C)(4). The resentencing was not a do novo sentencing and the scope of

remand was limited to make findings as to whether the imposition of consecutive

sentences was necessary to protect the public from future harm or to punish appellant.

       {¶ 10} On January 15, 2016, appellant was resentenced. The trial court imposed

the same sentence as was imposed February 11, 2015. The sentence was journalized

January 20, 2016.

       {¶ 11} On February 17, 2016, appellant filed a notice of appeal. He now

challenges the consecutive sentences and imposition of costs from the January 20, 2016

judgment.

                                Assignment of Error No. 1

       {¶ 12} In the first assignment of error, appellant argues the trial court erred in

imposing consecutive sentences because the record does not support the sentences were



3.
necessary to protect the public from future harm or to punish the offender. Appellee

contends the record supports imposing consecutive sentences because the trial court made

necessary findings under R.C. 2929.14(C)(4) and engaged in the appropriate analysis.

       {¶ 13} An appellate court reviews consecutive sentences using the standard set

forth in R.C. 2953.08. See State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-

1000, ¶ 10. Pursuant to R.C. 2953.08, “[a]n appellate court may vacate or modify a

felony sentence on appeal only if it determines by clear and convincing evidence that the

record does not support the trial court’s findings under relevant statutes or that the

sentence is otherwise contrary to law.” State v. Marcum, Slip Opinion No. 2016-Ohio-

1002, ¶ 23.

       {¶ 14} R.C. 2929.14(C)(4) requires the court to make three findings: (1)

consecutive sentences are necessary to protect the public from future harm or to punish

the offender, (2) consecutive sentences are not disproportionate to the seriousness of the

offense, and (3) one of the conditions in R.C. 2929.14(C)(4)(a)-(c) exists. See State v.

Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437, ¶ 10.

       {¶ 15} The trial court is not required to state specific words or phrases when the

record reveals the trial court engaged in the appropriate analysis. Jude at ¶ 7, citing State

v. Wright, 6th Dist. Lucas No. L-13-1058, 2013-Ohio-5903, ¶ 33. The findings required

under R.C. 2929.14(C)(4) must be made in the sentencing entry and supported by the

record. Jude at ¶ 10.




4.
       {¶ 16} Here, appellant concedes R.C. 2929.14(C)(4) was complied with aside

from the trial court failing to show consecutive sentences were “necessary to protect the

public from future harm or to punish the offender.” See R.C. 2929.14(C)(4).

                              Findings Made at Sentencing

       {¶ 17} At the January 15, 2016 hearing and in the January 20, 2016 entry, the trial

court stated consecutive sentences were necessary to both protect the public from future

crime and punish appellant. Specifically, at the January 15 sentencing hearing, the trial

court pertinently stated:

              Court continues to be persuaded that defendant is not amenable to

       community control and that prison is consistent with the purposes of the

       sentencing statute. It’s hereby ordered the defendant serve a term of 17

       months as to Count 1, 11 months as to Count 5, and 11 months as to Count

       3. The sentences are ordered to be served consecutive to one another.

       Consecutive sentences being necessary to fulfill the purpose of Revised

       Code 2929.11 and 2929.14(E) (sic) and not disproportionate to the

       seriousness of the offender’s conduct or the danger the offender poses. The

       court further finds to protect the public from future crime and/or punish this

       offender, the defendant in this particular case was under community control

       when the offense was committed and the defendant’s criminal history

       requires consecutive sentences[.]

In the January 20 journal entry, the court pertinently stated:



5.
              Being necessary to fulfill the purposes of R.C. 2929.11 and

       2929.14(C)(4), consecutive sentences are necessary to protect the public

       from future crime or to punish the offender and are not disproportionate to

       the seriousness of the offender’s conduct and to the danger the offender

       poses to the public. The court further finds the defendant was on

       community control, the harm was great or unusual such that no single

       prison term is adequate, and the defendant’s criminal history demonstrates

       that consecutive sentences are necessary to protect the public, therefore the

       sentences are ordered to be served consecutively.

       {¶ 18} Consequently, the record supports the trial court made the necessary

findings under R.C. 2929.14(C)(4).

       {¶ 19} Moreover, the record reveals appellant had a lengthy criminal history,

which included being charged with over 40 misdemeanors and 4 felonies, the fact that

trafficking for which appellant was accused allegedly occurred within 1000 feet of a

school, and appellant violated a community control sanction when his plea was accepted

by the trial court. Therefore, the trial court did not err in imposing consecutive sentences,

as the necessary findings were made and the record reveals the appropriate analysis

occurred.

       {¶ 20} Accordingly, appellant’s first assignment of error is not well taken.




6.
                                Assignment of Error No. 2
       {¶ 21} In the second assignment of error, appellant argues the trial court erred by

imposing costs of attorney fees and confinement without considering his present and

future ability to pay. Appellee contends the trial court did not err because the record

indicates the trial court properly addressed and considered appellant’s ability to pay.

       {¶ 22} “R.C. 2929.18(A)(5)(a)(ii) requires that the trial court impose against all

convicted defendants a financial sanction for the costs of confinement in a state

institution to the extent he is able to pay.” State v. Tebary, 6th Dist. Lucas No. L-15-

1235, 2016-Ohio-3095, ¶ 12. “Likewise, R.C. 2941.51(D) provides that the cost of

appointed counsel must be paid by the county as approved by the court.” Id.

       {¶ 23} “The court can order the defendant to pay all or a part of the cost of

appointed counsel but only if the court determines that the offender has, or reasonably

may be expected to have, the means to meet some part of the costs of the services

rendered.” (Quotations omitted.) Id.

                             Res Judicata and Void Aspects

       {¶ 24} “It is a longstanding principle that an offender’s sentence that does not

properly include a statutorily mandated term is contrary to law.” See State v. Moore, 135

Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 14, citing Colegrove v. Burns, 175

Ohio St. 437, 195 N.E.2d 811 (1964).




7.
       {¶ 25} Failure to consider an offender’s ability to pay is a void aspect of a

sentence which requires resentencing. See Moore at ¶ 13-14, citing State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.

       {¶ 26} Without timely appeal, only void aspects of a sentence can be challenged

because “[t]he remainder of the sentence, which the defendant did not successfully

challenge, remains valid under the principles of res judicata.” Fischer at ¶ 17.

       {¶ 27} Here, appellant challenged his consecutive sentences but failed to challenge

costs in his July 2015 direct appeal. Therefore, the scope of his January 2016

resentencing was limited to addressing the imposition of consecutive sentences

successfully challenged on direct appeal. Thus, appellant can only challenge void aspects

of his February 11, 2015 sentence.

       {¶ 28} Of the costs he now challenges, only failure to properly address mandatory

cost of confinement, which is mandated under R.C. 2929.18(A), has been deemed a void

aspect by the Supreme Court of Ohio. See Moore at ¶ 17.

       {¶ 29} Accordingly, appellant can only challenge cost of confinement because his

challenge to cost of appointed counsel is barred res judicata.

                                   Cost of Confinement

       {¶ 30} R.C. 2929.18(A)(5)(a)(ii) specifically states the cost of confinement “shall

not exceed the total amount of reimbursement the offender is able to pay as determined at

a hearing and shall not exceed the actual cost of the confinement.”




8.
       {¶ 31} “[W]hile a sentencing court is not required to hold a hearing when

determining whether to impose a financial sanction under this provision, the record must

contain some evidence that the court considered the offender’s ability to pay such a

sanction.” State v. Bowman, 6th Dist. Lucas No. L-11-1300, 2014-Ohio-3851, ¶ 34.

       {¶ 32} For example, in State v. Hocker, 7th Dist. Belmont No. 12 BE 31, 2013-

Ohio-5522, the appellate court vacated a portion of a sentencing entry which imposed

cost of confinement and remanded for a determination of the offender’s ability to pay.

The record contained no statements the offender’s ability to pay was considered prior to

imposing the cost. Id. at ¶ 20. Specifically, the prosecution did not address it below, the

sentencing entry contained no language referencing it, and the sentencing hearing

transcript did not reflect the court addressed it in open court. Id.

       {¶ 33} Contrary to Hocker, the record here reflects the offender’s ability to pay

was considered prior to imposing the cost of confinement.

       {¶ 34} At the February 11, 2015 hearing, the court stated: “Defendant is found to

have or reasonably may be expected to have the means to pay all or part of the applicable

costs of supervision, confinement assigned counsel as authorized by law, and you’re

ordered to reimburse the State of Ohio and Lucas County for such costs.”

       {¶ 35} The February 2015 sentencing entry also stated: “Defendant found to have,

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. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs.”



9.
       {¶ 36} Therefore, the record contains evidence the trial court properly considered

and addressed the offender’s ability to pay the cost of confinement sanction, and further

challenge is barred by res judicata.

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

                                       Conclusion

       {¶ 38} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay costs of this appeal pursuant to App.R.24.

                                                                      Judgment affirmed.

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




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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