[Cite as State v. Snuggs, 2016-Ohio-5466.]


                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY



STATE OF OHIO,
                                                          CASE NO. 7-16-03
       PLAINTIFF-APPELLEE,

      v.

MARK R. SNUGGS,                                           OPINION

       DEFENDANT-APPELLANT.


STATE OF OHIO,
                                                          CASE NO. 7-16-05
       PLAINTIFF-APPELLEE,

      v.

MARK R. SNUGGS,                                           OPINION

       DEFENDANT-APPELLANT.


                 Appeals from Henry County Common Pleas Court
                            Trial Court No. 14CR0027

                                     Judgments Affirmed

                            Date of Decision: August 22, 2016



APPEARANCES:

        Mark R. Snuggs, Appellant
Case No. 7-16-03 and 7-16-05

WILLAMOWSKI, J.

       {¶1} Defendant-appellant Mark R. Snuggs (“Snuggs”) brings these appeals

from judgments of the Court of Common Pleas of Henry County denying his

motion to correct a void or voidable sentence and denying his motion to vacate or

suspend payment of court costs and fines. For the reasons set forth below, the

judgments are affirmed.

       {¶2} On April 10, 2014, a forty-four count indictment was filed. Doc. 1.

Pursuant to a plea agreement, Snuggs entered pleas of guilty to counts one through

four, counts 28-31, and counts 41-44. Doc. 33. All of these were charges of

sexual battery in violation of R.C. 2907.03(A)(5) and were felonies of the third

degree. In exchange, the State agreed to dismiss the remaining counts. Doc. 34.

The parties jointly recommended a sentence “of three (3) years on Counts 1, 2, 3,

4, 28, 29, 30, 31, 41, 42, and 42, all to be served consecutively to each other and

two (2) years on Count 44 to be served consecutively to all other counts for a total

of thirty-five (35) years in prison.” Doc. 33. A change of plea and sentencing

hearing was held on October 9, 2014. Doc. 34.          Snuggs indicated to the trial

court that he had completed 14 years of education. Tr. 3. At the hearing, the trial

court engaged in the following dialogue with Snuggs.

       The Court: You’ve read over the plea agreement, you’ve gone
       over that? You were able to read that and comprehend that?

       Mr. Snuggs: Yes, my lawyer went over it with me.

       The Court: Okay. Are you currently on any medication?


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Case No. 7-16-03 and 7-16-05

      Mr. Snuggs: Yes.

      The Court: What’s the nature of your medication? Does it
      inhibit your ability to understand things at all?

      Mr. Snuggs: I don’t believe so.

      The Court: Other than the recommendation from the State with
      regard to the proposed sentence has anyone promised you
      anything to plead today?

      Mr. Snuggs: Nothing other than what’s in there.

      ***

      The Court: All of [the charges in the indictment to which
      Snuggs was pleading] do carry with it a maximum penalty of up
      to five years and whatever term that the Court would impose
      would become mandatory so if you had or were pleading to
      twelve counts that could be a total of 60 years.

      Mr. Hanna: Can we approach a minute Your Honor?

      The Court: Yes. (Discussion at bench) It would be, there, I
      stand corrected with regard to the time, the time is not
      mandatory, there would be a total, but the Court could impose a
      maximum term of up to sixty years. There is a fine on a felony
      three of $10,000 so it could be up to $120,000 in fines and there is
      a classification of a Tier III sex offender, which is a lifetime
      requirement to verify your address every ninety days with the
      county sheriff in the county that you reside. Those are the
      potential penalties associated with the particular charges we are
      dealing with today. And you understand those penalties?

      Mr. Snuggs: yes.

      The Court: Now, you’ve had discussions with your attorney,
      Mr. Schierloh?

      Mr. Snuggs: Yes.

      The Court: And he’s explained to you the evidence that the
      State has in this case?

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       Mr. Snuggs: Yes.

       The Court: And he’s answered your questions?

       Mr. Snuggs: Yes he has.

       The Court: You’re satisfied with his services?

       Mr. Snuggs: yes.

       The Court: A guilty plea is a complete admission to the
       allegations as set forth in the indictment and you understand
       that’s what a guilty plea means?

       Mr. Snuggs: Yes.

       The Court: Do you have any questions about anything on that
       plea agreement?

       Mr. Snuggs: No, he answered all my questions.

       The Court: If it’s your intent at this time to proceed with the
       plea then go ahead and sign the written plea agreement.

Tr. 3-6. Snuggs then signed the plea agreement in open court. Tr. 7. However,

before accepting the guilty plea, the trial court continued the dialogue with

Snuggs. The trial court informed Snuggs of post-release control and what would

occur if he violated it. Tr. 7.

       The Court: You understand that anyone charged with a crime
       has what’s called a presumption of innocence and it requires a
       trial to, in effect, remove that presumption, do you understand
       that?

       Mr. Snuggs: Yes.

       The Court: And you can have a trial to a judge or a trial to a
       jury and you understand that?


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Case No. 7-16-03 and 7-16-05

      Mr. Snuggs: Yes.

      The Court: If it’s a trial to a jury all twelve jurors must vote to
      convict and you understand that?

      Mr. Snuggs: Yes.

      The Court: In a trial you have certain specific rights, first off
      you have the right to have witnesses subpoenaed to come and
      testify in your case, it’s called your right of compulsory process,
      you understand you would have that right?

      Mr. Snuggs: Yes.

      The Court: You would also have what’s called the right of
      confrontation, first off that is the right to be present in the
      courtroom when the trial is proceeding and it’s also the right to
      have your attorney cross examine any witnesses that might be
      called to testify against you, you understand you have that right?

      Mr. Snuggs: Yes.

      The Court: You also have what’s called the right against self-
      incrimination, that’s a right guaranteed by the Fifth
      Amendment to the United States Constitution and what it means
      in the context of a trial is that you cannot be forced to take the
      witness stand and should you choose not to testify, the State of
      Ohio may not comment on that fact and the trier of fact, be it a
      judge or a jury may not draw a conclusion against you by that
      decision not to testify. You understand you have that right?

      Mr. Snuggs: Yes.

      The Court: In any criminal trial the State of Ohio bears the
      burden of proof beyond a reasonable doubt to prove each and
      every element of the offense for which you are charged, but
      when you enter a guilty plea you relieve the State of that burden,
      you understand that?

      Mr. Snuggs: Yes.

      ***


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Case No. 7-16-03 and 7-16-05

      The Court: Yes, I should do that. I would advise you that you
      still may have a right to an appeal, however if this is a joint
      recommendation and I follow that joint recommendation you
      could not appeal the sentence, however, there may be some other
      aspect of the case that you could appeal. * * * Now, Mr. Snuggs,
      as to the charges as contained in the indictment in counts 1, 2, 3,
      and 4, counts 28, 29, 30, and 31 and counts 41, 42, 43 and 44
      being felonies of the third degree in violations of Revised Code
      2907.03(A)(5) how do you plea?

      Mr. Snuggs: Guilty.

Tr. 8-10. The trial court then imposed the jointly recommended sentence. Doc.

34. In doing so, the trial court found that consecutive sentences were necessary to

protect the public and punish the offender; that consecutive sentences are not

disproportionate to the offense; that a single prison term would not adequately

reflect the seriousness of the defendant’s conduct; and that the harm was so great

or unusual that a single term would not adequately reflect the seriousness of the

conduct. Tr. 12-13 and Doc. 34. No direct appeal was taken from this judgment.

      {¶3} On February 3, 2016, Snuggs filed two motions. One was a motion to

vacate and/or suspend payment of court costs and fines. Doc. 49. The second was

a motion to correct a void or voidable sentence. Doc. 50. The next day, the trial

court overruled both motions.     Doc. 51and 52.     Snuggs appealed from both

judgments on February 26, 2016. Doc. 55 and 59. On appeal, Snuggs raises the

following assignments of error.

                           First Assignment of Error

      The trial court erred in not issuing [Snuggs] findings of facts and
      conclusions of law.


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Case No. 7-16-03 and 7-16-05

                          Second Assignment of Error

      The trial court erred in accepting [Snuggs’] guilty plea due to
      [Snuggs] inability to understand the sentencing range and legal
      rights he was waiving when he plead guilty.

                           Third Assignment of Error

      The trial court erred in sentencing [Snuggs] to counts 28 and 29
      of the indictment when the offenses are allied offenses of similar
      import.

                          Fourth Assignment of Error

      The trial court erred by sentencing [Snuggs] to consecutive
      sentences without making all the requisite judicial findings
      mandated by R.C. 2929.14

                           Fifth Assignment of Error

      [Snuggs] was prejudiced by denial of effective assistance of
      counsel at trial.

                           Sixth Assignment of Error

      The trial court violated [Snuggs’] fundamental right to a fair
      trial with due process of law when [Snuggs] was indicted after
      the six year statute of limitations period expired.

                          Seventh Assignment of Error

      The trial court erred in denying [Snuggs] motion to vacate and
      or suspend payment of court costs and fines.

                    Findings of Fact and Conclusions of Law

      {¶4} In the first assignment of error, Snuggs claims that the trial court erred

by failing to make findings of fact and conclusions of law.

      Any person who has been convicted of a criminal offense * * *
      and who claims that there was such a denial or infringement of
      the person's rights as to render the judgment void or voidable

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Case No. 7-16-03 and 7-16-05

        under the Ohio Constitution or the Constitution of the United
        States may file a petition in the court that imposed the sentence,
        stating the grounds for relief relied upon, and asking the court to
        vacate or set aside the judgment or sentence * * *.

R.C. 2953.21(A)(1). “When a post-judgment motion in a criminal case seeks the

vacation of the imposed sentence on the grounds that a constitutional violation

occurred during the trial proceedings, the defendant’s motion will be deemed a

petition for post-conviction relief.”1 State v. Osco, 11th Dist. Portage No. 2014-P-

0010, 2015-Ohio-45, ¶ 13 See also, State v. Reynolds, 79 Ohio St.3d 158, 1997-

Ohio-304, 679 N.E.2d 1131 and State v. Timmons, 10th Dist. Frankin No. 11AP-

895, 2012-Ohio-2079, ¶ 6. This is true regardless of how the motion is captioned.

Reynolds, supra at 160. A trial court is required to issue findings of fact and

conclusions of law on each claim raised in a petition for post-conviction relief if it

dismissed the petition. R.C. 2953.21(C) and (G). However, the trial court is not

required to make the findings if the petition is subject to dismissal on the basis that

it was untimely filed. State ex rel. James v. Coyne, 114 Ohio St.3d 45, 2007-

Ohio-2716, 867 N.E.2d 837, ¶ 5. A petition for post-conviction relief must be

filed no later than 180 days after the time for a direct appeal has expired. R.C.

2953.21(A)(2).2 Once the time limit has passed, a trial court loses authority to rule

on the petition absent certain exceptions. R.C. 2953.23(A).



1
  Although Snuggs indicated that the motion should not be considered a petition for post-conviction relief,
the content indicated otherwise. He is asking to 1) have his sentence reversed due to errors that occurred
outside the record and 2) to be allowed to withdraw his guilty plea
2
  The statute was amended to give a defendant 365 days to file a petition for post-conviction relief with an
effective date of March 23, 2015.

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Case No. 7-16-03 and 7-16-05

           {¶5} In this case, Snuggs’ petition claimed that his conviction and sentence

were void for several reasons: 1) his guilty plea was not knowingly, intelligently

and voluntarily made because the trial court failed to comply with Crim.R. 11 thus

denying him due process; 2) Counts 28 and 29 where allied offenses of similar

import and he could not be convicted of both, thus denying him the protections

guaranteed him by the Fifth Amendment; 3) the trial court erred by failing to make

the required statutory findings; 4) he was denied effective assistance of counsel;

and 5) he was denied a fair trial when he was convicted of offenses outside of the

statute of limitations.3 Snuggs petition was filed after the time for appeal passed,

claimed a denial of constitutional rights, sought to render the judgment void, and

requested that the conviction and sentence be vacated. Thus, it falls within the

definition of a petition for post-conviction relief set forth in R.C. 2953.21 and is a

petition for post-conviction relief regardless of how it is titled. As a petition for

post-conviction relief, the trial court was required to issue findings of fact and

conclusions of law when dismissing the petition, which it did not do. However,

the petition was required to be filed within 180 days of the time when the direct

appeal could have been filed, or within 365 days under the amended version of the

statute. The final, appealable order convicting Snuggs and sentencing him to

prison was filed on October 15, 2014. Snuggs had 30 days from this date to file

his notice of appeal. App.R. 4. Thus, the notice of appeal would have needed to

be filed by November 14, 2014, to be timely. The time for the petition for post-

3
    The details of each of these claims are addressed in the subsequent assignments of error.

                                                       -9-
Case No. 7-16-03 and 7-16-05

conviction relief began running on November 15, 2014, meaning that the petition

would need to be filed by May 14, 2015, or by November 15, 2015, under the

amended statute, to be timely. The petition was not filed until February 3, 2016,

and was untimely. The petition did not meet either of the two exceptions for an

untimely petition. R.C. 2953.23. As the petition was untimely on its face, the trial

court lacked jurisdiction to consider the petition and was not required to issue

findings of fact and conclusions of law. State ex rel. Kimbrough v. Greene, 98

Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155, ¶ 6. The first assignment of

error is overruled.

                           Criminal Rule 11 Compliance

       {¶6} In the second assignment of error, Snuggs argues that the trial court

erroneously accepted his guilty plea even though he did not fully understand the

sentencing implications or the rights being waived. Although this was part of the

motion to void his sentence, it is basically a request to withdraw a guilty plea after

sentencing. A motion to withdraw a guilty plea may be made after sentencing to

correct a manifest injustice. Crim.R. 32.1.

       In felony cases the court may refuse to accept a plea of guilty * *
       * , and shall not accept a plea of guilty * * * without first
       addressing the defendant personally and doing all of the
       following:

       (a) Determining that the defendant is making the plea
       voluntarily, with understanding of the nature of the charges and
       of the maximum penalty involved, and, if applicable, that the
       defendant is not eligible for probation or for the imposition of
       community control sanctions at the sentencing hearing.


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Case No. 7-16-03 and 7-16-05

      (b) Informing the defendant of and determining that the
      defendant understands the effect of the plea of guilty or no
      contest, and that the court, upon acceptance of the plea, may
      proceed with judgment and sentence.

      (c) Informing the defendant and determining that the defendant
      understands that by the plea the defendant is waiving the rights
      to jury trial, to confront witnesses against him or her, to have
      compulsory process for obtaining witnesses in the defendant’s
      favor, and to require the state to prove the defendant’s guilt
      beyond a reasonable doubt at a trial at which the defendant
      cannot be compelled to testify against himself or herself.

Crim.R. 11(C)(2)(a).

      {¶7} A review of the record shows that the trial court informed Snuggs of

everything required by Criminal Rule 11. The record also shows that Snuggs told

the trial court he understood. Although Snuggs claims that his attorney told him

what to say, there is nothing before this court outside of Snuggs’ self-serving

statements to support Snuggs claims.

      {¶8} Additionally, Snuggs argues that he is not guilty of the crime because

the “victim(s) herein are the daughters of the defendant, and whom consented to

the claimed behavior, and whom [sic] status was that of an adult” because they

were over the age of sexual consent. Appellant’s Brief at 10. However, Snuggs

was convicted of sexual battery of his daughters in violation of R.C.

2907.03(A)(5). The elements of this offense are met when a parent engages in

sexual conduct with their child. The statute does not require a showing of lack of

consent, so whether they “consented” to the conduct is irrelevant. Thus this court




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Case No. 7-16-03 and 7-16-05

finds that there was no manifest miscarriage of justice alleged that would support a

withdrawal of a guilty plea. The second assignment of error is overruled.

                          Allied Offenses of Similar Import

       {¶9} The third assignment of error alleges that the sentences for the

convictions as to counts 28 and 29 should have merged as they were allied

offenses of similar import. Initially, this court notes that this issue is barred by the

doctrine of res judicata as it could have been and should have been raised in a

direct appeal. State v. Ketterer, 140 Ohio St.3d 400, 2014-Ohio-3973, 18 N.E.3d

1199 (holding that res judicata bars the review of whether sentences should have

merged).

       {¶10} Even if the assignment of error was not barred by res judicata, there

is still no evidence that the offenses should have merged. The Supreme Court of

Ohio has held that although generally a defendant may not appeal a jointly

recommended sentence, a trial court has no discretion whether to merge sentences

for allied offenses of similar import. State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, ¶ 26. Thus, a defendant may appeal this issue even

though the sentence was jointly recommended. Id.

       {¶11} Snuggs claims in his brief that the conduct in Counts 28 and 29 were

one act. The indictment merely states for both counts that sexual conduct occurred

on May 18, 2012 with the same victim. No details regarding the conduct were

provided in the record or at the hearing. Additionally, Snuggs does not identify

exactly what the alleged conduct was. Without some evidence in the record to

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Case No. 7-16-03 and 7-16-05

show that there was only one act and it formed the basis of two counts of the

indictment, this court will not reverse the convictions. The third assignment of

error is overruled.

                       Imposition of Consecutive Sentences

       {¶12} Next, Snuggs claims that the trial court erred by not making the

statutorily required findings before imposing consecutive sentences. The Supreme

Court of Ohio recently addressed this very issue. The Court held that “in the

context of a jointly recommended sentence that includes nonmandatory

consecutive sentences, a trial court is not required to make the consecutive-

sentence findings set out in R.C. 2929.14(C)(4).” State v. Sergent, ___ Ohio St.3d

___, 2016-Ohio-2696, ___ N.E.3d ___, ¶ 43. However, a review of the record

also shows that contrary to Snuggs’ argument, the trial court did make the required

findings at the hearing and stated as much in the judgment entry of sentencing.

The fourth assignment of error is overruled.

                         Ineffective Assistance of Counsel

       {¶13} The fifth assignment of error alleges that Snuggs was denied

effective assistance of counsel because counsel convinced him to accept the plea

agreement and enter a guilty plea.

       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial
       and substantial justice was done.” State v. Hester (1976), 45 Ohio
       St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the
       syllabus. When making that determination, a two-step process is
       usually employed. “First, there must be a determination as to
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Case No. 7-16-03 and 7-16-05

       whether there has been a substantial violation of any of defense
       counsel's essential duties to his client. Next, and analytically
       separate from the question of whether the defendant's Sixth
       Amendment rights were violated, there must be a determination
       as to whether the defense was prejudiced by counsel's
       ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–397,
       2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other
       grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.

       On the issue of counsel's ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
       St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
       Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N .E.2d 905. The

failure to prove either 1) a substantial violation or 2) prejudice caused by the

violation makes it unnecessary for a court to consider the other prong of the test.

State v. Anaya, 191 Ohio App.3d 602, 2010-Ohio-6045, 947 N.E.2d 212, ¶ 25.

       {¶14} Initially, this court notes that this issue could have been and should

have been raised on direct appeal. Thus, review of this issue is barred by the

doctrine of res judicata. Additionally, the alleged errors claimed by Snuggs are

not supported by the record. He claims that counsel did not adequately review the

charges and pleas with him, but at trial he informed the trial court that his counsel

had gone over everything with him and that he was satisfied with his performance.

This court notes that Snuggs was charged with 44 counts and that 13 of those

counts were for rape of a child under the age of 13, felonies of the first degree. If

Snuggs had been convicted of all 44 counts, he was facing a possible prison term

of 256 years. Instead, he entered a plea agreement which provided him with a


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Case No. 7-16-03 and 7-16-05

conviction of 12 counts of sexual battery and a jointly recommended sentence of

35 years. Snuggs has not asserted any information, other than his own self-serving

affidavit that would indicate that his counsel violated his duty to Snuggs.

“Defendant's own self-serving declarations or affidavits alleging a coerced guilty

plea are insufficient to rebut the record on review which shows that his plea was

voluntary.” State v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983). The

fifth assignment of error is overruled.

                                Statute of Limitations

        {¶15} In his sixth assignment of error, Snuggs claims that his constitutional

rights were violated because he was convicted of Counts One and Two after the

statute of limitations had expired. This court initially notes that this issue could

have been raised either at trial or on direct appeal and is thus barred by the

doctrine of res judicata. However, even if it were timely raised, Snuggs would

still lose.

        (A)(1) Except as provided in division (A)(2) or (3) of this section
        or as otherwise provided in this section, a prosecution shall be
        barred unless it is commenced within the following periods after
        an offense is committed:

        (a) For a felony, six years;

        ***

        (3) Except as otherwise provided in divisions (B) to (H) of this
        section, a prosecution of any of the following offenses shall be
        barred unless it is commenced within twenty years after the
        offense is committed:



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Case No. 7-16-03 and 7-16-05

       (a) A violation of section * * * 2907.03 * * * of the revised Code
       * * *.

R.C. 2901.13. At the time the offenses in question were committed (1995 and

1998), the statute merely set forth a limit of six years. This time frame would

mean that the statute of limitations would expire in 2001 and 2004 respectively.

In 1999, the statute was modified to include the twenty years limit for those

charged with sexual battery. The legislative history to the act states that

       Section 2901.13 of the Revised Code as amended by this act,
       applies to an offense committed on and after the effective date of
       this act and applies to an offense committed prior to the effective
       date of this act if prosecution for that offense was not barred under
       2901.13 of the Revised Code as it existed on the day prior to the
       effective date of this act.

(emphasis added). “Thus, if the statute of limitations had not expired on March 8,

1999, an offender is subject to prosecution under the amended version of R.C.

2901.13.” State v. Massey, 5th Dist. Stark No. 2004 CA 00291, 2005-Ohio-5819, ¶

12. The statute of limitations on Counts One and Two had not expired as of

March 8, 1999, therefore, the statute of limitations was modified to twenty years

by the statute. The sixth assignment of error is overruled.

       {¶16} Finally, Snuggs challenges the trial court’s denial of his motion to

stay payment of fines and costs. This court notes that the trial court did not

impose any fines. Doc. 34. The trial court did require Snuggs to pay court costs.

Snuggs argues that the trial court erred in imposing court costs without first

holding a hearing to determine his ability to pay due to his indigent status. The

imposition of court costs is governed by R.C. 2947.23 and is not discretionary.

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“In all criminal cases * * * the judge * * * shall include in the sentence the costs

of prosecution * * * and render a judgment against the defendant for such costs.”

R.C. 2947.23(A). This applies without consideration of a defendant’s ability to

pay. State v. Turner, 6th Dist. Wood No. WD-12-064, 2013-Ohio-5073, ¶ 11.

However, the trial court may waive, suspend, or modify the payments at any time

from sentencing forward. R.C. 2947.23(C). The decision whether to do so is

reviewed under an abuse of discretion standard.       State v. Thomas, 11th Dist.

Ashtabula No. 2014-A-0072, 2016-Ohio-1357, ¶ 7.

       {¶17} Here, Snuggs does not raise any issue not previously reviewed by the

trial court. Multiple motions to suspend the payments of fines have been filed all

claiming that he cannot afford to pay court costs and purchase hygiene items.

However, these motions also indicate that his family has been able to help him and

that he is able to purchase the items with their help. Based upon the record before

it, this court does not find that the trial court abused its discretion. The seventh

assignment of error is overruled.

       {¶18} Having found no error prejudicial to the Appellant, the judgments of

the Court of Common Pleas of Henry County are affirmed.

                                                               Judgment Affirmed




SHAW, P.J. and ROGERS, J., concur.

/hls


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