[Cite as State v. Seaunier, 2011-Ohio-658.]




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



STATE OF OHIO,                                            CASE NO. 14-10-12

   PLAINTIFF-APPELLEE,

  v.

JOSEPH SEAUNIER,                                            OPINION

   DEFENDANT-APPELLANT.



                        Appeal from Marysville Municipal Court
                            Trial Court No. CRB 0901301

                                      Judgment Affirmed

                           Date of Decision: February 14, 2011




APPEARANCES:

        Alison Boggs for Appellant

        Victoria Stone-Moledor for Appellee
Case No. 14-10-12



SHAW, J.

       {¶1} Defendant-appellant, Joseph Seaunier (“Seaunier”), appeals the March

5, 2010, judgment of the Marysville Municipal Court, finding him guilty of one

count of aggravated menacing in violation of R.C. 2903.21(A) and sentencing him

to ninety days in jail.

       {¶2} On November 20, 2009, officers with the Marysville Police

Department responded to a call at a residence on East Fourth Street regarding a

woman being threatened by a man with a knife. While en route, Officer Dennis

Flanagan was advised that the man had discarded the knife but was now chasing a

woman around a parked car. When officers arrived, they found Seaunier’s sister,

Brandi Greer, outside of the home. Greer, who was crying and upset, informed the

officers that she had been attacked by Seaunier, who was now inside his home.

Officers approached the home, and Seaunier came out onto the front porch. After

speaking with some of the people on the scene, including Seaunier, who appeared

to be under the influence of alcohol and/or drugs, the officers arrested Seaunier

and removed him from the scene. Once Seaunier was removed from the scene,

Greer stated that she now felt safe and the officers re-interviewed her as well as a

number of other witnesses.     Greer also provided a written statement to Off.

Flanagan, reaffirming the verbal statement she had given him.




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       {¶3} Seaunier was subsequently charged with aggravated menacing, a

misdemeanor of the first degree, in violation of R.C. 2903.21(A). He pled not

guilty, and the matter proceeded to a trial to the court on March 5, 2010. Seaunier

was found guilty of the offense, and the trial court sentenced him to ninety days in

jail and ordered him to pay a fine of $600.00 and court costs. Seaunier was

immediately taken into custody. Shortly after sentencing Seaunier, the trial court

filed commitment papers for the Tri-County Regional Jail, where Seaunier was

serving his sentence. Included in these commitment papers was a commitment for

fines that notified the jail that Seaunier was ordered to pay a fine of $600.00 and

that he was to be imprisoned in the jail immediately and to remain in the jail until

he paid his fine or was otherwise legally discharged. This commitment paper also

noted that Seaunier was to receive credit towards his fine at the rate of $50.00 for

each day he was confined to the jail for not paying his fines. A notice was also

filed that day by the clerk’s office, which stated that Seaunier owed a total of

$698.00 in his case, $600.00 of which was for his fine and $98.00 of which was

for court costs. This notice further stated that court costs had to be paid first

before any monies would be applied to the fine and that the payment of only the

amount of fines would not terminate Seaunier’s sentence to serve out fines in jail.

In explaining this, the notice stated:

       For example, where a Defendant owes fines of $600.00 and court
       costs of $210.00, and a $600.00 payment is made before
       Defendant has served out twenty-four hour days in jail, $210.00

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         of the $600.00 payment would be applied to pay court costs and
         the remaining $390.00 would be applied to the $600.00 fine. A
         fine of $210.00 remains. Defendant would have to serve out the
         remaining $210.00 fine at $50.00 per day, i.e., serve an additional
         five, twenty-four hour days. (There is no credit for a partial day
         – a time less than twenty-four hours.)

The return filed on Seaunier’s commitment paper for his ninety-day sentence

reflects that he was incarcerated at the jail from March 5, 2010, until May 15,

2010, seventy-one days, and that he received “work days credit”1 for nineteen days

for a total of ninety days. The return filed on Seaunier’s commitment paper for his

fines reflects that he was incarcerated at the jail from May 15, 2010, until May 27,

2010, a total of twelve days with a credit of $50.00 per day, for a total of $600.00.

         {¶4} During his incarceration, Seaunier sent two letters to the court in

March and April, respectively, requesting that he be released early. On May 7,

2010, an attorney from the Union County Public Defender’s Office entered her

appearance on behalf of Seaunier and subsequently filed a notice of appeal of

Seaunier’s conviction and a request to file a delayed appeal due to the trial court’s

failure to inform Seaunier at the time of his sentencing that he had a right to a

direct appeal.        This Court granted the request to file a delayed appeal, and

Seaunier now asserts four assignments of error for our review.




1
  The record does not reflect that the trial court ordered work release or otherwise directed credit for work
days. Further, the record does not otherwise indicate what the term “work days credit” means and whether
these were days that Seaunier actually served in jail.

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                         ASSIGNMENT OF ERROR I

       THERE WAS INSUFFICIENT EVIDENCE FOR THE TRIAL
       COURT   TO    FIND   DEFENDANT    GUILTY   OF
       AGGRAVATED MENACING.

                         ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S DECISION WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

                        ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE
       DEFENDANT OF HIS RIGHT TO APPEAL THE OUTCOME
       OF THE BENCH TRIAL AND REMAINING PROCEEDINGS
       AFTER HE WAS SENTENCED.

                        ASSIGNMENT OF ERROR IV

       THE TRIAL COURT’S POLICY OF INCREASING
       DEFENDANT’S JAIL SENTENCE THROUGH THE
       COMMITMENT PAPERWORK FOR THE NON-PAYMENT
       OF FINES VIOLATED DEFENDANT’S DUE PROCESS
       RIGHTS AND IS A VIOLATION OF OHIO REVISED CODE
       SECTION 2947.14.

       {¶5} This Court’s analysis of the issues before it begins by noting that the

appellee, the State of Ohio, failed to file an appellate brief in this matter.

Appellate Rule 18(C) outlines the consequences of the failure of an appellee to file

a brief:

       If an appellee fails to file the appellee’s brief within the time
       provided by this rule, or within the time as extended, * * * the
       court may accept the appellant’s statement of the facts and
       issues as correct and reverse the judgment if appellant’s brief
       reasonably appears to sustain such action.


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Case No. 14-10-12


We cannot overemphasize the importance of filing a brief on appeal and caution

parties against this neglectful approach to appeals, especially when that party has

an obligation to citizens of the State of Ohio. Despite the discretion afforded to

this Court, we believe there are significant errors in the trial court’s sentencing

procedure that should be addressed by this Court, although Seaunier’s brief has

failed to convince us that reversible error occurred. Accordingly, we decline to

apply App.R. 18(C) to this case, and we further decline to sustain these

assignments of error for the reasons that follow.

                      First and Second Assignments of Error

       {¶6} Seaunier asserts in his first assignment of error that the trial court

erred in finding him guilty of aggravated menacing because the evidence was

insufficient to support such a finding. In his second assignment of error, Seaunier

maintains that his conviction was against the manifest weight of the evidence.

       {¶7} Reviewing a challenge to the sufficiency of the evidence requires this

Court to examine the evidence in the light most favorable to the prosecution. The

Ohio Supreme Court has set forth the sufficiency of the evidence test as follows:

       [A]n appellate court’s function when reviewing the sufficiency of
       the evidence to support a criminal conviction is to examine the
       evidence admitted at trial and determine whether such evidence,
       if believed, would convince the average mind of the defendant’s
       guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to
       the prosecution, any rational trier of fact could have found the
       essential elements of the crime proven beyond a reasonable
       doubt.

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State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492.

       {¶8} Unlike our review of the sufficiency of the evidence, an appellate

court’s function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. In reviewing

whether the trial court’s judgment was against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and examines the conflicting testimony.

Id. In doing so, this Court must review the entire record, weigh the evidence and

all of the reasonable inferences, consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the factfinder “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. Andrews, 3rd Dist. No. 1-05-70,

2006-Ohio-3764, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485

N.E.2d 717; Thompkins, 78 Ohio St.3d at 387.

       {¶9} Here, the State had to prove that Seaunier knowingly caused another

to believe that he would cause serious physical harm to the person or property of

the other person, the other person’s unborn, or a member of the other person’s

immediate family. See R.C. 2903.21(A). Off. Flanagan testified that he was

dispatched to 705 East Fourth Street, in Marysville, Ohio, on November 20, 2009,

due to a report of a male subject threatening a woman with a knife. He was later


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Case No. 14-10-12


told that the male subject had discarded the knife but was now chasing a person

around a parked car.      When he arrived, he found Brandi Greer in a nearly

hysterical state, and she informed him that Seaunier had attacked her.           Off.

Flanagan further testified that Greer did not become calm until Seaunier was taken

into custody and removed from the scene. At that point, Greer stated that she felt

safe and was able to provide a more complete statement to Off. Flanagan about

what transpired between her and her brother.

       {¶10} Greer was also called to testify on behalf of the State. During her

testimony, she stated that she went to Seaunier’s home that night because he had

called and told her that he was going to kill himself. She further testified that

when she walked into Seaunier’s home, he was seated on the couch with a knife in

his hand. She began screaming at him and crying, and he stood up and threatened

to kill himself. Greer testified that she grabbed Seaunier’s wrists and “yanked

him” and that during this interaction, Seaunier’s hand “smacked [her] up side [her]

face[.]” (Trial Tr., 3/5/10, at p. 16.) Greer also testified that the only threat that

Seaunier made was that he was going to kill himself and that she called 9-1-1

because she “was scared for his life.” (id. at 17.) However, Greer also admitted

that she told the officers who responded that night that Seaunier had “pulled a

knife on [her].” (Emphasis added.) (id. at 18.)

       {¶11} The State also introduced a recording of the 9-1-1 call that Greer

placed that night. This recording reveals that Greer was clearly upset during much

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of this call. She told the dispatcher that Seaunier had thrown her around, had

thrown his girlfriend around, and was now chasing his girlfriend around a car. She

also told the dispatcher that Seaunier had a butcher knife in his hand and had hit

her in the face with it. At different times during this call, Greer can also be heard

yelling at Seaunier, including yelling at him that he had hit her twice, had spit on

her, and that she was going to press charges against him. Repeatedly, Greer told

the dispatcher that Seaunier was going crazy. At one point, Greer informed the

dispatcher that Seaunier said that he was going to kill himself, but she never stated

that the only fear she had was that he was going to harm himself. To the contrary,

the recording reflects that Greer was concerned for her safety and the safety of

Seaunier’s girlfriend because of Seaunier’s behavior, including the fact that he was

wielding a butcher knife, and that she was very anxious for officers to arrive,

repeatedly telling the dispatcher that the officers were not coming quickly enough

for her.

        {¶12} After playing the recording, the State asked further questions of

Greer regarding the 9-1-1 call. However, a portion of this examination is absent

from the transcript because the recording equipment in the courtroom was turned

off for an unknown amount of time and for unknown reasons.2 Nevertheless, the


2
  The recording equipment appears to have been turned off when the prosecutor attempted to play the 9-1-1
recording. The transcript reveals that there were some problems with playing the 9-1-1 call and during this
time the courtroom recording equipment was turned off. The transcript resumes during an objection by
counsel for Seaunier and the response by the trial court, which clearly demonstrates that additional
questions and responses occurred between the prosecutor and Greer prior to this time but that these were
not recorded.

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Case No. 14-10-12


transcript includes additional testimony from Greer, wherein she identified

Seaunier as the person with whom she had the altercation that prompted her to call

9-1-1 and that this occurred at his home in Marysville, Ohio.

       {¶13} In light of all this evidence and construing it in a light most favorable

to the prosecution, we find that there was sufficient evidence before the trial court

to find that Seaunier knowingly caused another to believe that he would cause

serious physical harm to the person. Further, we do not conclude that Seaunier’s

conviction was against the manifest weight of the evidence. Although Greer’s

testimony at trial was that the only concern she had was for her brother’s life

because he was threatening to kill himself and that he never threatened her that

night, the testimony of Off. Flanagan and, more importantly, the 9-1-1 recording

of Greer’s call for police assistance on that night reflect that Greer was attacked by

her brother and believed that he would cause serious physical harm to her when he

came after her with a butcher knife. Moreover, even Greer’s testimony at trial

establishes that Seaunier knowingly caused her to believe that he would cause

serious physical harm to a member of her family, namely himself, as he is her

brother. For all of these reasons, the first and second assignments of error are

overruled.

                             Third Assignment of Error

       {¶14} In Seaunier’s third assignment of error, he maintains that the trial

court erred in failing to advise him of his right to appeal pursuant to Criminal Rule

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32(B) and, as a result, his conviction should be reversed. Seaunier correctly

asserts that the trial court did not advise him of his appellate rights. However,

Crim.R. 32(B) only requires a trial court to advise a defendant of his right to

appeal when the defendant is convicted of a serious offense. “Serious offense” is

defined as “any felony, and any misdemeanor for which the penalty prescribed by

law includes confinement for more than six months.” Crim.R. 2(C). The offense

of aggravated menacing as charged against Seaunier is a first degree misdemeanor

for which the penalty prescribed by law does not include confinement for more

than six months. See R.C. 2903.21(A); 2929.24(A)(1). Thus, the trial court was

not required to inform him of his appellate rights. Furthermore, even if the trial

court was required to inform him of his appellate rights, the remedy for such a

failure is not necessarily a reversal of his conviction.     Rather, Seaunier was

permitted to file a delayed appeal in this matter and has been afforded every

opportunity to present his assignments of error and arguments in support as if his

appeal had been timely filed. Therefore, Seaunier has not suffered any harm due

to a failure to be informed of his right to appeal.        Accordingly, the third

assignment of error is overruled.

                           Fourth Assignment of Error

       {¶15} Seaunier asserts in his fourth assignment of error that the trial court

erred when it issued commitment papers to the jail ordering Seaunier’s

confinement for the non-payment of fines without first affording him the due

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process afforded him by R.C. 2947.14. Our review of this issue begins by noting

that, in addition to other sanctions permitted by the Revised Code, R.C. 2929.28

allows a trial court to sentence a defendant who has been convicted of a first

degree misdemeanor to pay a fine of not more than $1,000.00.                                             R.C.

2929.28(A)(2)(a)(i). In addition, “[i]f a fine is imposed as a sentence or a part of a

sentence, the court or magistrate that imposed the fine may order that the offender

be committed to the jail . . . until the fine is paid[.]” R.C. 2947.14(A). However,

before a trial court may order that an offender be committed to jail for the non-

payment of fines, it must comply with all of the requirements of R.C. 2947.14.

         {¶16} More specifically, the court must determine “that the offender is

able, at that time, to pay the fine but refuses to do so.” Id. In order to make this

determination, the court is required to conduct a hearing at the time of sentencing.3

Id. During this hearing, “the offender has the right to be represented by counsel

and to testify and present evidence as to the offender’s ability to pay the fine.”

R.C. 2947.14(B). Further, “[i]f a court or magistrate determines after considering

the evidence presented by an offender, that the offender is able to pay a fine, the

determination shall be supported by findings of fact set forth in a judgment entry

3
  The statute also contains a provision that permits a court to conduct an additional hearing at a later date in
the event the court initially finds that the offender is able to pay but does not order the confinement of the
offender and the offender later fails to pay the fine. In that case, the offender is entitled to a hearing “in
order to inform the court or magistrate of any change of circumstances that has occurred since the time of
sentencing and that affects the offender’s ability to pay the fine.” R.C. 2947.14(C). Although the offender
may waive this right, if the offender does not do so, the same requirements of the initial hearing exist at the
second hearing, including the right of the offender to present evidence and the mandate that a trial court
issue a judgment entry that contains the findings of fact to support its determination that the offender has
the ability to pay the fine. Id.

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Case No. 14-10-12


that indicate the offender’s income, assets, and debts, as presented by the offender,

and the offender’s ability to pay.” Id. (Emphasis added.)

       {¶17} In the case sub judice, the trial court failed to follow any of these

mandates before ordering Seaunier’s commitment for the non-payment of fines.

Instead, the trial court found Seaunier guilty and proceeded to sentencing, which

included ordering him to pay a fine of $600.00. The judgment entry of the court,

which is clearly a form entry, contains an “x” next to the following choice: “After

trial the Court finds Defendant GUILTY and able to pay fines and costs[.]”

However, there are no findings of fact to support the court’s determination that

Seaunier was able to pay, and, in fact, the record is completely devoid of any

information regarding Seaunier’s income, assets, debts, or ability to pay. Nothing

regarding any of this information was discussed or even mentioned at the time of

sentencing.   Notably, the only information contained in the record regarding

Seaunier’s financial status at the time the trial court ordered his confinement for

fines was an entry of appearance by the Union County Public Defender’s Office

on November 25, 2009, wherein that office noted that Seaunier was currently

indigent pursuant to the laws of the State of Ohio and eligible for indigent

representation. In addition to a lack of evidence as to Seaunier’s ability to pay, the

record is devoid of any evidence that Seaunier had the ability to pay his fine at that

time but refused to do so.



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       {¶18} “It is axiomatic that ‘[i]n Ohio a court speaks through its journal.’”

State v. King, 70 Ohio St.3d 158, 162, 1994-Ohio-412, 637 N.E.2d 903, quoting

State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 118, 551 N.E.2d

183. Not only did the trial court fail to conduct the requisite hearing, to afford

Seaunier the opportunity to present evidence regarding his ability to pay the fine,

and to issue findings of fact that indicated Seaunier’s income, assets, debts, and

ability to pay, the trial court also failed to journalize its decision to confine

Seaunier for his fines. Rather, the trial court issued commitment papers to the jail

to inform the jail officials that Seaunier was to remain in their custody until his

fine of $600.00 was paid or otherwise legally discharged. Further, the notification

provided by the trial court to Seaunier, the prosecutor, the jail and “others

concerning serving out of fines in jail” contained an explanation that any amount

of money deposited on Seaunier’s behalf would first be applied toward court costs

and actually provided an example that, in essence, informed Seaunier that he

would remain in jail until his fines and court costs were paid at a rate of credit of

$50.00 for each day spent in jail. Unfortunately, none of this was set forth in the

actual judgment entry of sentence.

       {¶19} More importantly, however, a court cannot incarcerate a person for

non-payment of court costs, either directly or indirectly. See Strattman v. Studt

(1969), 20 Ohio St.2d 95, paragraphs six and seven of the syllabus, 253 N.E.2d

749 (holding that the obligation to pay court costs, in both civil and criminal

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actions, is a civil obligation for which Art. 15, § I of the Ohio Constitution

prohibits incarceration). Thus, to place a defendant in jail for the non-payment of

fines and to keep him confined until such time as his fines were paid or he was

otherwise legally discharged while simultaneously requiring that any monies

deposited on the defendant’s behalf be applied to court costs before being applied

towards the fine is an unconstitutional deprivation of the offender’s liberty to the

extent that the offender is held for the total amount of court costs. Fortunately in

this case, the returns on Seaunier’s commitment papers do not reflect that he was

held longer than twelve days: the number of days necessary to reach his total fine

of $600.00 at a rate of $50.00 per day, which appears to indicate that he did not

actually serve any time in jail for the non-payment of court costs. In short, the

trial court erred in having Seaunier confined for the non-payment of fines without

following the mandates of R.C. 2947.14.

       {¶20} Nevertheless, despite these concerns, the record demonstrates that

Seaunier has already completed his term of incarceration for the non-payment of

fines. Thus, as applied to this case, the assignment of error is moot as there is no

judgment to reverse and no remedy to otherwise provide in these proceedings.

Accordingly, for this reason only, the fourth assignment of error is overruled, and

the judgment of the Marysville Municipal Court is affirmed.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

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