[Cite as State v. Lopshire, 2019-Ohio-3427.]




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



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 1-19-16

        v.

SHAWN LOPSHIRE,                                         OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Lima Municipal Court
                            Trial Court No. 18CRB01949 B2

                     Judgment Affirmed in Part, Reversed in Part
                               and Cause Remanded

                            Date of Decision: August 26, 2019




APPEARANCES:

        Andrea M. Brown for Appellant

        Anthony M. DiPietro for Appellee
Case No. 1-19-16



SHAW, J.

       {¶1} This appeal, having been placed on the accelerated calendar, is sua

sponte being assigned and considered on the regular calendar pursuant to Loc.R.

12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full opinion

in lieu of a judgment entry.

       {¶2} Defendant-Appellant, Shawn Lopshire (“Lopshire”), appeals the March

7, 2019 Judgment Entry of Conviction Disposition of Sentence journalizing his

conviction, after having entered a plea of no contest, to one count of disorderly

conduct, in violation of R.C. 2917.11(A)(2), a minor misdemeanor. The trial court

sentenced Lopshire to pay a fine of $75.00 and to complete 20 hours of community

service within six months. On appeal, Lopshire claims that the trial court was

without the authority to impose both a fine and a term of community service as a

sentence for his minor misdemeanor conviction, and that the trial court’s sentence

constitutes an excessive fine in violation of the protections accorded to him under

the Federal and Ohio Constitutions.

                               Procedural History

       {¶3} On July 3, 2018, complaints were filed against Lopshire due to

allegations arising from a dispute with neighbors concerning Lopshire’s barking

dogs. As a result, Lopshire was charged with one count of Criminal Trespass, in



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violation of R.C. 2911.21(A)(1), a misdemeanor of the fourth degree, and one count

of Disorderly Conduct, in violation of R.C. 2917.11(A)(2), a minor misdemeanor.

      {¶4} On March 7, 2019, Lopshire entered a plea of no contest to one count

of Disorderly Conduct. Upon recommendation of the prosecutor, the Criminal

Trespass charge was dismissed by the trial court with prejudice. The same day, the

trial court accepted Lopshire’s no contest plea and found him guilty of Disorderly

Conduct. The trial court imposed the following sentence:

      {¶5} IT IS THEREFORE ORDERED, ADJUDGED AND DECREED

THE DEFENDANT BE:

      (X) Fined $75.00 and Court Cost.

      (X) Successfully complete 20 hours of Community Service with the agency
      designated by the Lima Municipal Court Probation Department within 6
      months.

      (X) Other: THE COURT GRANTED THE DEFENDANT TO BE ABLE
      TO WORK WITH CHAINED EAGLES OF OHIO FOR HIS
      COMMUNITY SERVICE.

      SO ORDERED.

(Doc. No. 17).

      {¶6} Lopshire filed this appeal, asserting the following assignments of error.

                      ASSIGNMENT OF ERROR NO. 1

      THE TRIAL COURT ERRED AND ABUSED ITS
      DISCRETION IN SENTENCING DEFENDANT-APPELLANT
      TO TWENTY HOURS OF COMMUNITY SERVICE IN


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       ADDITION TO IMPOSING A FINE OF SEVENTY-FIVE
       DOLLARS ON A MINOR MISDEMEANOR OFFENSE.

                       ASSIGNMENT OF ERROR NO. 2

       THE IMPOSITION OF BOTH A FINE AND COMMUNITY
       SERVICE IN SENTENCING DEFENDANT-APPELLANT
       CONSTITUTES AN EXCESSIVE FINE IN VIOLATION OF
       THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION
       AND ARTICLE I, SECTION 9 OF THE OHIO
       CONSTITUTION.

                              First Assignment of Error

       {¶7} In his first assignment of error, Lopshire argues that the trial court erred

when it imposed both a fine and a term of community service as a sentence for his

minor misdemeanor conviction.

                              Relevant Legal Authority

       {¶8} It is undisputed by the parties that the trial court is authorized to impose

a financial sanction of a fine for a minor misdemeanor of “not more than one

hundred fifty dollars.” R.C. 2929.28 (A)(2)(v). The parties’ disagreement focuses

on the trial court’s authority to impose a fine and a term of community service for

a minor misdemeanor offense; specifically, the authority conferred to the trial court

in R.C. 2929.27(D), which states:

       (D) The court imposing a sentence for a minor misdemeanor may
       impose a term of community service in lieu of all or part of a fine.
       The term of community service imposed for a minor
       misdemeanor shall not exceed thirty hours. After imposing a term
       of community service, the court may modify the sentence to
       authorize a reasonable contribution, as determined by the court,

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       to the appropriate general fund as provided in division (B) of this
       section.

       (Emphasis added).

       {¶9} Lopshire appears to contend that this provision permits the trial court to

elect to impose either a fine or a term of community service, but not both in

fashioning a minor misdemeanor sentence. Alternatively, Lopshire argues that the

statute requires the trial court to state in its judgment entry specifically what fine, or

part of a fine, the term of community service is imposed in lieu of. The State, on

the other hand, argues that the statute permits the trial court to impose both a fine

and a term of community service so long as the sentence is within the statutory

range—i.e., the fine does not exceed $150.00 and the term of community service

does not exceed 30 hours.

       {¶10} Initially, we find that the relevant case law authority supports the

State’s position on appeal. See State v. Jones, 6th Dist. Sandusky No. S-14-003,

2015-Ohio-903, ¶ 13 (stating that “[w]here the trial court imposes a fine less than

the statutory amount for a minor misdemeanor, a sentence to community service is

permitted within the statutory range of sentences authorized under R.C. 2929.27(D)

and 2929.28(A)(2)(v)”); Cincinnati v. Howard, 179 Ohio App. 3d 60, 63, 900 2008-

Ohio-5502, ¶ 10 (1st.Dist)(concluding that when the maximum fine was imposed

for a minor misdemeanor, the trial court was without authority to order community

service). Moreover, the plain language of the statute permitting a trial court to

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impose “a term of community service in lieu of all or part of a fine” for a minor

misdemeanor is consistent with these holdings. R.C. 2929.27(D) (emphasis added).

       {¶11} This notwithstanding, we agree with Lopshire that the trial court failed

to follow the statutory procedure explicitly mandated under R.C. 2929.27(D), which

requires a term of community service for a minor misdemeanor offense to be

imposed in lieu of all or part of a fine. Here, there is nothing in the trial court’s

judgment entry indicating that the term of community service was imposed in lieu

of all or part of a fine. Consequently, we reverse the judgment and remand the case

for resentencing with instructions to the trial court to state in its judgment entry

specifically what fine, or part of a fine, the term of community service is imposed

in lieu of. See, Jones supra at ¶ 16. Accordingly, to this extent only we sustain the

first assignment of error.

                             Second Assignment of Error

       {¶12} In his second assignment of error, Lopshire argues that the trial court’s

sentence constitutes an excessive fine, which violates his rights under the Federal

and Ohio Constitutions. In support of this position, Lopshire makes an argument

based upon “the only * * * section of the Ohio Revised Code wherein the hourly

credit rate for community service is mentioned;” specifically, R.C. 2947.23, which

pertains to imposing mandatory costs. (Appr. Br. at 6).




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       {¶13} Section 2947.23 of the Revised Code mandates that the trial court

impose the costs of prosecution against all convicted defendants regardless of their

ability to pay such costs. Middleburg Hts. v. Quinones, 120 Ohio St.3d 534, 2008-

Ohio-6811. Section 2947.23(A)(1)(a)(i) of the Revised Code permits the court to

order a defendant to perform community service if the defendant fails to pay the

judgment or fails to timely make payments towards the judgment. The statute

directs the court to give the defendant credit upon the judgment at the specified

hourly credit rate per hour of community service performed, and each hour of

community service performed will reduce the judgment by that amount. See

2947.23(A)(1)(a)(ii). “Specified hourly credit rate” is defined as “an hourly credit

rate set by the judge or magistrate, which shall not be less than the [federal

minimum] wage rate * * * ”. R.C. 2947.23(D)(2).

       {¶14} Applying this statute to the instant case, Lopshire maintains that the

trial court’s sentence constitutes an excessive fine because twenty hours of

community service would amount to $145.00 when calculated using the specified

hourly credit rate. Lopshire asserts that this amount in addition to the $75.00

exceeds the statutory maximum for a minor misdemeanor fine of “not more than

one hundred fifty dollars” as stated in R.C. 2929.28(A)(2)(v). On this basis alone,

Lopshire challenges the trial court’s sentence as unconstitutional.




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       {¶15} We do not find Lopshire’s argument to be persuasive. On its face, the

statutory provisions in R.C. 2947.23 pertain only to the trial court’s authority to

devise an alternative means for a defendant to “pay” mandatory costs of prosecution,

and thus in our view does not govern the trial court’s authority to impose a fine

and/or a term of community service for a minor misdemeanor offense under R.C.

2929.27(D).

       {¶16} Moreover, Lopshire has failed to set forth any authority supporting his

general assertion that the trial court’s sentence is unconstitutional. The Eighth

Amendment to the United States Constitution prohibits excessive sanctions and

provides: “Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” Section 9, Article I of the Ohio

Constitution likewise sets forth the same restriction: “Excessive bail shall not be

required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.”

The Supreme Court of Ohio has noted, “Central to the Constitution’s prohibition [in

the Eighth Amendment] is the ‘precept of justice that punishment for crime should

be graduated and proportioned to [the] offense.’ ” In re C.P., 131 Ohio St.3d 513,

2012-Ohio-1446, ¶ 25, quoting Weems v. United States, 217 U.S. 349, 367 (1910);

see also United States v. Bajakajian, 524 U.S. 321, 335 (1998)(stating that the

touchstone of constitutional inquiry under the Eighth Amendment’s Excessive Fines

Clause is the principle of “proportionality”).


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       {¶17} Lopshire has failed to articulate any argument in his brief alleging that

the trial court’s sentence is either disproportionate to his offense or otherwise

constitutionally infirm. The duty is on the appellant, not the appellate court, to

construct the legal arguments necessary to support the appellant’s assignments of

error. State v. Ames, 3d Dist. Allen No. 1-19-02, 2019-Ohio-2632, ¶ 17; see App.R.

12 and App.R.16. “It is not this court’s duty to ‘root out’ or develop an argument

that can support an assigned error, even if one exists.” Lebanon v. Ballinger, 12th

Dist. Warren No. CA2014-08-107, 2015-Ohio-3522, ¶ 27.              Accordingly, we

overrule the second assignment of error.

       {¶18} For the reasons stated in our resolution of the assignments of error, we

affirm in part and reverse in part the judgment of the trial court and the cause is

remanded for further proceedings consistent with this opinion.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                 Cause Remanded

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr




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