[Cite as State v. Garrett, 2013-Ohio-3035.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :            C.A. CASE NO.        25426

v.                                                    :            T.C. NO.   10CR4058/2

TRAMMEL D. GARRETT                                    :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                           :

                                                      :

                                              ..........

                                              OPINION

                          Rendered on the      12th       day of      July    , 2013.

                                              ..........

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

RICHARD S. SKELTON, Atty. Reg. No. 0040694, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                              ..........

DONOVAN, J.

                 {¶ 1} This matter is before the Court on the Notice of Appeal of Trammel
                D.

Garrett, filed October 18, 2012. Garrett appeals from the trial court’s September 19, 2012

Judgment Entry of Conviction, following pleas of guilty, on two counts of aggravated

robbery (deadly weapon), in violation of R.C. 2911.01(A)(1), felonies of the first degree,

both with firearm specifications.       Garrett received an aggregate sentence of 16 years.

Pursuant to a plea agreement, remaining charges in the indictment were dismissed, and the

court ordered that Garrett’s 16-year sentence be served concurrently to an aggregate term of

30 years to life imposed on multiple counts in another Montgomery County matter (2010 CR

4099/2), as well as a probation revocation matter from Green County (2011 CR 040). The

trial court further ordered restitution herein in the amount of $1,274.00, and it is the order of

restitution that is the subject of this appeal.

        {¶ 2}    On September 10, 2012, Garrett entered his pleas herein, and his plea form

indicates, under the heading “Other sanctions,” as follows: “Restitution to Comfort Suites in

the amount of $540, Greg Edwards in the amount of $170, BP Gas Station in the amount of

$168, and Teresa Lakins in the amount of $396.” Defense counsel indicated to the court

that he waived a presentence investigation. Prior to sentencing in Case No. 2010 CR

4099/2, also on September 10, 2012, defense counsel advised the court that an affidavit of

indigency had been filed in both matters on Garrett’s behalf, and the court indicated that it

had ordered and reviewed a presentence investigation report (“PSI”) in Case No. 2010 CR

4099/2. After imposing sentence therein, and subsequently imposing sentence in the instant

matter, the court indicated as follows:

                Further, in 10CR4058, Court orders that, well, again regarding this

        matter, based on the PSI, I know - - we all know that Mr. Garrett is going to
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       serve a life sentence here. But as far as his health, he’s in good health. I

       know he hasn’t worked in the past, but theoretically, he could obtain a GED

       through prison.

               The Court is going to make a finding that Mr. Garrett has a future

       ability to pay with regard to restitution. And also, this whole issue of prison

       pay comes into play here as well. Theoretically, restitution could be paid

       from prison pay. So the Court orders restitution to Comfort Suites in the

       amount of $540, to Greg Edwards in the amount of $170, and to BP Gas

       Station in the amount of $168, and to Theresa Lakens * * * in the amount of

       $396. (Emphasis added).

       {¶ 3}    Defense counsel objected “to any order of restitution * * * on this person’s

present or future ability to pay considering the sentence given in this Court,” and the

following exchange occurred:

               THE COURT: We have information that Mr. Garrett is in good

       health. He is - - he did complete the eleventh grade. He could, in his time

       incarceration (sic), get his GED so he could - - he actually could take courses.

        We’ve had people go through and get college degrees in prison. I think

       somebody got a law degree, maybe two fellow (sic) got law degrees.

               ***

               MR. SKELTON: * * * So whatever degree he gets or he doesn’t get,

       the likelihood that he’s going to be able to make restitution I believe by law is

       so remote that this Court doesn’t have the authority to order it. * * *
                                                                                           4

               THE COURT: * * * That objection is noted. Again, I’m talking

       about future. I know we - - it’s a lot of speculation, I can see.

               MR. SKELTON: * * * And I think that’s the objection.

               THE COURT: But I think he has a future ability to pay and so the

       Court does order the restitution. I understand no present ability to pay again

       other than possible prison pay. So the exception is noted. (Emphasis added).

       {¶ 4}   The pre-sentence investigation report from Case No. 2010 CR 4099

indicates that Garrett was 20 years old, that he was in good physical health, that he

completed the eleventh grade, and that he “has never held verifiable employment; however,

considered himself self supported. When asked how he supported himself, Mr. Garrett

replied, ‘Things just happened.’” The PSI reflects a lengthy criminal record. The PSI

further reflects that Garrett is the sixth of seven children, and that he has a daughter whom

he “believes is in the custody of Children’s Services; however, has no way of confirming his

suspicion.” The PSI indicates that Garrett “is ordered to pay $61.20 per month [in child

support] per month, and has an arrears of $153, with no payments ever made.” Garrett

smoked one pound of marijuana a week, beginning at age 17, and he used cocaine on one

occasion in December, 2012, according to the PSI. The PSI does not indicate that Garrett has

any assets.

       {¶ 5}    Garrett’s sole assigned error is as follows:

       “THE COURT ERRED WHEN ORDERING RESTITUTION BE PAID BY A

DEFENDANT WHO RECEIVES A THIRTY-YEAR (30) TO LIFE SENTENCE OF

INCARCERATION.”
                                                                                               5

        {¶ 6}     R.C. 2929.18(A)(1) provides that a court imposing sentence upon an

offender for a felony may also sentence the offender to financial sanctions, including

restitution.    R.C. 2929.19(B)(5) provides: “Before imposing a financial sanction under

section 2929.18 of the Revised Code * * * , the court shall consider the offender's present

and future ability to pay the amount of the sanction or fine.” “The trial court does not need

to hold a hearing on the issue of financial sanctions, and there are no express factors that the

court must take into consideration or make on the record.” State v. Culver, 160 Ohio

App.3d 172, 2005-Ohio-1359, 826 N.E.2d 367, ¶ 57 (2d Dist.) (upholding financial

sanctions where this Court could infer that the trial court considered Culver’s ability to pay,

given “Culver's then gainful employment, his long employment history, and the fact that he

had always had the ability to work. At the time of the hearing, Culver was making $500 a

week * * * . The court also inquired into Culver's assets. And finally, in the sentencing entry,

the court deferred payment until two months after Culver was released from prison.”) Id., ¶

59; see also, State v. Frock, 2d Dist. Clark No. 2004 CA 76, 2007-Ohio-1026, ¶ 9 (“Given

the lengthy sentence [of 19 ½ years] imposed in this case - and the dearth of encouraging

information about Frock in the PSI - we are constrained to conclude that the record fails to

demonstrate that the court considered Frock’s present ability to pay restitution [in the

amount of $17,029.00].”) (emphasis added).

        {¶ 7}      “A trial court need not even state that it considered an offender's ability to

pay. State v. Parker, Champaign App. No. 03CA0017, 2004-Ohio-1313, ¶ 42.” State v.

Russell, 2d Dist. Montgomery No. 23454, 2010-Ohio-4765, ¶ 62. “The record should,

however, contain ‘evidence that the trial court considered the offender's present and future
                                                                                                6

ability to pay before imposing the sanction of restitution.’ State v. Robinson, Hancock App.

No. 5-04-12, 2004-Ohio-5346, 2004 WL 2260101, at ¶ 17.” Culver, ¶ 57. “The trial court

may comply with its obligation by considering a presentence investigation report (‘PSI’),

which includes information about the defendant’s age, health, education, and work history.

State v. Ratliff, 194 Ohio App.3d 202, 2011-Ohio-2313, 955 N.E.2d 425, ¶ 12 (2d Dist.).”

State v. Willis, 2d Dist. Montgomery No. 24477, 2012-Ohio-294, ¶ 4.

       {¶ 8}      We note that in Willis, the defendant was 31 years old, he received a two

year sentence, and the trial court ordered restitution in the amount of $20,352.08. When

defense counsel requested that restitution be waived, the trial court responded, “‘it’s

speculative as to the future ability or inability in the way of projecting that so that request is

overruled.’”    Id., ¶ 7. This Court, in reversing and remanding the matter for further

proceedings on the issue of restitution, concluded as follows:

                * * * We appreciate the court’s frustration with the conjecture

       possibly involved in considering future ability to pay. However, this is a

       legislative mandate and, based on the court’s response, it appears that the trial

       court did not “consider” and determine, given the facts before it, whether

       Willis would likely be able to pay $20,352.08 in restitution upon his release

       from prison. We cannot presume that the trial court met its obligation under

       R.C. 2929.29(B)[(5)]. Id.

       {¶ 9}      Herein, we initially note that Garrett was sentenced to an aggregate term of

30 years to life in a companion case, plus 16 years concurrent herein. A PSI reflects that he

has no past employment history or demonstrated ability to work, and he owes an arrearage
                                                                                            7

on his child support obligation. The matter herein bears some similarity to Willis, in that in

imposing sentence, the trial court concluded that restitution “theoretically” could be paid

from “possible” prison employment, that Garrett “could” pursue further education, and

further, the court acknowledged that “it’s a lot of speculation” regarding Garrett’s future

ability to pay. While the State asserts that “Garrett will have the opportunity to earn wages

for work while in the institution, and approved sources may deposit funds into his account,”

from which restitution may be paid, this argument is entirely speculative and ignores the

statutory mandate in R.C. 2929.19(B)(5) that the trial court determine ability to pay. Unlike

Willis, wherein a two-year sentence bears the probability of release and employment,

Garrett’s life sentence does not. As in Frock, there is a dearth of encouraging information

about Garrett in the PSI, other than his good health, and we conclude that the court imposed

a restitution order based upon theoretical scenarios and speculation and not upon the facts

before it. For the foregoing reasons, Garrett’s sole assigned error is sustained.

       {¶ 10} The order of restitution is reversed and vacated. In all other respects the

judgment of conviction is affirmed. All remaining aspects of the trial court’s judgment

remain unaffected.

                                            ..........

FAIN, P.J. and HALL, J., concur.

Copies mailed to:

April F. Campbell
Richard S. Skelton
Hon. Timothy N. O’Connell
