[Cite as State v. Harris, 2012-Ohio-802.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                Nos. 96460–96461, 96660–96661




                                       STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                                vs.

                                        JAMES HARRIS
                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-535479 and CR-540287

        BEFORE:           Cooney, P.J., Keough, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: March 1, 2012
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ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender

Erika B. Cunliffe
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


AMICUS CURIAE

James L. Hardiman
Anthony W. Scott
ACLU of Ohio, Inc.
Max Wohl Civil Liberties Ctr.
4506 Chester Avenue
Cleveland, Ohio 44103



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Mary McGrath
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
                                           3

COLLEEN CONWAY COONEY, P.J.:

       {¶1} Defendant-appellant, James Harris (“Harris”), appeals the revocation of his

community control sanctions in one case and the resulting imposition of sentence. He

also appeals the denial of two motions to vacate his guilty pleas in two cases. We find

no merit to the appeal and affirm.

       {¶2} This case involves four consolidated appeals arising from two criminal

cases in common pleas court. In CR-535479, Harris was charged on March 19, 2010

with criminal nonsupport for his failure to provide child support to his daughter who is

now emancipated.     In CR-540287, he was charged on July 30, 2010 with criminal

nonsupport for his failure to provide child support to a second daughter.

       {¶3} In September 2010, Harris pled guilty to the indictments in both cases. The

court sentenced him to five years of community control sanctions with conditions that

included verifying five job applications per week until gaining full-time employment,

maintaining employment, and making payments toward the agreed amount of restitution

and support arrearage. In CR-535479, the juvenile court had previously ordered Harris

to pay $397.80 per month toward a child support arrearage of $19,429.12.               In

CR-540287, the juvenile court had previously ordered him to pay $404.39 per month

toward the child support arrearage of $11,988.88.

       {¶4} On December 15, 2010, the court held a community control sanctions

violation hearing. The court told Harris he was in violation but did not “violate” him and
                                                 4

instead allowed community control to continue. 1 (Tr. 6, 9.) The court held another

community control sanctions violation hearing on January 27, 2011. The court found

him to be in violation and sentenced him to a year-long prison term in one case but

continued the community control sanctions in the second case, stayed until Harris was

released from the one-year term of incarceration. Harris appeals the judgments in both

cases.

         {¶5} On March 1, 2011, Harris filed motions to withdraw his guilty pleas in both

cases. The court denied both motions, and Harris appealed.

         {¶6} The four appeals have been consolidated, and together, Harris raises two

assignments of error.

                                     Inability or Unwillingness

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

rights to due process and equal protection when the court found that he had violated

community control without first determining whether Harris had the ability to pay.                In

an amicus brief, the American Civil Liberties Union of Ohio (“ACLU”) makes the same

argument.

         {¶8} Harris did not object at the sentencing hearing to the court’s order of

restitution in either case, nor did he object to the amount he was ordered to pay. As such,



           The docket, however, reflects Harris was not in violation as a result of the December 15th
         1


hearing.
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Harris has waived all but plain error. See, e.g., State v. Williams, 8th Dist. No. 93625,

2010-Ohio-3418, ¶ 8–9.

       {¶9} Crim.R. 52(B) provides that “plain error or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

However, in order to prevail under a plain error analysis, the appellant bears the burden of

demonstrating that the outcome of the proceedings clearly would have been different but

for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of

the syllabus. For the following reasons, we do not find plain error.

       {¶10} R.C. 2929.18(A) provides, in relevant part, that a court may sentence an

offender to a financial sanction, including:

       (1) Restitution by the offender to the victim of the offender’s crime or any
       survivor of the victim, in an amount based on the victim’s economic loss.
       If the court imposes restitution, the court shall order that the restitution be
       made to the victim in open court. * * * If the court imposes restitution, the
       court may base the amount of restitution it orders on an amount
       recommended by the victim, the offender, a presentence investigation
       report, estimates or receipts indicating the cost of repairing or replacing
       property, and other information * * *. If the court decides to impose
       restitution, the court shall hold a hearing if the offender, victim, or survivor
       disputes the amount.

       {¶11} Despite his present assertions, Harris agreed to pay the restitution and

support arrearage in open court at the sentencing hearing.             While explaining the

conditions of his community control sanctions, the court stated:

       The other thing is you’ve got to get full-time employment. You must get
       full-time employment. What does that mean? That means that if you
       don’t have a job, I want you to show — * * *
                                          6


      You have to show five applications a week that you’re applying for a job,
      okay? You have to show what applications you put out there, what efforts
      you’re doing. Because you know what? Quite frankly, some guys say,
      You know what? I owe all this money. I’m not going to work for free.
      Why work? That doesn’t go with me, nor Ms. Stroh. That’s why I have
      her monitoring you.

      Ms. Stroh will monitor you and make sure you’re making the restitution
      payments.

      {¶12} The court further explained that if Harris’s income with a new job is less

than his previous employment as a paralegal at Jones Day, he should apply for a

modification of his child support obligations. The court emphasized, however, that it

expects a payment to be made every month. To that end the court explained:

      [W]hat I’m telling you is I want you working at Burger King, I want you
      working at some store. You need to make payments here. Are you with
      me?

      THE DEFENDANT: Yes, sir.

      {¶13} Finally, the court reiterated the condition that Harris produce evidence of a

good faith job search by submitting copies of five applications per week to his probation

officer. Again, Harris indicated that he understood the court’s expectations. He never

objected to the ordered restitution or challenged the five-applications-per-week

requirement.

      {¶14}    In addition, the record indicates that the court obtained a presentence

investigation report prior to sentencing. The report included information regarding the

juvenile court child support orders, the amount of arrears, and the monthly payment. As
                                            7

previously stated, R.C. 2929.18(A)(1) permits the trial court to base the restitution on an

amount recommended by the presentence investigation report.

       {¶15}    Further, regarding Harris’s claim that the court erred by ordering

restitution without conducting a hearing, R.C. 2929.18(A)(1) states, “[i]f the court

decides to impose restitution, the court shall hold a hearing on restitution if the offender,

victim, or survivor disputes the amount.” (Emphasis added.) No one disputed the

amount of restitution and support arrearage ordered.        Thus, the trial court was not

required to hold a separate hearing on restitution, especially because the arrearage was

established by juvenile court.

       {¶16}     Harris and the ACLU contend that ordering restitution, without

determining whether Harris had the ability to make the ordered payments, violated his

constitutional rights to due process and equal protection. The Ohio and United States

Constitutions prohibit the trial court from incarcerating a person for simply failing to pay

a debt or fine. See, e.g., Bearden v. Georgia, 461 U.S. 660, 667, 103 S.Ct. 2064, 76

L.Ed.2d 221 (1983); Williams v. Illinois, 399 U.S. 235, 244, 90 S.Ct. 2018, 26 L.Ed.2d

586 (1970).

       {¶17}   To imprison someone solely because he is unable to pay a fine also

violates the Equal Protection Clause of the Fourteenth Amendment, because people

without the means to pay fines would receive more severe punishment than those who are
                                           8

capable of paying. See, e.g., Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130

(1971); Walker v. Stokes, 54 Ohio App.2d 119, 123, 375 N.E.2d 1258 (8th Dist.1977).

      {¶18} Both Harris and the ACLU rely on the above-cited cases to support their

arguments. However, they fail to recognize the distinction identified in these cases,

between a simple inability to pay and an intentional failure to seek employment and/or

make payments. In Bearden, the U.S. Supreme Court stated that the issue presented “is

whether a sentencing court can revoke a defendant’s probation for failure to pay the

imposed fine and restitution, absent evidence and findings that the defendant was

somehow responsible for the failure or that alternative forms of punishment were

inadequate.” (Emphasis added.) Bearden at 665. Indeed, the Bearden court concluded

that the reason for nonpayment was critical:

      We hold, therefore, that in revocation proceedings for failure to pay a fine

      or restitution, a sentencing court must inquire into the reasons for the failure

      to pay.    If the probationer willfully refused to pay or failed to make

      sufficient bona fide efforts legally to acquire the resources to pay, the court

      may revoke probation and sentence the defendant to imprisonment within

      the authorized range of its sentencing authority. If the probationer could

      not pay despite sufficient bona fide efforts to acquire the resources to do so,

      the court must consider alternate measures of punishment other than

      imprisonment. Only if alternate measures are not adequate to meet the
                                          9

      State’s interests in punishment and deterrence may the court imprison a

      probationer who has made sufficient bona fide efforts to pay. To do

      otherwise would deprive the probationer of his conditional freedom simply

      because, through no fault of his own, he cannot pay the fine. Such a

      deprivation would be contrary to the fundamental fairness required by the

      Fourteenth Amendment. Id. at 672-673.

      {¶19} The record supports the trial court’s finding that Harris willfully refused to

make any effort to pay his child support obligations by seeking employment. At the time

the court revoked Harris’s community control sanctions, he was 39 years old, had

completed three years of college, and had worked for several years as a paralegal at a

prominent law firm. There was no evidence that he was ill, disabled, or otherwise unable

to work.   In fact, Harris acknowledged working temporary jobs and had periodic

employment during the indictment periods. Yet, he only paid $10 to each victim during

the three-month period between sentencing and his second revocation hearing. Harris

made these payments only after having appeared before the court at the first violation

hearing, where the court reiterated the requirement that he make good faith efforts to

obtain full-time employment by providing five applications per week.

      {¶20} Moreover, Harris failed to provide the five applications as required. He

provided a total of four applications during one four-week period preceding the

December revocation hearing. Although he claimed he had obtained employment three
                                             10

days before the second revocation hearing, he had nothing to verify that employment

except an I.D. Not only did he fail to make court-ordered restitution payments, he also

failed to demonstrate bona fide efforts to acquire the resources to pay. Under these

circumstances, we find no plain error.

       {¶21} The first assignment of error is overruled.

                                          Guilty Plea

       {¶22} In his second assignment of error, Harris argues the court erred in denying

his motions to vacate his guilty pleas. He contends he did not enter his plea knowingly,

intelligently, and voluntarily because he did not know he could raise financial inability to

pay as an affirmative defense.

       {¶23} A post-sentence motion to withdraw a guilty plea may be granted only to

correct a “manifest injustice.” Crim.R. 32.1; State v. Bell, 8th Dist. No. 87727,

2007-Ohio-3276, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).

The defendant bears the burden of establishing the existence of “manifest injustice.”

Id., paragraph one of syllabus. “Manifest injustice” is an extremely high standard that

permits the court to allow a plea withdrawal only in “extraordinary cases.” State v.

Malone, 8th Dist. No. 91439, 2009-Ohio-1364, ¶ 8. A post-sentence motion to vacate a

guilty plea is also left to the discretion of the trial court and will not be reversed absent an

abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
                                           11

       {¶24} Harris claims that if he had known that financial inability to pay the child

support obligation was a defense, he would not have pled guilty. He further argues that

R.C. 2919.21 provides this defense. However, R.C. 2919.21(D) states:

       It is an affirmative defense to a charge of failure to provide adequate
       support under division (A) of this section or a charge of failure to provide
       support established by a court order under division (B) of this section that
       the accused was unable to provide adequate support or the established
       support but did provide the support that was within the accused’s ability
       and means. (Emphasis added.)

       {¶25} Harris fails to recognize that the defense requires the accused to provide

support within his means. Thus, Harris could only have benefitted from this defense if

he had made payments commensurate with his ability and means.                 However, in

CR-540287, the indictment period spanned October 2007 through October 2009, and

Harris made no payments during this two-year period. In CR-535479, the indictment

period spanned February 2008 through January 2010. Harris made only five payments in

2008, ranging from $7.14 to $164.22. According to his exhibit, attached to his motions

to withdraw his guilty plea, he was employed during the indictment periods. Despite a

few paltry payments, the record indicates that Harris failed to provide payments within his

means and ability. As such, he could not have availed himself of the financial hardship

defense, and therefore, the trial court did not abuse its discretion in denying his motions

to withdraw his guilty pleas. Furthermore, the record reflects his alleged inability to pay,

and the court fully considered his circumstances.

       {¶26} The second assignment of error is overruled.
                                           12

      Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


____________________________________________________
COLLEEN CONWAY COONEY, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY
