[Cite as State v. Cornelison, 2014-Ohio-2884.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2013-L-064
        - vs -                                    :

ROBERT J. CORNELISON,                             :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR
000813.

Judgment: Modified and affirmed as modified.


Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Derek Cek, 2725 Abington Road, #102, Fairlawn, OH              44333 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Robert J. Cornelison, appeals the judgment of sentence

entered by the Lake County Court of Common Pleas. For the reasons discussed in this

opinion, we modify the trial court’s judgment and affirm as modified.

        {¶2}     On January 15, 2013, appellant was indicted on three counts of robbery,

felonies of the third degree, in violation of R.C. 2911.02(A)(3), and one count of petty

theft, a misdemeanor of the first degree, in violation of R.C. 2913.02(A)(1). Appellant
entered a plea of not guilty to all charges. Appellant later withdrew his plea and entered

a plea of guilty to all four counts in the indictment. The trial court deferred sentencing

and referred the matter to the Lake County Adult Probation Department for a

presentence investigation report (“PSI”) and a drug and alcohol evaluation.                 Victim

Impact Statements were also prepared pending sentencing.

       {¶3}    On March 14, 2013, the trial court sentenced appellant to two and one-half

years on each count of robbery and six months in jail on the theft charge. The trial court

ordered the robbery counts to be served consecutively to each other, and concurrently

with the term for the theft charge, for an aggregate term of seven and one-half years in

prison. Appellant was also ordered to pay restitution to the victims of his crimes.

       {¶4}    On November 13, 2013, this court granted appellant’s motion for delayed

appeal. Appellant now assigns three errors for this court’s review. His first assignment

of error provides:

       {¶5}    “The trial court’s sentence was clearly and convincingly contrary to law.”

       {¶6}    This court reviews felony sentences pursuant to the two-step approach set

forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26. Under the first prong,

appellate courts “examine the sentencing court’s compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law.” Id. “If this first prong is satisfied, the trial court’s decision in

imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.”

Id.

       {¶7}    With these principles in mind, appellant first contends the trial court’s

sentence was clearly and convincingly contrary to law because it improperly weighed

the seriousness and recidivism factors under R.C. 2929.12 in ordering its sentences.

                                                2
With respect to factors making his conduct less serious, appellant asserts the trial court

did not consider that there was neither physical harm nor an expectation of physical

harm suffered by the victims. He further asserts the trial court failed to consider his

drug problem. With respect to appellant’s likelihood of recidivism, appellant contends

the trial court failed to consider appellant’s genuine remorse.

       {¶8}   In this case, the trial court specifically stated it considered and weighed

the R.C. 2929.12 factors in crafting its sentence. The trial court further set forth a

detailed analysis of the applicable factors which provided a basis for its sentence at

appellant’s sentencing hearing. The court observed:

       {¶9}   Well, this Court has reviewed the presentence report and

              investigation that was prepared, Dr. Rindsberg’s drug and alcohol

              evaluation. I received multiple victim statements, I’ve considered

              each of those. I received a six-page letter from Mr. Cornelison

              himself which I have read and taken into consideration as well as a

              letter just today from Mr. Cornelison’s fiancee’s mother.

       {¶10} I’ve considered the particular facts and circumstances of the

              offense, the nature of these offenses; everything that’s been said

              here in open court today by Ms. Campell on behalf of Mr.

              Cornelison.   Mr. Cornelison himself was given an opportunity to

              address the Court, I’ve considered his comments and the

              recommendation and comments made by the prosecuting attorney.

              This is all being considered in light of the purposes and principles of

              felony sentencing set forth [in R.C.] 2929[.]11. As to the factors in

              [R.C.] 2929[.]12, the Court finds that as to Counts One, Two and

                                             3
      Three, that the victims in each of those counts, the Robbery

      victims, suffered serious psychological harm as a result of the

      conduct involved. I received victim impact statements from each of

      the young ladies involved in the Robbery and they each explained

      to the Court how this has impacted their lives and how it continues

      to impact their lives and that makes the offense much more serious.

{¶11} There is nothing present indicating the offense is less serious.

{¶12} Recidivism factors also causes this Court a lot of concern. The

      Defendant does have a history of criminal convictions as set forth

      by the prosecutor here. The Defendant has been before this Court

      before, gave the Defendant an opportunity on probation, he

      violated. I gave him another opportunity on probation by sending

      him to NEOCAP because that’s what he said he wanted and

      needed. He violated again and I sent him to prison. Got out of

      prison and a year later he’s back at it. Well, not back at it now.

      This time it’s much more serious, the seriousness of his conduct

      has escalated to now we’re at robberies.

{¶13} He has not responded favorably at all to previously imposed

      sanctions. A drug abuse problem relates to the offense. And you

      made a comment, Mr. Cornelison, that the crimes were committed

      by drugs. They’re not committed by drugs. You committed these

      crimes. Drugs don’t commit crimes. They’re related to the offense

      and you’re not doing anything to get help or you just don’t care. I

      mean you put yourself in detox just a few weeks before this

                                     4
       happened.      You have had opportunities as the prosecutor

       explained that many people that are in a similar boat as you don’t

       have. Many people come in here and say, “I have nowhere to turn

       to. I don’t have any money, don’t have any family members. I don’t

       know what to do.” You had that opportunity. Your grandparents

       stuck by you for a long time, giving you opportunities to get your act

       straightened out because you said the exact same thing that you

       said here today; over and over and over. But you haven’t done it.

{¶14} No factors indicating recidivism is less likely.

{¶15} These are felonies of the third degree so there’s no presumptions

       one way or the other concerning probation or prison.

{¶16} You know, Mr. Cornelison, over the course of time that I’ve had you

       in front of me going back to - - when was it? 2007, 2008? 2008,

       you’ve written me many letters all saying the same thing.        You

       wrote me a long six-page letter that I’ve mentioned here, just last

       week I received. When I look at what you’re saying in here and

       what you’re going to do, let me go back to the letter that you wrote

       me in 2009, where you say the exact same thing. Go back to the

       letter you wrote me in 2010 where you say the exact same thing

       here.

{¶17} Here’s what you wrote in 2010, “I want my life back and I’m willing

       to do anything and everything to do so.” I think that’s what you just

       said here now.




                                      5
{¶18} “I’ll do anything I have to do, to make sure I never end up back here

      or in prison. I’ll never forgive myself for hurting those I have hurt

      and I’m hoping for one last chance. Thank you for your time. I’m

      willing to do anything and everything possible.”

{¶19} And then I read your letter that you just wrote me and it’s saying the

      same thing. And your attorney mentioned and you mentioned that

      you were just using a chance at treatment to get out sooner, but

      that’s not what you wrote in these letters to me last time. “Since

      coming to Lorain, I’ve realized I can’t do this on my own. I’m active

      in NA/AA, working on completing my four steps and I’ve regained

      my faith for the first time in thirteen years. I attend church and Bible

      study every week. I’m due to see a psychiatrist that mental health

      referred me to. I also intend on attending anger management. I

      want my life back and am willing to do anything and everything to

      do so. I want to raise my two boys and contribute to society in a

      positive way. I hope to be able to make things right with my family

      and those who have been affected by my drug use and actions.”

{¶20} This is all the same stuff you’re saying now and you didn’t do it

      back in 2009 when you wrote me a letter and you didn’t do it back

      in 2010 when you wrote me a letter. How am I supposed to believe

      you’re going to do it this time? I can’t. And I will not.

{¶21} Especially with the fact that the conduct has now escalated. Before

      we had been talking about Theft offenses, Unauthorized Use of a

      Vehicle, Receiving Stolen Property, now we’re talking about serious

                                      6
             Robberies. And I’m not about to sit here and say, “Oh, okay I am

             going to believe you this time, Mr. Cornelison; that you’re really

             serious about wanting to do this,” when you told me the exact same

             thing over and over in the past.

       {¶22} Therefore, there is only one choice and that is to lock you up for a

             long time to protect our community.

       {¶23} The Court finds prison is consistent with the purposes and

             principles of sentencing. You are not amenable to any available

             community controlled [sic] sanctions. We’ve tried every available

             community control sanction we have and it doesn’t work.

       {¶24} Both R.C. 2929.11 and R.C. 2929.12 provide general guidance for a

sentencing court imposing every felony sentence. State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, ¶36. A court is not mandated to engage in factual findings under the

statutes, but must simply “consider” the statutory factors. Id. at ¶42. To the extent the

record evinces the requisite consideration of the applicable seriousness and recidivism

factors, the court has met its obligation. State v. Arnett, 88 Ohio St.3d 208, 215 (2000).

       {¶25} The court’s monologue demonstrates it gave due and thorough

consideration to all relevant factors in meting out appellant’s sentence.       The court

emphasized that appellant’s drug habit was not a factor making the offenses less

serious because appellant has had multiple opportunities to overcome his addictions via

court-ordered treatment.    Despite these chances, however, appellant began using

again. And, as a result, the court noted, the crimes appellant committed have grown in

severity.   Further, the court emphasized the victims of the crimes experienced

significant psychological harm as a result of appellant’s conduct. The victim impact

                                            7
statements reflected the fear and other emotional/psychological anxieties from which

the victims suffered due to appellant’s actions. In light of this information, appellant’s

conduct is not less serious because he did not inflict physical harm on any of the

victims. Finally, the court considered appellant’s representations in open court and his

letters, both current and previous.      In doing so, the court found appellant, while

ostensibly contrite, had reiterated the same apologies and promises to reform for his

actions in the case sub judice as he had in past cases. The court therefore considered

appellant’s remorse, but found it not particularly credible.       A review of the record

demonstrates the trial court gave proper consideration to the statutory factors under

R.C. 2929.11 and R.C. 2929.12. In this respect, the court’s sentence is not clearly and

convincingly contrary to law.

       {¶26} Appellant further asserts the trial court failed to comply with R.C.

2929.14(C)(4) in imposing consecutive sentences. We do not agree.

       {¶27} After the enactment of H.B. 86, a court is required to make certain factual

findings when imposing consecutive sentences.           Pursuant to R.C. 2929.14(C)(4),

consecutive sentences can be imposed if the court finds (1) a consecutive sentence is

necessary to protect the public from future crime or to punish the offender and (2)

consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public. In addition to these two

factors, the court must find one of the following three factors:

       {¶28} (a) The offender committed one or more of the multiple offenses

              while the offender was awaiting trial or sentencing * * * or was

              under post-release control for a prior offense[;]




                                             8
       {¶29} (b) At least two of the multiple offenses were committed as part of

               one or more courses of conduct, and the harm caused by two or

               more of the multiple offenses so committed was so great or unusual

               that no single prison term for any of the offenses * * * adequately

               reflects the seriousness of the offender's conduct[; or]

       {¶30} (c) The offender’s history of criminal conduct demonstrates that

               consecutive sentences are necessary to protect the public from

               future crime by the offender.

       {¶31} Post H.B. 86, this court has continued to follow the standard of review of

criminal sentences set forth in Kalish. See e.g. State v. Frasca, 11th Dist. Trumbull No.

2011-T-0108, 2012-Ohio-3746, ¶48. The state points out, however, that, post H.B. 86,

other appellate districts have adopted the standard of review set forth in R.C.

2953.08(G)(2) when considering appeals of a trial court’s imposition of felony

sentences. R.C. 2953.08(G)(2) provides:

       {¶32}    The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

       {¶33} (a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

       {¶34} (b) That the sentence is otherwise contrary to law.

                                               9
       {¶35} Because a trial court is statutorily mandated to make findings under R.C.

2929.14(C)(4) before it can impose consecutive sentences, the findings are not within

the court’s discretion. In this respect, post H.B. 86, it follows that the standard set forth

under R.C. 2953.08 is a more appropriate standard for an appellate court’s review of

consecutive sentences.

       {¶36} After reviewing the facts the court found germane to appellant’s sentence,

it made the following findings:

       {¶37} [I]t will be the sentence of this court that on Counts One, Two and

              Three you serve a term in prison of thirty months or two and a half

              years. Each of those sentences shall be served consecutive to

              each other for a total of seven and a half years.

       {¶38} The Court finds that consecutive sentences are necessary to

              protect the public from future crime and to punish the Defendant.

              They are not disproportionate to the seriousness of the Defendant’s

              conduct or to the danger that he poses to the public.

       {¶39} The Court further finds each of the multiple offenses were

              committed as a part of a course of conduct and that the harm

              caused by each of these multiple offenses was so great or unusual

              that no single prison term for any one of the offenses committed as

              part of [the] course of conduct adequately reflects the seriousness

              of his conduct. And further that the Defendant’s history of criminal

              conduct demonstrates that consecutive sentences are necessary to

              protect the public from future crimes by Mr. Cornelison.




                                             10
       {¶40} Appellant    contends    the   trial   court’s   findings   pursuant     to   R.C.

2929.14(C)(4)(b) and (c) are clearly and convincingly contrary to law.              Appellant’s

argument lacks merit.

       {¶41} First, the record demonstrates that appellant committed the three

robberies between November 3, 2012 and November 13, 2012. During each robbery,

appellant led each victim to believe he had a firearm to compel their cooperation. This

timeframe supports the trial court’s finding that at least two of the robberies were part of

a course of conduct. And, although the harm caused by appellant’s actions is difficult to

quantify, the victim impact statements indicate the anxieties suffered by several of the

victims was significant; to wit, one victim quit her job and had nightmares and one

business had to double its staff due to fears the robbery triggered in its employees.

       {¶42} Assuming, however, arguendo, that the foregoing harm does not meet the

heightened harm requirement of R.C. 2929.14(C)(4)(b), the record supports the trial

court’s finding under R.C. 2929.14(C)(4)(c). Specifically, between June 2007 and the

time of the instant offenses, appellant has been convicted of five felonies; namely, two

felony-four thefts, one felony-four receiving stolen property, one felony-five attempted

burglary, and one felony-four domestic violence. As the trial court noted, appellant had

been placed on probation and/or community control on several occasions as a result of

his crimes; each time, however, he was ultimately found in violation.               In light of

appellant’s past criminal record, including his past probation/community control

violations and his failure to respond favorably to treatment for his addictions, the court

did not err in concluding his past criminal conduct made it necessary to protect the

public from his future criminal activity.    Consecutive sentences were consequently




                                            11
justified under R.C. 2929.14(C)(4)(c). We therefore hold the trial court’s imposition of

consecutive sentences was not clearly and convincingly contrary to law.

       {¶43} Appellant’s first assignment of error is overruled.

       {¶44} Appellant’s second assignment of error reads:

       {¶45} “The trial court committed plain error by imposing court costs without

notifying appellant of the possibility of community service in lieu of paying court costs.”

       {¶46} Under his assignment of error, appellant asserts the trial court failed to

comply with the requirements of R.C. 2947.23(A)(1)(a) when it imposed costs. R.C.

2947.23 has been amended since appellant's sentencing, but at the time of sentencing,

it provided, in relevant part:

       {¶47} In all criminal cases, including violations of ordinances, the judge or

magistrate shall include in the sentence the costs of prosecution, including any costs

under section 2947.231 of the Revised Code, and render a judgment against the

defendant for such costs. At the time the judge or magistrate imposes sentence, the

judge or magistrate shall notify the defendant of both of the following:

       {¶48} (a) If the defendant fails to pay that judgment or fails to timely make

              payments towards that judgment under a payment schedule

              approved by the court, the court may order the defendant to

              perform community service in an amount of not more than forty

              hours per month until the judgment is paid or until the court is

              satisfied that the defendant is in full compliance with the approved

              payment schedule.

       {¶49} In relevant part, the 2012 amendment, effective March 22, 2013,

substituted, in the second sentence of the language of section (A)(1)(a), “If” for “At the

                                             12
time,” and substituted “a community control sanction or other nonresidential sanction”

for “sentence,” and also inserted the phrase “when imposing the sanction” to that

sentence.

       {¶50} Because appellant’s sentence was entered before the effective date of the

amendment, former R.C. 2947.23 applies. The state concedes the trial court failed to

meet its obligation under former R.C. 2947.23. As a result, the imposition of court costs

without the proper notification was error. Appellant, however, could receive a complete

remedy by removing the possibility that he can ever be required to perform community

service instead of paying court costs. See e.g. State v. Dye, 11th Dist. Portage No.

2011-P-0097, 2013-Ohio-4285, ¶16-18. In Dye, this court noted: “‘if the performance of

community service is not a possibility, then [appellant] is not prejudiced by the trial

courts having failed to inform him of that possibility.’” Id. at ¶17, quoting State v.

Henderson, 2d Dist. Montgomery No. 24701, 2012-Ohio-3283, ¶12.

       {¶51} Here, at oral argument, the state suggested the foregoing remedy

adopted by the Second District. In light of this recommendation, we sustain appellant’s

assignment of error. The trial court's judgment is accordingly modified by eliminating

the possibility that appellant be subject to community service in lieu of court costs. As

modified, the trial court’s judgment is hereby affirmed.

       {¶52} For his third assignment of error, appellant asserts:

       {¶53} “Appellant was denied effective assistance of counsel.”

       {¶54} Under his final assignment of error, appellant appears to argue his trial

counsel provided ineffective assistance by failing to object to the trial court’s restitution

orders, by failing to file an affidavit of indigency, and by failing to object to the imposition

of court costs without proper notification pursuant to former R.C. 2947.23.

                                              13
       {¶55} For appellant to prevail on his claim of ineffective assistance of counsel,

we must first conclude that counsel’s performance fell measurably below that which

might be expected from an ordinary fallible attorney. Second, we must conclude that

appellant suffered prejudice as a result of counsel’s deficient performance. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To establish prejudice, appellant must show, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. State v. Seiber, 56 Ohio St.3d 4, 11 (1990). A reviewing court indulges a

strong presumption that counsel’s conduct is within the wide range of reasonable

professional representation. Strickland, supra, at 689. An attorney’s arguably reasoned

strategic or tactical decisions do not generally constitute ineffectiveness. State v.

Phillips, 74 Ohio St.3d 72, 85 (1995).

       {¶56} Preliminarily, because appellant suffered no prejudice from the court’s

failure to notify him pursuant to former R.C. 2947.23, counsel was not ineffective for

failing to object to the court’s omission.

       {¶57} Next, appellant claims trial counsel was ineffective for failing to file an

affidavit of indigency. Various courts, including this one, have held a defendant’s status

as an indigent does not prohibit a trial court from imposing financial sanctions such as

restitution. State v. Cooper, 11th Dist. Lake No. 2002-L-091, 2004-Ohio-529, ¶16; see

also State v. Jennings, 8th Dist. Cuyahoga No. 99631, 2013-Ohio-5428, ¶43; State v.

Moore, 12th Dist. Butler No. CA2002-12-307, 2003-Ohio-6255, ¶37.               Given this

authority, counsel’s failure to file an affidavit of indigency cannot be viewed as

unreasonable or prejudicial. Even if counsel had filed the affidavit, the trial court would

have had the authority to impose restitution so long as the amount is consistent with

standards of due process.

                                             14
      {¶58} Finally, appellant claims his counsel was ineffective for failing to object to

the restitution order. R.C. 2929.18(A)(1) provides:

      {¶59} 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, to the adult

             probation department that serves the county on behalf of the victim,

             to the clerk of courts, or to another agency designated by the court.

             If the court imposes restitution, at sentencing, the court shall

             determine the amount of restitution to be made by the offender. 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, provided that the amount the court orders as restitution

             shall not exceed the amount of the economic loss suffered by the

             victim as a direct and proximate result of the commission of the

             offense. If the court decides to impose restitution, the court shall

             hold a hearing on restitution if the offender, victim, or survivor

             disputes the amount. All restitution payments shall be credited

             against any recovery of economic loss in a civil action brought by

             the victim or any survivor of the victim against the offender.

      {¶60} Prior to imposing restitution, a trial court must ensure that the amount is

supported by competent, credible evidence. See State v. Warner, 55 Ohio St.3d 31, 69

                                           15
(1990). Further, due process mandates that the amount of restitution bear a reasonable

relationship to the loss suffered by the victim(s). State v. Albaugh, 11th Dist. Portage

No. 2013-P-0025, 2013-Ohio-5835, ¶10. Where questions are raised regarding the

amount of restitution, the trial court must resolve such issues through an evidentiary

hearing. See R.C. 2929.18(A)(1).

       {¶61} In this case, trial counsel failed to object to the amount of restitution

ordered by the court.     As such, no hearing was held on the issue of restitution.

Appellant points out, however, that there are inconsistencies in the record regarding the

amount of restitution he is obligated to pay. Thus, he argues, had trial counsel objected

to the amount recommended by the prosecutor and later ordered by the court at the

sentencing hearing, evidence would have established the amount did not bear a

reasonable relationship to the loss suffered.

       {¶62} At the sentencing hearing, the trial court entered the following restitution

order based upon the prosecutor’s recommendation and the relative Victim Impact

Statements: $248.18 to Subway; $120.00 to T-N-T Tanning; $350 to Media Meister

Worldwide; and $520.00 to Tye Dye Sky. The amounts awarded to Subway, T-N-T

Tanning, and Media Meister Worldwide are consistent with the amounts reflected in the

PSI.   The amount awarded to Tye Dye Sky, however, is inconsistent with other

statements in the record. While the Victim Impact Statement, provided by the president

of Tye Dye Sky, indicates $520 was taken from the store, the statement taken by police

after the robbery indicated the employee who was robbed believed appellant took

anywhere from “$150-$180.”      And, in appellant’s version of the robbery, he stated he

took “approximately $345” from Tye Dye Sky. Notwithstanding these inconsistencies,

the $520 amount was given by the president of the store, the individual in the best

                                            16
position to identify the actual loss. Although there is a difference in the amount set forth

in the Victim Impact Statement, and the speculative amounts in the PSI, it was within

the court’s discretion to rely upon the amount advanced by the president of the store.

We cannot conclude, under these circumstances, counsel’s performance was deficient

for failing to object to the restitution order.

       {¶63} Appellant’s third assignment of error lacks merit.

       {¶64} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is modified and affirmed as modified.



TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.




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