[Cite as State v. Moore, 2019-Ohio-2512.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NO. 2018-T-0056
         - vs -                                  :

 MAURICE MOORE,                                  :

                  Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas.
 Case No. 2013 CR 00775.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
 44481-1092 (For Plaintiff-Appellee).

 Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481-
 1219 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Maurice Moore, appeals from the judgment of conviction entered

in the Trumbull County Court of Common Pleas pursuant to a jury verdict finding him

guilty of Burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2). The

trial court sentenced Moore to a prison term of eight years and ordered him to pay

restitution in the amount of $1,000.00, as well as the costs of prosecution. We affirm the

trial court’s judgment.
         {¶2}   The facts and procedure for this matter have previously been stated in State

v. Moore, 11th Dist. Trumbull No. 2015-T-0072, 2017-Ohio-7024 (“Moore I”) and State v.

Moore, 11th Dist. Trumbull No. 2017-T-0104, 2018-Ohio-1773 (“Moore II”). They are

restated here as follows:

         {¶3}   On June 21, 2012, the home of Moore’s ex-girlfriend, Pam Valentino, was

broken into. Ms. Valentino was not home during the break-in. To gain access into the

home, a front window was broken and the door was kicked in, which shattered the door

frame.

         {¶4}   When Ms. Valentino arrived home, she noticed her television was missing

and the window next to the door was broken. As she looked around her house, she

noticed other things missing, along with droplets of blood all through her home. Ms.

Valentino called the police.

         {¶5}   Ms. Valentino was visibly upset when police arrived. The police created a

report of the incident.     Various items had been stolen from Ms. Valentino’s home,

including a Magnavox television, a Blu-ray player, DVDs, a stereo, a camera, a laptop, a

leather jacket, and a police scanner. The perpetrator left a trail of blood throughout the

house. Police took two samples of blood from the home, one from the floor and the other

from the doorknob. The blood samples were secured, sealed, initialed, and logged as

evidence. The blood samples were sent to the Bureau of Criminal Investigation (“BCI”),

where the samples were run through the Combined DNA Index System (“CODIS”) for

comparison.

         {¶6}   Police received notification from BCI that CODIS revealed a preliminary

match between the DNA in the blood samples sent from Ms. Valentino’s home and




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Moore’s DNA. In addition, the preliminary match was corroborated through thumbprint

comparisons.

      {¶7}     Based on the letter from BCI, police obtained a search warrant for Moore’s

DNA. In executing the warrant, police collected buccal swabs from the inside of each of

Moore’s cheeks. Those swabs were sent to BCI, which confirmed the preliminary results.

      {¶8}     Moore was indicted by the grand jury in the Trumbull County Court of

Common Pleas on one count of Burglary, a felony of the second degree, in violation of

R.C. 2911.12(A)(2). Moore entered a plea of not guilty.

      {¶9}     On January 23, 2014, Moore executed a Crim.R. 44(C) waiver of his right

to counsel. The court appointed stand-by counsel. Subsequently, Moore filed several

pro se motions and attended pretrial hearings on February 6, March 6, and March 13,

2014. Moore was incarcerated in Summit County on other charges from April 2014 until

March 2015. Moore filed additional pro se motions and attended pretrial hearings on

February 26, March 19, and May 7, 2015.

      {¶10} The case proceeded to jury trial on June 1, 2015. On June 2, 2015, the jury

found Moore guilty of Burglary, a felony of the second degree. Moore was sentenced on

June 10, 2015, to eight years in prison “to be served consecutively to any other sentences

imposed upon the Defendant by any other court.” After considering Moore’s ability to pay,

the court ordered Moore to pay $1,000.00 in restitution requested by the victim. The court

additionally stated the cost of prosecution was assessed to Moore, and the trial judge

waived Moore’s fines due to Moore’s indigence. Moore did not request a waiver of his

court costs at the sentencing hearing.




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       {¶11} Thereafter, Moore filed a pro se appeal from the trial court’s sentencing

entry in Moore I. In that appeal, we determined the trial court failed to make all the findings

necessary for the imposition of consecutive sentences under R.C. 2929.14(C)(4) at the

sentencing hearing. Moore I, supra, at ¶52-53. We further held that when imposing a

sentence consecutive to another sentence currently being served, the record should

clearly reflect the nature and extent of the sentence being served in order for the trial

court to properly assess the factors set forth in R.C. 2929.14(C)(4)(a), (b), and (c). Id. at

¶55. We remanded the matter to the trial court for resentencing. Id. at ¶56.

       {¶12} On remand, the trial court did not hold a resentencing hearing. It instead

entered a nunc pro tunc sentencing entry. The entry stated that Moore was sentenced to

eight years in prison “to be served consecutively to the sentence imposed in Summit

County Common Pleas Court Case No. 2013-07-1818.” The nature and extent of the

Summit County sentence was not discernable from the record. On October 31, 2017,

Moore filed a motion objecting to the nunc pro tunc entry. The trial court did not rule on

that motion. Moore II, supra, at ¶6.

       {¶13} Moore filed a second pro se notice of appeal (Moore II). The basis of the

appeal was that it was error to remedy the sentencing through a nunc pro tunc entry. The

state did not oppose the appeal with an opposing brief. Id. at ¶7. In that appeal, we

reversed and remanded for the trial court to resentence Moore by conducting a

sentencing hearing complete with all applicable procedures. Id. at ¶14.

       {¶14} The trial court held that sentencing hearing on May 31, 2018. At the

hearing, the court again sentenced Moore to eight years for the Burglary and also ordered




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Moore to pay the same $1,000.00 in restitution, as well as court costs. No consecutive

sentence was ordered.

       {¶15} Moore filed a timely notice of appeal and raises three assignments of error.

       {¶16} Moore’s first assignment of error states:

       {¶17} “The imposed prison sentence was disproportionate and excessive for the

purposes set forth in Revised Code Sec. 2929.11(A) and not necessary to protect the

public.”

       {¶18} Our standard of review is set forth in R.C. 2953.08(G)(2):

             The court hearing an appeal under division (A), (B), or (C) of this
             section shall review the record, including the findings underlying the
             sentence or modification given by the sentencing court.

             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:

             (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;

             (b) That the sentence is otherwise contrary to law.

       {¶19} “Under this standard, an appellate court upholds the imposed felony

sentence unless: (1) required mandatory findings are clearly and convincingly not

supported by the record; or (2) the sentence is clearly and convincingly contrary to law.”

State v. Aldrich, 11th Dist. Ashtabula No. 2017-A-0033, 2017-Ohio-8944, ¶32 (citations

omitted); see also State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, ¶18,

quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶23.



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       {¶20} Moore does not dispute that the sentence was within the permissible range,

which is a range of two to eight years. See R.C. 2929.14(A)(2). Moore received the

maximum prison term, with the court balancing any mitigating arguments with his

extensive criminal history. Further, the trial court stated it considered the purposes and

principles of felony sentencing and the seriousness and recidivism factors.             The

sentencing entry states that “[t]he Court has considered the record, oral statements, and

the record at trial, as well as the overriding principles and purposes of felony sentencing

under R.C. Section 2929.11, and has balanced the seriousness and recidivism factors of

R.C. Section 2929.12.”

       {¶21} Moore’s prison term is within the permissible range and therefore not

contrary to law. For that reason, we must consider whether the trial court’s findings are

clearly and convincingly not supported by the record. See Wilson, supra, at ¶20; Marcum,

supra, at ¶23. In doing so, we keep in mind that the “trial court is not required to give any

particular weight or emphasis to a given set of circumstances” when considering the

statutory factors. State v. DelManzo, 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856,

¶23.

       {¶22} Moore’s argument is that he was only convicted of a second-degree felony,

which he considers not serious, and that there was no physical harm done to the victim.

       {¶23} The trial court listened to Moore’s arguments and reviewed his sentencing

brief. The trial court then explicitly cited the presentence report; Moore’s extensive

criminal history—34 previous criminal convictions; the mental and economic harm caused

to the victim; Moore’s failure to accept responsibility for the crime; his lack of remorse;

and the high likelihood of Moore to commit future crimes. Moore continued to argue at




                                             6
the sentencing hearing for a new trial, despite our decision in Moore I affirming the

judgment.

      {¶24} Based on these findings—and considering the principles and purposes of

sentencing under R.C. 2929.11 and the seriousness and recidivism factors of R.C.

2929.12—the court found that the term of imprisonment was necessary to protect the

public from future crimes by Moore.

      {¶25} The trial court’s findings are supported by the transcript and the

presentence investigation. Moore has failed to show that the court’s findings are clearly

and convincingly not supported by the record.

      {¶26} Moore’s first assignment of error is without merit.

      {¶27} Moore’s second assignment of error states:

      {¶28} “A prison sentence in this case is an unreasonable and unnecessary burden

on government resources.”

      {¶29} Moore’s next assignment of error is that the trial court did not comply with

R.C. 2929.11(A) because the imposition of a maximum sentence in the present matter is

an unreasonable and unnecessary burden on government resources.

      {¶30} R.C. 2929.11(A) states:

             A court that sentences an offender for a felony shall be guided by the
             overriding purposes of felony sentencing. The overriding purposes
             of felony sentencing are to protect the public from future crime by the
             offender and others, to punish the offender, and to promote the
             effective rehabilitation of the offender using the minimum sanctions
             that the court determines accomplish those purposes without
             imposing an unnecessary burden on state or local government
             resources. To achieve those purposes, the sentencing court shall
             consider the need for incapacitating the offender, deterring the
             offender and others from future crime, rehabilitating the offender, and
             making restitution to the victim of the offense, the public, or both.




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       {¶31} As discussed above, the trial court carefully considered the record, the

presentence report, the sentencing and recidivism factors, and Moore’s conduct at the

sentencing hearing. The court specifically found that its sentence was necessary to

protect the public, that Moore was highly likely to commit future criminal offenses, and

that he was incapable of being rehabilitated.

       {¶32} Therefore, there is no basis in fact to support the assertion that the trial court

failed to consider R.C. 2929.11(A), or that the prison sentence is an unreasonable and

unnecessary burden on government resources.

       {¶33} Moore’s second assignment of error is without merit.

       {¶34} Moore’s third assignment of error states:

       {¶35} “The restitution and court costs imposed infringes upon appellant’s rights

under the Eighth and Fourteenth Amendments to the United States Constitution, and

Article I, Section 9 of the Ohio Constitution.”

       {¶36} Moore’s final assignment of error challenges both the court costs and the

restitution assessed against Moore as being excessive, in violation of his constitutional

rights. For clarity, costs and restitution are discussed separately.

Court Costs

       {¶37} “Effective March 23, 2013, the General Assembly enacted R.C. 2947.23(C),

which states, ‘The court retains jurisdiction to waive, suspend, or modify the payment of

the costs of prosecution, including any costs under section 2947.231 of the Revised

Code, at the time of sentencing or at any time thereafter.’” State v. Braden, Slip Opinion

No. 2018-Ohio-5079, ¶19.




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       {¶38} “R.C. 2947.23 ‘requires a court to assess costs against all convicted

defendants,’ indigent and nonindigent.” Id. at ¶14 (emphasis sic), quoting State v. White,

103 Ohio St.3d 580, 2004-Ohio-5989, ¶8. “‘Therefore, a defendant’s financial status is

irrelevant to the imposition of court costs.’” Id., quoting State v. Clevenger, 114 Ohio

St.3d 258, 2007-Ohio-4006, ¶3.

       {¶39} “The collection of costs is a separate matter.” Id. at ¶15 (emphasis sic).

“Although the clerk of courts is required by statute to attempt to collect court costs from a

nonindigent felony offender, R.C. 2949.14, ‘[t]he General Assembly has neither explicitly

prohibited nor explicitly required collection from indigent defendants.’” Id., quoting White,

supra, at ¶14. The Ohio Supreme Court has inferred “‘from this silence that collection

from indigent defendants is merely permissive. * * * [W]aiver of costs is permitted—but

not required—if the defendant is indigent. It logically follows that a clerk of courts may

attempt the collection of assessed court costs from an indigent defendant.’” Id., quoting

White, supra, at ¶14.

       {¶40} Further, the Ohio Supreme Court has held that “if an indigent criminal

defendant fails to move for the waiver of costs at the time of sentencing, then ‘the issue

is waived and costs are res judicata.’” Id. at ¶16, quoting State v. Clinton, 153 Ohio St.3d

422, 2017-Ohio-9423, ¶239 and State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905,

¶23.

       {¶41} With regard to court costs, the issue was raised on direct appeal in Moore I

in Moore’s third supplemental assignment of error: “[t]he court costs imposed at the

sentencing hearing infringes [sic] upon Appellant’s rights under the Eighth and Fourteenth

Amendments to the United States Constitution, R.C. 2929.18, R.C. 2919(B)(5), R.C.




                                             9
2947.14, and related sections of the Ohio Constitution.” That assignment of error was

found to be without merit in Moore I. Moore I, supra, at ¶60-65. Also, at resentencing

Moore did not object to the imposition of costs.

       {¶42} Therefore, the matter of court costs is barred by the doctrine of res judicata.

Restitution

       {¶43} Our standard of review for felony sentencing as set forth in R.C.

2953.08(G)(2) also applies to restitution in felony sentences. State v. Blas, 11th Dist.

Portage No. 2017-P-0030, 2018-Ohio-2461, ¶13.           Therefore, we will not reverse a

sentence imposing restitution unless it is either contrary to law or clearly and convincingly

not supported by the record.

       {¶44} Under Ohio law, R.C. 2929.18(A)(1) lists restitution as a financial sanction.

“Before imposing a financial sanction under [R.C. 2929.18] * * * the court shall consider

the offender’s present and future ability to pay the amount of the sanction or fine.” R.C.

2929.19(B)(5); State v. Sampson, 11th Dist. Portage No. 2007-L-075, 2007-Ohio-7126,

¶14.   “R.C. 2929.18 does not require a court to hold a hearing on the issue of a

defendant’s ability to pay; rather, a court is merely required to consider the offender’s

present and future ability to pay.” State v. Bielek, 11th Dist. Lake No. 2010-L-029, 2010-

Ohio-5402, ¶11, citing State v. Martin, 140 Ohio App.3d 326, 338 (4th Dist.2000); see

also R.C. 2929.18(E).

       {¶45} In the matter sub judice, while restitution was not directly included in the

assignment of error in Moore I, this court considered the issue and held as follows:

              Here, the trial court assessed appellant’s ability to pay fines and
              restitution. The trial court waived fines because it found appellant
              indigent. With regard to restitution, the trial court stated that it
              “reviewed the relevant documentation, information provided by the



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              adult probation [department] as well as the victim, and finds that the
              defendant will have the future ability to pay restitution as ordered. I
              believe you testified in your trial you have money and you have
              homes, so the Court is going to order the $1,000 * * * that the victim
              has the deductible on insurance for all items that were stolen to be
              reimbursed and grants her a judgment for the $1,000 which she may
              execute on her own.”

Moore I, supra, at ¶64. Therefore, Moore’s challenge of restitution herein is also barred

by res judicata.

       {¶46} Moore’s third assignment of error is without merit.

       {¶47} The judgment of the Trumbull County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.




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