[Cite as State v. Nobles, 2016-Ohio-7529.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-15-1273

        Appellee                                 Trial Court No. CR0201402780

v.

Jamal Nobles                                     DECISION AND JUDGMENT

        Appellant                                Decided: October 28, 2016

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant County Prosecuting Attorney, for appellee.

        Daniel C. Arnold, for appellant.

                                             *****
        OSOWIK, J.

        {¶ 1} This is an appeal from an August 28, 2015 judgment of the Lucas County

Court of Common Pleas, sentencing appellant to a total term of incarceration of 13 years
following appellant’s felony convictions on one count of involuntary manslaughter, in

violation of R.C. 2903.04(A), a felony of the first degree, and one count of participating

in a criminal gang, in violation of R.C. 2923.42(A), a felony of the second degree. For

the reasons set forth below, this court affirms the judgment of the trial court.

       {¶ 2} Appellant, Jamal Nobles, sets forth the following two assignments of error:

              THE TRIAL COURT COMMITTED PLAIN ERROR TO THE

       PREJUDICE OF APPELLANT AT SENTENCING BY IMPOSING

       FINANCIAL SANCTIONS WITHOUT CONSIDERATION OF

       APPELLANT’S PRESENT OR FUTURE ABILITY TO PAY.

              THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

       SENTENCED APPELLANT TO A 13 YEAR TERM OF

       INCARCERATION.

       {¶ 3} The following undisputed facts are relevant to this appeal. On July 5, 2014,

appellant, a longtime member of a local criminal gang, known as the “gangster disciple

folk,” became engaged in an altercation with an individual that appellant believed had

taken narcotics from appellant’s mother. The altercation worsened, appellant pulled out a

loaded firearm, opened fire, and a bystander, Robert Harris, was shot and killed.

       {¶ 4} On November 7, 2014, appellant was indicted on one charge of aggravated

murder, in violation of R.C. 2903.02(B), along with associated firearm and criminal gang

specifications. On July 31, 2015, pursuant to ongoing plea negotiations, appellant

entered guilty pleas to one count of involuntary manslaughter, in violation of R.C.



2.
2903.04(A), a felony of the first degree, and one count of participation in a criminal gang,

in violation of R.C. 2923.42(A), a felony of the second degree. A presentence

investigation was ordered.

       {¶ 5} On August 28, 2015, appellant was sentenced to a ten-year term of

incarceration on the involuntary manslaughter conviction, a six-year term of incarceration

on the criminal gang conviction, to be served concurrently, and a mandatory three-year

consecutive term of incarceration for the associated firearm specification, for a 13-year

total term of incarceration. This appeal ensued.

       {¶ 6} In the first assignment of error, appellant maintains that the trial court erred

in connection to the imposition of costs and financial sanctions against appellant. We do

not concur.

       {¶ 7} In support, although appellant concedes that the trial court was not required

to conduct a hearing in order to determine appellant’s ability to pay, appellant

nevertheless argues without supporting authority that when imposing a 13-year prison

term, the court should have conducted a separate inquiry or hearing in connection to the

financial sanctions.

       {¶ 8} There are various categories of costs which a trial court can order the

appellant to pay: prosecution costs, confinement costs, costs of assigned counsel, and

costs of supervision. State v. Neal, 6th Dist. Lucas No. L-14-1276, 2016-Ohio-854, ¶ 15.




3.
       {¶ 9} Under Ohio law, in order for the cost of confinement to be imposed, the trial

court must, “[C]onsider the offender’s present and future ability to pay the amount of the

sanction or fine.” Id. at ¶ 15. Similarly, the imposition of the costs of assigned counsel

also requires the trial court to consider the appellant’s ability to pay. Id. at ¶ 16. Lastly,

it is well-established that sentencing courts need not conduct a hearing on the matter and

the finding will be upheld so long as the record encompasses some supporting clear and

convincing evidence. Id.

       {¶ 10} In applying these controlling guidelines to the first assignment of error, we

first note that the imposition of the costs of prosecution is mandatory on all those

convicted, regardless of indigency considerations. R.C. 2947.23(A)(1).

       {¶ 11} With respect to the remaining disputed costs, in which ability to pay must

be considered, we note that the record reflects that appellant will have served the

sentence and be released from prison when appellant is approximately 39 years of age.

The record reflects appellant to be able-bodied, attended school through the 12th grade, is

literate, and possesses no known issues which would prohibit appellant’s ability to obtain

employment upon release. Wherefore, we find appellant’s first assignment of error to be

not well-taken.

       {¶ 12} In appellant’s second assignment of error, appellant contends that the

felony felony sentence imposed in this matter was unlawful. We do not concur.

       {¶ 13} It is well-established that appellate court review of a disputed felony

sentence is not conducted pursuant to an abuse of discretion analysis. Rather, R.C.



4.
2953.08(G)(2) statutorily governs felony sentence review. Pursuant to R.C. 2953.08(G),

the record of evidence must be reviewed in order to ascertain whether the disputed felony

sentence was clearly contrary to law or clearly and convincingly based upon relevant

statutory findings not supported by the record. State v. Tammerine, 6th Dist. Lucas. No.

L-13-1081, 2014-Ohio-425, ¶ 21.

       {¶ 14} Pursuant to R.C. 2929.14(A)(1), the permissible maximum term of

incarceration for a first degree felony, such as the involuntary manslaughter conviction in

this case, is 11 years. Thus, the ten-year term of incarceration imposed in this case falls

within the permissible range and is not contrary to law. Pursuant to R.C. 2929.14(A)(2),

the permissible maximum term of incarceration for a second-degree felony, such as the

criminal gang participation conviction in this case, is eight years. Thus, the six-year term

of incarceration imposed in this case falls within the permissible range and is not contrary

to law. Lastly, the three-year consecutive term of incarceration for the firearm

specification is mandatory as imposed. R.C. 2941.145.

       {¶ 15} The record reflects that the trial court properly applied post-release control

and considered the factors of this case, all victim impact testimony, and the presentence

investigation report.

       {¶ 16} In conjunction with the above, we further find that the record reflects that

none of the potentially applicable statutory findings set forth in R.C. 2953.08(G)(2) are

present in this case.




5.
       {¶ 17} R.C. 2929.13(B) applies to fourth or fifth degree felony cases. This case

entails first and second degree felony offenses. As such, those statutory findings are not

relevant to this case. R.C. 2929.13(D) pertains to necessary findings in cases in which a

prison term is not imposed in a second-degree felony case. A prison term was imposed

for the second degree felony in this case, thus those statutory findings are not relevant to

this case.

       {¶ 18} R.C. 2929.14(B)(2)(e) pertains to the sentencing of repeat violent

offenders. This case does not encompass a repeat violent offender specification. As

such, those statutory findings are not relevant to this case. R.C. 2929.14(C)(4) pertains to

the imposition of consecutive sentences. Appellant’s sentence was imposed on a

concurrent basis. As such, those statutory findings are not relevant to this case. Lastly,

R.C. 2929.20(I) pertains to judicial release hearings. This case does not encompass a

judicial release hearing. As such, those statutory findings are not relevant to this case.

       {¶ 19} Based upon the foregoing, we find that the disputed sentence was not

clearly and convincingly based upon relevant statutory findings not supported by the

record and was not otherwise clearly contrary to law. Wherefore, we find appellant’s

second assignment of error not well-taken.

       {¶ 20} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                        Judgment affirmed.



6.
                                                                      L-15-1273
                                                                      State v. Nobles




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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