[Cite as State v. Warnka, 2016-Ohio-7423.]




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


State of Ohio                                    Court of Appeals No. L-15-1108

        Appellee                                 Trial Court No. CR0201402037

v.

Scott D. Warnka                                  DECISION AND JUDGMENT

        Appellant                                Decided: October 21, 2016

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                             *****

        JENSEN, P.J.

        {¶ 1} Defendant-appellant, Scott D. Warnka, appeals the March 27, 2015

judgment of the Lucas County Court of Common Pleas. For the reasons that follow, we

reverse, in part, and affirm, in part.
                                     A. Background

       {¶ 2} Warnka was charged with murder and obstructing justice in connection with

the stabbing death of Thomas Przybysz. On March 5, 2015, he and the state reached an

agreement whereby Warnka would enter a plea of guilty to the lesser-included offense of

involuntary manslaughter, a violation of R.C. 2903.04(A) and (C), with the remaining

charges to be dismissed. In exchange, Warnka agreed to testify against his co-defendant.

       {¶ 3} On March 26, 2015, the trial court sentenced Warnka to a prison term of 11

years, five years’ postrelease control, and “applicable costs of supervision, confinement,

assigned counsel, and prosecution as authorized by law.” His conviction and sentence

were memorialized in a judgment entry journalized on March 27, 2015. Warnka

appealed and assigns the following errors for our review:

                                          I

              The trial court committed error to the prejudice of Appellant by

       imposing court costs and financial sanctions without consideration of

       Appellant’s present or future ability to pay.

                                          II

       The trial court erred to the prejudice of Appellant by imposing a maximum

       sentence.




2.
                                   B. Law and Analysis

                      1. The imposition of costs without a hearing.

       {¶ 4} In his first assignment of error, Warnka argues that the trial court erred in

imposing costs and financial sanctions without considering his present or future ability to

pay. He acknowledges that under R.C. 2947.23, the trial court is required to assess the

costs of prosecution in all criminal cases against all convicted defendants regardless of

their financial status and that no hearing is required before ordering the payment of court

costs. He contends, however, that under R.C. 2929.18(A)(5)(a) and 2929.19(A)(5), the

trial court was required to conduct a hearing with respect to his ability to pay the costs of

confinement and that it failed to consider his current or future ability to pay those costs.

       {¶ 5} At the sentencing hearing, the trial court orally informed Warnka: “Because

you have the ability to work we do order you to pay the costs.” The court did not specify

what “costs” Warnka must pay. Counsel orally moved to stay costs and fines until

Warnka’s release. The court called counsel to the bench. Afterwards, it announced:

              The court finds there are minimum wages in there and any court

       costs he shall pay. The court has not imposed a fine. He has had retained

       counsel, so I am not certain what the costs are in this case. We note your

       exception. That request to stay the fines until released from the

       penitentiary are denied.




3.
       {¶ 6} The judgment entry provides as follows with respect to costs:

              Defendant found to have, or reasonably may be expected to have, the

       means to pay all or part of the applicable costs of supervision, confinement,

       assigned counsel, and prosecution as authorized by law. Defendant ordered

       to reimburse the State of Ohio and Lucas County for such costs. This order

       of reimbursement is a judgment enforceable pursuant to law by the parties

       in whose favor it is entered. Defendant further ordered to pay the costs

       assessed pursuant to R.C. 9.92(C), 2929.18, and 2951.021. Notification

       pursuant to R.C. 2947.23 given.

       {¶ 7} As we understand it, Warnka concedes that the costs of prosecution were

properly imposed. And it appears that counsel costs are not at issue given the indication

in the record that trial counsel was retained. Thus, Warnka’s challenge is limited to the

imposition of the costs of confinement. The state’s brief omits any discussion of the

costs of confinement.

       {¶ 8} R.C. 2929.18(A) permits a court to impose financial sanctions, including:

              Reimbursement by the offender of any or all of the costs of sanctions

       incurred by the government, including the following: (ii) All or part of the

       costs of confinement under a sanction imposed pursuant to section 2929.14,

       2929.142, or 2929.16 of the Revised Code, provided that the amount of

       reimbursement ordered under this division shall not exceed the total amount




4.
         of reimbursement the offender is able to pay as determined at a hearing and

         shall not exceed the actual cost of the confinement;

         {¶ 9} In State v. Lincoln, 6th Dist. Lucas No. L-15-1080, 2016-Ohio-1274, ¶ 14,

we explained that “before the costs of confinement and court-appointed counsel are

imposed on an offender, the trial court must find that the offender has the ability to pay,

and that finding must be supported by clear and convincing evidence in the record.”

“Clear and convincing evidence” is a degree of proof beyond a mere “preponderance of

the evidence,” but requires less certainty than is required under a “beyond a reasonable

doubt” standard. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus. “Clear and convincing evidence” is proof “which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Additionally, in State v. Hartsell, 6th Dist. Lucas Nos. L-03-1039,

L-03-1040, 2004-Ohio-1331, ¶ 17, we explained that the court cannot order financial

sanctions, including the cost of confinement, without determining the amount of those

costs.

         {¶ 10} Here, the trial court at the sentencing hearing made no specific reference to

costs of confinement, and certainly did not determine the amount of those costs.

Furthermore, the court’s discussion of Warnka’s ability to pay was limited to its

observation that Warnka would be able to work while in prison.

         {¶ 11} We will reverse a trial court’s decision to impose costs and financial

sanctions if it is contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b). State v. Farless, 6th




5.
Dist. Lucas Nos. L-15-1060, L-15-1061, 2016-Ohio-1571, ¶ 4. Because we find that the

court imposed the costs of confinement without specifying the actual costs of

confinement and the amount Warnka is able to pay, we find this portion of his sentence

contrary to law. See State v. Scott, 6th Dist. Lucas No. L-01-1337, 2003-Ohio-1868, ¶ 10

(remanding to trial court where “the record of the sentencing hearing fails to reveal the

costs of confinement”); see also State v. Slater, 4th Dist. Scioto Case No. 01CA2806,

2002-Ohio-5343, ¶ 14 (“We also find no indication what the cost of confinement will be.

As appellant points out, this too (i.e. determination of amount) is required by statute at

the time of sentencing.”).

       {¶ 12} We find Warnka’s first assignment of error well-taken. We remand this

matter to the trial court for resentencing as to the imposition of the costs of confinement.

                        2. Imposition of the maximum sentence.

       {¶ 13} R.C. 2929.14(A)(1) provides that for a “felony of the first degree, the

prison term shall be three, four, five, six, seven, eight, nine, ten, or eleven years.” The

court imposed a prison term of 11 years. In Warnka’s second assignment of error, he

argues that the trial court erred in imposing a maximum sentence.              Although he

acknowledges that his sentence falls within the parameters set forth in R.C.

2929.14(A)(1), he insists that the trial court failed to weigh his participation as a state’s

witness in his co-defendant’s trial as a mitigating factor.

       {¶ 14} The trial court stated that it had thought “very long and hard” about the

appropriate sentence to impose and it went to great lengths to explain why it had decided




6.
to impose the maximum prison sentence. It took note of Warnka’s criminal history; the

various times that he failed to avail himself of court-ordered substance abuse treatment;

his many community control and post-release control violations; his tendency to blame

others for his poor choices; his failure to maintain employment and his delay in obtaining

his GED; letters it received from the victim’s family, including his nine-year-old

daughter; and the fact that the victim was acting as a confidential informant when he was

murdered. The court found it “extremely vial (sic)” that Warnka had exacted revenge

against a confidential informant, and expressed concern over the harm caused to the

justice system as a result. The court explained:

              When we look at all these matters pursuant to statute and rule we

       find that the presumption of state incarceration has not been rebutted. We

       further find that pursuant to statute that the shortest prison term possible

       will demean the seriousness of the offense and will not adequately protect

       the public and therefore we do impose a greater term. And the homicide,

       confidential informant, brutally murdered, this court can’t think of the

       worst form of offense for the charge of involuntary manslaughter. When

       we apply all of the criteria, factors which we must consider, we find that the

       only sentence in this case is as follows: You’re ordered committed to the

       Ohio Department of Rehabilitation and Correction in Orient, Ohio for the

       maximum period of 11 years. You have your life, and he does not. You

       told the law enforcement system, don’t work with confidential informants.




7.
       {¶ 15} The court also specifically stated that it had considered R.C. 2929.11,

dealing with the principles and purposes of sentencing; R.C. 2929.12, dealing with the

seriousness and recidivism factors; and additional factors reflected in R.C. 2929.13. The

judgment entry of sentencing reflects that all required factors were considered.

       {¶ 16} The trial court was well-aware of the fact that Warnka had testified against

his co-defendant. It spent much time discussing this with Warnka during the plea

hearing. In addition, defense counsel reminded the court at the sentencing hearing that

Warnka had cooperated at his co-defendant’s trial. We find that the trial court did not

ignore this; it simply concluded that his cooperation—offered in exchange for his plea to

the lesser-included offense of involuntary manslaughter instead of murder—did not

outweigh the many circumstances justifying the maximum sentence.

       {¶ 17} Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or

otherwise modify a sentence or may vacate the sentence and remand the matter to the

sentencing court for resentencing 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.




8.
       {¶ 18} The Supreme Court of Ohio in State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124, provided guidance to reviewing courts in determining

whether a sentence is contrary to law. State v. Tammerine, 6th Dist. Lucas No. L-13-

1081, 2014-Ohio-425, ¶ 15. In Kalish, the court determined that the sentence at issue

was not contrary to law where the trial court considered the R.C. 2929.11 purposes and

principles of sentencing, considered the R.C. 2929.12 seriousness and recidivism factors,

properly applied postrelease control, and imposed a sentence within the statutory range.

Id.

       {¶ 19} Here, the court properly considered R.C. 2929.13(D); the remaining

statutory provisions referenced in R.C. 2953.08(G)(2)(a) are not at issue. Turning to R.C.

2953.08(G)(2)(b), the trial court imposed a sentence within the statutory range,

considered R.C. 2929.11 and 2929.12, and properly imposed postrelease control. We

find no error in the trial court’s sentence.

       {¶ 20} Warnka’s second assignment of error is not well-taken.

                                       C. Conclusion

       {¶ 21} We find Warnka’s first assignment of error well-taken, and we remand this

matter to the trial court so that it can resentence Warnka with respect to the imposition of

costs of confinement. If these costs are to remain part of Warnka’s sentence, more detail

will need to be developed as to the costs of confinement and Warnka’s ability to pay. We




9.
find Warnka’s second assignment of error not well-taken and affirm the 11-year prison

term imposed by the court and memorialized in its March 27, 2015 judgment. Warnka

and the state are ordered to share in the costs of this appeal under App.R. 24.


                                                                Judgment reversed, in part,
                                                                     and affirmed, in part.




       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
Arlene Singer, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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