[Cite as State v. Fomby, 2013-Ohio-2821.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :       OPINION

                 Plaintiff-Appellee,             :
                                                         CASE NO. 2012-L-073
        - vs -                                   :

CARVELL J. FOMBY,                                :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR
000263.

Judgment: Affirmed in part; reversed in part and remanded.


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

Ruth R. Fischbein-Cohen, 3552 Severn Road, Suite 613, Cleveland Heights, OH
44118 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the final judgment in a criminal proceeding before the

Lake County Court of Common Pleas. Appellant, Carvell J. Fomby, seeks reversal of

his conviction on multiple counts of aggravated burglary and aggravated robbery, and

one count of felonious assault. In part, appellant contends that his conviction on all

counts was either not supported by sufficient evidence, or was against the manifest

weight of the evidence.
         {¶2}   This case concerns a home invasion during the late evening of April 5,

2011. The home is on Richmond Street in Painesville, Ohio, and was being rented by

Russell Perry and Shaquetta Page. Shaquetta’s three minor children also resided in the

home. In addition, one of Russell’s minor daughters would occasionally spend the night

there.

         {¶3}   Even though the couple’s home had two entranceways, the back door was

primarily used to enter the residence. The back door leads into the kitchen. Upon

exiting the kitchen and moving forward, there are the dining room and then the living

room. At one side of the living room is a staircase leading to the second floor, where

three bedrooms are located.

         {¶4}   On the evening at issue, Russell and Shaquetta had a late dinner with her

three children and one of Russell’s daughters. When the meal ended shortly before

11:00 p.m., Shaquetta and the four children went upstairs to prepare for bed. Russell

stayed downstairs to clean the kitchen. At some point, Russell took the trash outside to

a container located near the back door.

         {¶5}   As Russell was re-entering the home and beginning to shut the back door,

two men pushed on the door and forced their way into the kitchen. Initially, the first man

pushed Russell backward with his hands. Russell tried to resist. However, the second

man produced a small silver firearm and placed the barrel directly on Russell’s

forehead. The second man then stated directly to Russell: “[Y]ou know what it is, we

want everything, * * *.”

         {¶6}   Although Russell no longer tried to resist, the two men continued to push

him across the room until he fell on the floor by the refrigerator. During the course of




                                             2
their confrontation, the two men hit Russell on his head a number of times, and he

sustained a number of scrapes and bruises on his face and skull.

       {¶7}    When Russell was finally subdued, he was lying on his stomach with his

face pressed on the floor. The first man sat on top of Russell and held his head down.

Initially, Russell thought that the first man was pressing the barrel of a firearm to the

back of his head; so he made no attempt to get up for a while. While lying there,

Russell saw the second man leave the kitchen and walk through the dining room and

living room.

       {¶8}    After going through the living room, the second intruder went up the stairs

and started down the hallway toward Shaquetta’s bedroom. As the man came toward

her, Shaquetta was talking on her cell phone to her sister. At first, Shaquetta believed

that the person entering her room was her brother; hence, she told her sister goodbye

and “hung up” the phone. She then turned toward the second man and quickly realized

her mistake. However, before she could do anything, the second man again pulled out

the small firearm, placed it against Shaquetta’s head, and said that he was going to rob

her.

       {¶9}    Immediately after making the statement to Shaquetta, the second intruder

heard a police siren going off in the distance. As a result, he grabbed the phone from

Shaquetta’s hands, ran over to the bedroom dresser, and momentarily looked for

something else to take. When he did not see anything, he ran into the hallway and

down the stairs. After quickly checking upon the welfare of the children, Shaquetta

followed the second man to the first floor.

       {¶10} While the second man was upstairs, Russell realized that the first man did




                                              3
not have a gun, but was instead forcing Russell’s head down with his knuckles. Russell

therefore began to resist again, and was able to throw the first intruder off. Upon getting

to his feet, Russell was ultimately able to shove the first man out the back door. The

first man then ran through the back yard and leaped over a fence into a neighbor’s yard.

Although Russell followed the first man outside and saw him go over the fence, he did

not try to chase him any further. Rather, he ran down his driveway, intending to go

across the street and use a phone in a local store to call the police.

       {¶11} After going downstairs, the second intruder ran to the kitchen and went out

the back door.    Russell did not see the second man leave the home.             However,

Shaquetta followed the second man out the back door and saw him leap over the fence

on the side of their yard. She then walked toward the street at the front of the home and

met Russell in the middle of the roadway. Since Russell’s daughter had used her cell

phone to call the police while the incident was ongoing, the police arrived at the scene

within a few minutes of the second intruder leaving.

       {¶12} Neither of the intruders were apprehended the evening of the incident. In

speaking to the police upon their arrival at the scene, Russell stated that he previously

had seen the first intruder, i.e., the man who had held him down on the kitchen floor, at

various places in the neighborhood, but could only remember his first name. Similarly,

Shaquetta told the police that she had recognized the intruder with the firearm from the

neighborhood. Although she also tried to provide a first name for the second man, the

name was not sufficient to enable the police to determine his identity. In addition, both

Russell and Shaquetta stated that they had noticed during the incident that the second

intruder had a “teardrop” tattoo by his eyes.




                                                4
      {¶13} Over the next three days, Russell and Shaquetta spoke to a number of

family members or friends in an attempt to identify the correct name of the intruder who

wielded the firearm. Eventually, the couple learned that the first name of the individual

they were describing was “Carvell.”     After they relayed this new information to the

police, appellant was immediately identified as a possible suspect. In light of this, the

police had Shaquetta come to the police department so that she could review a photo

array of possible suspects.    When she first went through the array of six photos,

Shaquetta did not identify appellant as the intruder with the firearm. She reviewed the

photos a second time, however, and identified appellant as the man who held the

firearm to her head.

      {¶14} In September 2011, the county grand jury returned a six-count indictment

against appellant. The charges included two counts of aggravated burglary, a felony of

the first degree under R.C. 2911.11(A), three counts of aggravated robbery, a felony of

the first degree under R.C. 2911.01(A), and one count of felonious assault, a felony of

the second degree under R.C. 2903.11(A). Each of the counts also contained a firearm

specification, under which it was alleged that appellant displayed or used a firearm while

committing the underlying offense.

      {¶15} Ultimately, a three-day jury trial was held in May 2012. Appellant was

tried together with his co-defendant, Ricci Lewis, who was identified as the “first man”

who entered the home during the incident. Russell and Shaquetta were the primary

witnesses for the state. They both testified that they were certain that appellant was the

individual who held the firearm to their heads. Appellant was found guilty of all six

counts.




                                            5
       {¶16} After a presentencing report was prepared, the trial court held a

sentencing hearing.    At the outset, the trial court concluded that the two counts of

aggravated burglary would be merged for purposes of sentencing. As to the remaining

three counts relating solely to Russell, the court further held that two of the aggravated

robbery counts and the sole felonious assault count would be merged. As a result,

appellant was only sentenced on a single count of aggravated burglary, two counts of

aggravated robbery, and two firearm specifications. In addition to imposing two three-

year terms on the firearm specifications, the trial court ordered appellant to serve two

concurrent terms of six years on the aggravated robbery counts, and a five-year term on

the remaining aggravated burglary count, to be served consecutively to the “aggravated

robbery” terms, for an aggregate prison term of 17 years.

       {¶17} In appealing both his conviction and sentence, appellant has raised four

assignments of error for review:

       {¶18} “[1.] The trial court erred in convicting Carvell Fomby as there was legally

insufficient evidence to support a conviction.

       {¶19} “[2.] The trial court committed prejudicial error when it failed to merge the

multiple counts of aggravated robbery and aggravated burglary, as allied offenses of

similar import, in violation of O.R.C. 2941.25(A).

       {¶20} “[3.] The trial court committed prejudicial error when it refused to waive

court costs, although Mr. Fomby was indigent; and when advising Carvell Fomby of his

financial obligations during sentencing, it failed to inform the statutory R.C. 2947.23

requirements.

       {¶21} “[4.] The conviction was against the manifest weight of the evidence,




                                             6
lacking credibility.”

       {¶22} Under his first assignment, appellant contests the sufficiency of the state’s

evidence regarding the presence of a firearm during the course of the home invasion.

As his primary argument on this point, he asserts that there was no evidence to support

a finding that he had actual possession of the firearm while he was inside the residence.

According to appellant, Russell Perry’s trial testimony could only be interpreted to show

that he was the man who sat upon Russell’s back and forced his face into the kitchen

floor. Appellant further emphasizes that, under Russell’s version of the events, the man

on his back did not have a gun and was only using his hands to keep Russell subdued.

       {¶23} As part of his direct testimony, Russell stated that he eventually realized

that the intruder who was sitting upon his back did not have a firearm, but instead was

employing his hands and knuckles to force Russell’s face into the floor. Russell further

testified that he was able get this particular intruder off his back, and then force the man

out the back door before he could go into any other room in the home.

       {¶24} However, in giving the foregoing testimony about the person on his back,

Russell was not referring to appellant. Rather, Russell was clearly referring to the co-

defendant, Ricci Lewis. There is no dispute that Russell identified appellant as the man

who placed the barrel of a small silver firearm on forehead.         Furthermore, Russell

clearly testified that appellant was the intruder who left the kitchen after he had been

subdued and was lying on the floor.

       {¶25} In addition, as part of her trial testimony, Shaquetta specifically identified

appellant as the man who came into her bedroom and placed the barrel of a firearm on

her head to ensure her cooperation in the robbery. Hence, the state clearly presented




                                             7
evidence from which the jury could find that it was appellant who had a small firearm in

his possession.

       {¶26} As a separate argument under this assignment, appellant states that there

was a dispute under Russell’s trial testimony regarding whether either of the intruders

had a firearm when they entered the home. However, in raising this point, he only cites

to that aspect of Russell’s testimony in which he indicates that Ricci Lewis, the man who

kept him subdued on the kitchen floor, did not have a firearm. Considered as a whole,

Russell’s testimony was not confusing as to the fact that appellant had the firearm and

Lewis did not.

       {¶27} “‘Sufficiency’ challenges whether the prosecution has presented evidence

on each element of the offense to allow the matter to go to the jury, while ‘manifest

weight’ contests the believability of the evidence presented.

       {¶28} “‘“(* * *) The test (for sufficiency of the evidence) is whether after viewing

the probative evidence and the inference[s] drawn therefore in the light most favorable

to the prosecution, any rational trier of fact could have found all the elements of the

offense beyond a reasonable doubt.        The claim of insufficient evidence invokes an

inquiry about due process. It raises a question of law, the resolution of which does not

allow the court to weigh the evidence. * * *”’ (Emphasis added.)” State v. Schlee, 11th

Dist. No. 93-L-082, 1994 Ohio App. LEXIS 5862, *13-14 (Dec. 23, 1994).

       {¶29} Any rational trier of fact could have found from the testimony that appellant

had a firearm in his possession when he entered the home with Ricci Lewis. Therefore,

appellant’s first assignment is not well taken.

       {¶30} Since appellant’s fourth assignment also asserts a challenge to the legal




                                             8
propriety of the state’s evidence, it will be addressed next. Specifically, he submits that

his conviction for aggravated robbery concerning Shaquetta was against the manifest

weight of the evidence because her testimony was simply unbelievable. According to

appellant, Shaquetta’s statements as to his presence in her upstairs bedroom should

have been rejected by the jury because it directly conflicted with Russell’s testimony

that appellant was the intruder who sat upon him on the kitchen floor and was chased

out the back door without ever going upstairs.

       {¶31} As was discussed under the first assignment, appellant’s characterization

of Russell’s testimony is not supported. That is, Russell did not testify that appellant

was the man who sat upon him after he was initially subdued in the kitchen. Instead,

Russell clearly stated that it was Ricci Lewis who stayed in the kitchen throughout the

entire incident, and that it was appellant who left the kitchen and went toward the front

of the home where the staircase was located. To this extent, there was no conflict

between Russell’s and Shaquetta’s testimony.

       {¶32} The    respective   testimony of     Russell and     Shaquetta    had some

inconsistencies.   However, none of these inconsistencies were so critical to the

testimony as to render Russell or Shaquetta unbelievable witnesses. As to the critical

point, though, both identified appellant as possessing a firearm. Therefore, the record

does not support the conclusion that the jury abused its discretion in believing the

respective testimony of the two primary state witnesses.

       {¶33} As a general proposition, a finding of guilt in a criminal action can only be

reversed as against the manifest weight of the evidence when the record shows that the

jury lost its way in determining the credibility of witnesses and resolving any conflicts in




                                             9
the evidence. Schlee, 1994 Ohio App. LEXIS 5862, at *14-15. Any inconsistencies in

the testimony of Russell and Shaquetta were not sufficient to justify the conclusion that

the jury lost its way in believing the primary assertions in their testimony. For this

reason, appellant’s fourth assignment lacks merit.

       {¶34} Under his second assignment, appellant contends that the trial court erred

in not merging the single count of aggravated burglary into the two remaining counts of

aggravated robbery. Without addressing the question of whether the foregoing crimes

are allied offenses of similar import, appellant maintains that separate sentences could

not be imposed for all three remaining offenses because the evidence established that

the aggravated burglary and the two aggravated robberies were committed as part of

one continuous criminal act.

       {¶35} The legal effect of a defendant’s conviction on multiple crimes is governed

by R.C. 2941.25:

       {¶36} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

       {¶37} “(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.”

       {¶38} In its most recent pronouncement on the “allied offenses” issue, a plurality

of the Supreme Court of Ohio summarized its general application of R.C. 2951.25:




                                           10
       {¶39} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct. * * *. If the offenses correspond to such a

degree that the conduct of the defendant constituting the commission of one offense

constitutes commission of the other, then the offenses are of similar import.

       {¶40} “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

‘a single act, committed with a single state of mind.’ * * *.

       {¶41} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

       {¶42} “Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge.” (Citations omitted and emphasis sic.)

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶48-51.

       {¶43} Although the foregoing analysis was only followed by a plurality of the

Supreme Court, this court expressly adopted the Johnson analysis in State v. Muncy,

11th Dist. No. 2011-A-0066, 2012-Ohio-2830.

       {¶44} In our case, the trial court determined that the aggravated burglary charge

under count one of the indictment, which was merged with the other aggravated

burglary count, could not be merged with the remaining aggravated robbery count as to

Russell because appellant had a separate animus as to each offense. Before this court,

appellant does not contest the fact that the trial court was not obligated to merge the




                                             11
two remaining counts of aggravated robbery because those two crimes involved two

different victims. Hence, our analysis will focus upon the merits of the trial court’s ruling

as to whether the two remaining counts relating solely to Russell, aggravated robbery

and aggravated burglary, should have been merged.

       {¶45} Under the first count, appellant was charged with aggravated burglary

under R.C. 2911.11(A)(1), which provides:

       {¶46} “(A) No person, by force, stealth, or deception, shall trespass in an

occupied structure * * *, when another person other than an accomplice of the offender

is present, with purpose to commit in the structure * * * any criminal offense, if any of the

following apply:

       {¶47} “(1) The offender inflicts, or attempts or threatens to inflict physical harm

on another; * * *.”

       {¶48} Under the second count of the indictment, appellant was charged with

aggravated robbery pursuant to R.C. 2911.01(A)(1), which states:

       {¶49} “(A) No person, in attempting or committing a theft offense, as defined in

section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or

offense, shall do any of the following:

       {¶50} “(1) Have a deadly weapon on or about the offender’s person or under the

offender’s control and either display the weapon, brandish it, indicate that the offender

possesses it, or use it; * * *.”

       {¶51} It is possible to commit aggravated burglary and aggravated robbery with

the same conduct. However, a trial court can still impose separate prison terms for the

two offenses if, pursuant to R.C. 2941.25(B), the crimes were not committed by the




                                             12
same conduct. The two offenses are allied and must be merged for sentencing only

when “the offenses were committed by the same conduct, i.e., ‘a single act, committed

with a single state of mind.’” Johnson, 2010-Ohio-6314, at ¶49, quoting State v. Brown,

119 Ohio St.3d 447, 2008-Ohio-4569, ¶50.

      {¶52} In our case, the remaining aggravated robbery count relating to Russell

was based upon the allegation that appellant had a deadly weapon in his possession

and displayed or brandished it. Appellant first displayed the firearm when he placed it

on Russell’s head. It was also at that point that appellant told Russell that he and Lewis

wanted “everything” Russell had, stating his intent to commit a theft offense against him.

That conduct alone satisfied all elements of aggravated robbery under R.C.

2911.01(A)(1).

      {¶53} Under R.C. 2911.11(A)(1), the aggravated burglary as to Russell was

completed when appellant subsequently inflicted physical harm to Russell in the

ensuing scuffle ending by the refrigerator. Given that the physical harm element for

aggravated burglary was committed by additional conduct which was not needed to

prove the aggravated robbery, the counts do not merge.

      {¶54} In other words, separate sentences are permitted for the two offenses

against Russell because the commission of the two crimes were not based upon the

exact same conduct; i.e., an additional act was performed which, although unnecessary

for the commission of aggravated robbery, completed the offense of aggravated

burglary. If a separate penalty could not be imposed for the aggravated burglary, it

would essentially mean that appellant and Lewis would be free to inflict physical harm

upon Russell without having to face additional penalty. Such a result was clearly not




                                           13
intended by the General Assembly in enacting R.C. 2941.25(B). See State v. Frazier,

58 Ohio St.2d 253 (1979); State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶66;

State v. ONeil, 11th Dist. No. 2010-P-0041, 2011-Ohio-2202, ¶46-51.

       {¶55} In light of the foregoing, the trial court correctly imposed separate

sentences regarding the aggravated burglary count and the aggravated robbery count

relating to Russell Perry. Similarly, no error occurred when the trial court imposed a

three-year term on two of the three remaining firearm specifications, consistent with

R.C. 2929.14(A)(1)(g). Therefore, appellant’s second assignment is also without merit.

       {¶56} Under his third assignment, appellant maintains the trial court erred in

denying his motion to waive payment of court costs. He argues that he was entitled to

such relief because he will be incarcerated for a lengthy period of time under the

imposed sentence.

       {¶57} At the end of the sentencing hearing, defense counsel orally moved the

trial court to suspend all court costs.   In support of the request, defense counsel

asserted that appellant would not be able to pay because he had been ordered to serve

a seventeen-year term. In denying the motion, the trial court noted that appellant is a

young man, and that it would be premature and speculative to try to determine if he will

have the ability to pay in the future.

       {¶58} Pursuant to R.C. 2947.23(A)(1), a trial judge is required to include in the

sentence of a criminal defendant a judgment against him for court costs. The language

of this statute has been construed to be mandatory. See State v. John, 6th Dist. No. L-

03-1261, 2005-Ohio-1218, ¶33. Thus, a trial court has the authority to order payment of

court costs even if the defendant is indigent. State v. Anderson, 11th Dist. No. 2011-G-




                                          14
3044, 2012-Ohio-4203, ¶42. However, after the imposition of court costs, a trial court

has the discretion to waive the actual payment of those costs. John, 2005-Ohio-1218,

at ¶34. Upon appellate review, the denial of a motion to waive such costs will be upheld

unless the record demonstrates an abuse of discretion. Anderson, 2012-Ohio-4203, at

¶42.

       {¶59} “When a criminal defendant requests the court to waive his payment of the

mandatory costs of R.C. 2947.23, the court must find that a criminal defendant, formerly

found indigent for purposes of appointing counsel, has or will have the ability to pay

costs in order to deny a waiver. Although a determination of ability to pay is within the

discretion of the trial court, such determination cannot be made without regard to the

defendant’s financial condition. An appellant’s future ability to pay should be on the

record and based on circumstances in existence at the time of the finding. The court is

not required to hold a hearing to determine indigency, but a court should examine the

record and weigh, given the defendant’s circumstances, the probability that he will be

able to pay in the future. Consideration of a defendant’s conditions should include

health, education, work history, and the length of the prison sentence imposed. A prior

determination of indigency is a strong presumption supporting a lack of an ability to pay

the mandatory costs, but it is not conclusive. However, if the record reflects a lack of

support for a determination of future ability to pay such that it is unreasonable, arbitrary,

or unconscionable, then the failure to waive those costs for the indigent defendant is an

abuse of discretion.” (Emphasis sic.) John, 2005-Ohio-1218, at ¶35.

       {¶60} The Supreme Court of Ohio has held that the issue of the waiver of

payment of court costs will itself be considered waived unless the criminal defendant




                                             15
makes the proper motion at the time of sentencing. State v. Threatt, 108 Ohio St.3d

277, 2006-Ohio-905, ¶23. As a result, a trial court has a duty to engage in the foregoing

analysis as part of the sentencing process. In this case, the trial court concluded that it

would be speculative to engage in any analysis concerning appellant’s future ability to

pay at the time of sentencing.      However, the trial court was required to make that

determination immediately. Id. Therefore, because the trial court did not engage in the

requisite analysis for determining a motion to waive costs, this case is remanded so that

the trial court can consider the proper factors and render a judgment on the motion.

       {¶61} As a separate point, in denying the motion for waiver of court costs, the

trial court failed to comply with the requirements of R.C 2947.23(A)(1)(a). This statute

has since been amended, but at the time of sentencing provided that, in ordering the

payment of court costs, the trial court must orally notify the defendant of the following:

       {¶62} “(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 [and]

       {¶63} “(b) If the court orders the defendant to perform the community service,

the defendant will receive credit upon the judgment at the specified hourly credit rate

per hour of community service performed, and each hour of community service

performed will reduce the judgment by that amount.”

       {¶64} The duty to orally notify the defendant of the potential for future imposition

of community service is mandatory. See State v. Moore, 11th Dist. No. 2011-G-3027,




                                             16
2012-Ohio-3885, ¶82-84, citing State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781,

syllabus. During the sentencing hearing, the trial court did not give the required oral

notification. However, there was no objection to the lack of oral notification. Under

such circumstances, a “plain error” analysis must be applied. See Crim.R. 52(B); State

v. Jackson, 10th Dist. Nos. 12-AP-768 & 12AP-769, 2013-Ohio-1152, ¶17.

          {¶65} “Plain error exists only where, but for the error, the outcome of the trial

would have been different. State v. Bennett, 11th Dist. No. 2002-A-0020, 2005-Ohio-

1567, ¶55. Therefore, to warrant reversal for plain error, this court must find that: (1)

there was an error, i.e., a deviation from a legal rule; (2) the error was plain, i.e., there

was an ‘obvious’ defect in the trial proceeding; and (3) the error affected substantial

rights, i.e., affected the outcome of the trial. Id. at ¶56.” State v. Sawyer, 11th Dist. No.

2011-P-0003, 2012-Ohio-5119, ¶6

          {¶66} In its final written judgment, the trial court expressly stated that appellant

could be subject to community service under R.C. 2947.23(A) if he did not timely satisfy

the “court costs” order; thus, appellant was provided with written, as opposed to oral,

notice.     Second, R.C. 2947.23(A) does not mandate the imposition of community

service for lack of payment, but merely grants the trial court the ability to futuristically

order community service in the event that the costs are not paid. The requirement is

essentially an “if-maybe” notice.       As a result, the oral notification only informs the

defendant of a possible condition that may be later imposed. To this extent, the lack of

proper oral notification does not have immediate effect. Third, given that the state can

collect court costs through the garnishment of an inmate’s prison account, Jackson,

2013-Ohio-1152, ¶17, appellant’s court costs, even if they are not waived by the trial




                                               17
court upon remand, are likely to be paid before he is released and the “community

service” provision is triggered.

       {¶67} For these reasons, the trial court’s failure to comply with the oral

notification requirement of R.C. 2947.23(A)(1) had no adverse effect upon appellant’s

trial, as no miscarriage of justice occurred that would warrant a finding of plain error.

Therefore, upon remand, the trial court need only give proper consideration to

appellant’s motion to waive court costs.

       {¶68} To the extent stated in our discussion, appellant’s third assignment of

error has merit.

       {¶69} Consistent with our analysis of the third assignment, it is the judgment and

order of this court that the judgment of the Lake County Court of Common Pleas is

reversed in part, and the case is hereby remanded for further proceedings consistent

with this opinion. In all other respects, the judgment of the trial court is affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

TIMOTHY P. CANNON, P.J., concurring in part and concurring in judgment only in part
with Concurring Opinion.


                                   ____________________



TIMOTHY P. CANNON, P.J., concurring in part and concurring in judgment only in part.

       {¶70} I concur in judgment only as applied to appellant’s third assignment of

error involving former R.C. 2947.23(A)(1)(a). Though the majority adopts a plain-error

analysis, the recent precedent set forth in State v. Field, 11th Dist. No. 2012-G-3082,




                                              18
2013-Ohio-2257, ¶33; State v. Fetty, 11th Dist. No. 2011-P-0091, 2012-Ohio-6127, ¶71-

72; and State v. Taylor, 11th Dist. No. 2011-P-0090, 2012-Ohio-3890, ¶43, focuses on

the Ohio Supreme Court’s emphasis on the obligatory language of the former statute.

State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781.

      {¶71} I concur with the more straightforward approach of the Second Appellate

District in resolving this issue: simply acknowledge the error, modify the judgment to

eliminate any possibility that the appellant could be required to perform community

service as an option in lieu of paying costs, and then affirm the judgment as modified.

See State v. Veal, 2d Dist. No. 25253, 2013-Ohio-1577, ¶20; and State v. Haney, 2d

Dist. No. 25344, 2013-Ohio-1924, ¶21. Only a few cases will require this approach

given the statute’s recent amendment.

      {¶72} I concur with the majority’s judgment and reasoning as applied to all

remaining assignments of error.




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