 [Cite as State v. Barker, 2014-Ohio-3946.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 ANTHONY K. BARKER

         Defendant-Appellant


 Appellate Case No.       26061

 Trial Court Case No. 2013-CR-720


 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                              Rendered on the 12th day of September, 2014.

                                              ...........

MATHIAS H. HECK, JR., by TIFFANY C. ALLEN, Atty. Reg. No. 0089369, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

RICHARD A. NYSTROM, Atty. Reg. No. 0040615, 6581 Atterbury Court, Centerville, Ohio 45459
     Attorney for Defendant-Appellant

                                              .............

WELBAUM, J.
                                                                                         2




       {¶ 1}    Defendant-appellant, Anthony K. Barker, appeals from the sentence he received

in the Montgomery County Court of Common Pleas following his guilty plea to possession of

heroin and having a weapon while under disability.           For the reasons outlined below, the

judgment of the trial court will be affirmed.



                                Facts and Course of Proceedings

       {¶ 2}    On June 5, 2013, Barker was indicted for one count of possessing cocaine in an

amount less than five grams in violation of R.C. 2925.11(A), a felony of the fifth degree; one

count of possessing heroin in an amount greater than 50 unit doses, but less than 100 unit doses,

in violation of R.C. 2925.11(A), a felony of the third degree; and one count of having a weapon

while under disability in violation of R.C. 2923.13(A)(3), also a felony of the third degree.

Barker pled guilty to possession of heroin and having a weapon while under disability, and the

State dismissed the charge for possession of cocaine.

       {¶ 3}    At sentencing, the trial court imposed a two-year prison sentence for possession

of heroin to be served concurrently with a two-year prison sentence for having a weapon while

under disability. The trial court also suspended Barker’s driver’s license for two years and

imposed a mandatory minimum fine of $5,000, plus court costs. Barker now appeals from the

trial court’s sentence, raising one assignment of error for review.



                                       Assignment of Error

       {¶ 4}    Barker’s sole assignment of error is as follows:
                                                                                                 3


        ISSUE I. WHETHER THE TRIAL COURT ERRED BY FAILING TO FULLY

        AND FAIRLY CONSIDER DEFENDANT’S SENTENCE AND ALL OF THE

        UNDERLYING           FACTS       AND     CIRCUMSTANCES            AND      THEREBY

        VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS

        UNDER THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENT OF THE

        UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE

        OHIO STATE CONSTITUTION.

        {¶ 5}    Under his single assignment of error, Barker contends the trial court abused its

discretion in imposing a two-year prison sentence and a $5,000 mandatory fine. Specifically,

Barker contends the trial court failed to fully and fairly consider all relevant factors at sentencing,

including his need for drug rehabilitation, and thus claims his prison sentence does not comport

with the purposes and principles of sentencing set forth in R.C. 2929.11 and R.C. 2929.12. He

also claims the trial court failed to consider his financial inability to pay the $5,000 fine.



            The Trial Court Did Not Err in Imposing a Two-Year Prison Sentence

        {¶ 6}    This court now applies R.C. 2953.08(G)(2) as the appellate standard of review

for felony sentences. See State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.).

The statute states, in pertinent part, that:

        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
                                                                                          4


       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.

 R.C. 2953.08(G)(2).

       {¶ 7}    The findings under the statutory provisions listed in division (a) of R.C.

2953.08(G)(2) are irrelevant to this case; therefore, the threshold issue is whether Barker’s

sentence is clearly and convincingly contrary to law.

       {¶ 8}    “[A] sentence is not contrary to law when the trial court imposes a sentence

within the statutory range, after expressly stating that it had considered the purposes and

principles of sentencing set forth in R.C. 2929.11, as well as the factors in R.C. 2929.12.”

Rodeffer, 2013-Ohio-5759 at ¶ 32, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, ¶ 18.       The trial court need not make any specific findings in order to

demonstrate its consideration of those factors, nor does it have to use the exact wording of the

statute. State v. Wilson, 2d Dist. Montgomery No. 24978, 2012-Ohio-4756, ¶ 8, citing State v.

Watkins, 186 Ohio App.3d 619, 2010-Ohio-740, 929 N.E.2d 1072, ¶ 39 (2d Dist.).

       {¶ 9}    Barker concedes that the prison sentences he received following his guilty plea to

possession of heroin and having a weapon while under disability were within the prescribed

statutory range for third-degree felonies. Nevertheless, Barker challenges his prison sentence on
                                                                                             5


grounds that the trial court did not fully and fairly consider all relevant factors, specifically his

need for rehabilitation, and thus claims his prison sentence is not in compliance with the purposes

and principles of sentencing. We disagree with this contention. As the record indicates, the

trial court expressly stated at the sentencing hearing that it had considered the purposes and

principles of sentencing and the seriousness and recidivism factors in R.C. 2929.11 and R.C.

2929.12. “[T]he need for * * * rehabilitating the offender” is one of the factors the trial court

must consider under R.C. 2929.11.

          {¶ 10} Furthermore, while the trial court is not required to make any specific findings at

the sentencing hearing, it did note that Barker had four prior felony convictions for possessing

cocaine and that he had already received a previous opportunity at a drug rehabilitation program.

The court also noted that Barker had his community control sanctions revoked twice on those

prior felonies.     In addition, the court indicated that Barker had multiple misdemeanor

convictions and ten outstanding warrants in the Dayton Municipal Court. Therefore, because

Barker’s two-year prison sentence is within the prescribed statutory range and the record

sufficiently demonstrates that the trial court made the required considerations under R.C. 2929.11

and R.C. 2929.12, we conclude that his prison sentence is not clearly and convincingly contrary

to law.

          {¶ 11} We reiterate that we have reviewed Barker’s sentence under the standard of

review set forth in State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069. In Rodeffer, we held that

we would no longer use an abuse-of-discretion standard in reviewing a sentence in a criminal

case, but would apply the standard of review set forth in R.C. 2953.08(G)(2). Since then,

opinions from this court have expressed reservations as to whether our decision in Rodeffer is
                                                                                            6


correct. See, e.g., State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538, ¶ 9, fn.1;

State v. Johnson, 2d Dist. Clark No. 2013-CA-85, 2014-Ohio-2308, ¶ 9, fn. 1. Regardless, in the

case before us, we find no error in the sentence imposed under either standard of review.



                   The Trial Court Did Not Err in Imposing a $5,000 Fine

       {¶ 12} Barker next claims the trial court abused its discretion in imposing a $5,000

mandatory, minimum fine, because the court failed to fully and fairly consider his indigency.

       {¶ 13} As a preliminary matter, we note that for a third-degree felony violation of R.C.

2925.11(A), such as Barker’s, the sentencing court is required to impose a mandatory fine that is

specified under R.C. 2929.18(B)(1), unless the court determines that the offender is indigent.

R.C. 2925.11(E)(1)(a). R.C. 2929.18(B)(1) provides that:

       For a first, second, or third degree felony violation of any provision of Chapter

       2925 * * * of the Revised Code, the sentencing court shall impose upon the

       offender a mandatory fine of at least one-half of, but not more than, the maximum

       statutory fine amount authorized for the level of the offense pursuant to division

       (A)(3) of this section. If an offender alleges in an affidavit filed with the court

       prior to sentencing that the offender is indigent and unable to pay the mandatory

       fine and if the court determines the offender is an indigent person and is unable to

       pay the mandatory fine described in this division, the court shall not impose the

       mandatory fine upon the offender.

       {¶ 14} In division (A)(3) of R.C. 2929.18, the maximum fine permitted for a

third-degree felony is $10,000. Therefore, the mandatory minimum fine for a third-degree
                                                                                             7


felony violation of R.C. 2925.11(A) would be half that amount, or $5,000. R.C. 2929.18(B)(1).

        {¶ 15} In State v. Lewis, 2d Dist. Greene No. 2011-CA-75, 2012-Ohio-4858, we held

that:

        Although [the offender’s] fine was mandatory under R.C. 2929.18, the trial court

        still was obligated by R.C. 2929.19(B)(5) to consider [the offender’s] “present and

        future ability to pay.” A hearing on a defendant’s ability to pay is not required.

        Nor is a court required to make findings. “All that is required is that the trial

        court ‘consider’ a defendant’s ability to pay.”           State v. Hodge, 2d Dist.

        Montgomery No. 23964, 2011-Ohio-633, ¶ 55 (citations omitted). “[A] trial

        court is not required to expressly state that it considered [a defendant’s] ability to

        pay a fine.”        State v. Parker, 2d Dist. Champaign No. 03CA0017,

        2004-Ohio-1313, ¶ 42. Under appropriate circumstances, a reviewing court may

        infer that a trial court considered the issue. Id.

Lewis at ¶ 9. Accord State v. Edwards, 2d Dist. Clark No. 2012-CA-49, 2013-Ohio-1922, ¶ 16.

 Among those circumstances in which a reviewing court may infer that the trial court considered

an offender’s present and future ability to pay is if the trial court reviewed “a

presentence-investigation report, which includes information about the defendant’s age, health,

education, and work history.”       (Citation omitted.)      State v. Ratliff, 194 Ohio App.3d 202,

2011-Ohio-2313, 955 N.E.2d 425, ¶ 12 (2d Dist.).

        {¶ 16} We review a trial court’s decision on an offender’s present and future ability to

pay a mandatory fine for an abuse of discretion. See Edwards at ¶ 17; State v. Wills, 2d Dist.

Montgomery No. 25357, 2013-Ohio-4507, ¶ 46. “A trial court abuses its discretion when it
                                                                                             8


makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State

v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

       {¶ 17} In this case, it is clear that pursuant to R.C. 2925.11(E)(1)(a) and R.C.

2929.18(B)(1), Barker was subject to a mandatory minimum fine of $5,000. Despite the trial

court notifying Barker at the plea hearing that he would be subject to a fine of at least $5,000, the

record does not indicate that Barker filed an affidavit with the court prior to sentencing alleging

that he was indigent and unable to pay the fine. Regardless, the trial court stated in its judgment

entry of conviction that it determined Barker was not an indigent person for the purpose of paying

the fine. See Termination Entry (Jan. 15, 2014), Montgomery County Court of Common Pleas

Case No. 2013 CR 00720, Docket No. 22, p. 1.

       {¶ 18} In addition, the trial court fulfilled its duty under R.C. 2929.19(B)(5) by

considering Barker’s present and future ability to pay the fine. This is evidenced by the fact that

the trial court indicated it had reviewed the presentence investigation report. Moreover, at the

sentencing hearing, the trial court specifically considered the fact that Barker had claimed his

offenses were a result of selling drugs to financially support his eight children. The court then

weighed that claim against the fact that Barker had a large amount of child support arrearage.

Additionally, the court considered Barker’s age and his lack of physical infirmities and ultimately

determined that there was nothing to prevent him from working and paying the fine. See Trans.

(Dec. 10, 2013), p. 17. Based on the foregoing considerations, we do not find that the trial court

abused its discretion in imposing the fine.

       {¶ 19} Barker’s sole assignment of error is overruled.
                                                                                   9


                                         Conclusion

       {¶ 20} Having overruled Barker’s sole assignment of error, the judgment of the trial

court is affirmed.

                                        .............

FROELICH, P.J., and HALL, J., concur.




Copies mailed to:

Mathias H. Heck
Tiffany C. Allen
Richard A. Nystrom
Hon. Mary Katherine Huffman
