[Cite as State v. Tetak, 2020-Ohio-3263.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                          Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. CT2019-0052
JOSEPH TETAK                                   :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the MuskingumCounty
                                                   Court of Common Pleas, Case No.
                                                   CR2018-0353


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            June 8, 2020




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

D. MICHAEL HADDOX                                  JAMES ANZELMO
Prosecuting Attorney                               446 Howland Drive
BY: TAYLOR P. BENNINGTON                           Gahanna, OH 43230
Assistant Prosecutor
27 North Fifth Street
Box 189
Zanesville, OH 43702-0189
[Cite as State v. Tetak, 2020-Ohio-3263.]


Gwin, P.J.

        {¶1}     Defendant-appellant Joseph Tetak [“Tetak”] appeals his sentence after a

negotiated guilty plea in the Muskingum County Court of Common Pleas.

                                            Facts and Procedural History

        {¶2}     Between the dates of May 27, 2018 and May 30, 2018, A.R. was held

captive, against her will by Tetak. During this time, Tetak assaulted her on several

occasions. He physically caused bruising and lacerations to her face, bit her ear, caused

bruising to her throat, lips, lacerations to her mouth, injuries to her shoulder, hands, legs,

arms, and buttocks. Tetak also sexually assaulted A.R. by forcing vaginal intercourse with

her against her will. During these events, Tetak was in possession of a firearm. There

were other individuals present who confirmed various parts of A.R.’s story.1 PT. at 11-

12.

        {¶3}     On June 6, 2018, Tetak was indicted as follows,

                 Count 1: Assault, a misdemeanor of the first degree, in violation of

        R.C. 2903.13(A);

                 Count 2:       Felonious Assault, a felony of the second degree, in

        violation of RC. 2903.11(A)(1);

                 Count 3: Kidnapping, with a firearm specification, a felony of the first

        degree, in violation of R.C. 2905.01(A)(3);

                 Count 4:       Felonious Assault, a felony of the second degree, in

        violation of R.C. 2903.11(A)(1);



        1 For clarity, the transcript of the Plea hearing that took place on August 10, 2018 will be referred
to as “PT.” and the transcript of the Sentencing hearing that took place on October 17, 2018 will be referred
to as “ST.”
Muskingum County, Case No. CT2019-0052                                                   3


              Count 5:     Rape, a felony of the first degree, with a firearm

       specification, in violation of R.C. 2905.01(A)(2); and

              Count 6: Kidnapping, with a firearm specification, a felony of the first

       degree, in violation of R.C. 2905.01(A)(2).

       {¶4}   On August 10, 2018, Tetak entered a negotiated guilty plea as follows,

              Count 1: Assault, a misdemeanor of the first degree, in violation of

       R.C. 2903.13(A);

              Count 2:    Aggravated Assault, a felony of the fourth degree, in

       violation of R.C. 2903.12(A)(1);

              Count 4: Kidnapping with a firearm specification, a felony of the first

       degree, in violation of R.C. 2905.01(A)(3); and

              Count 5: Sexual Battery, a felony of the third degree, with a firearm

       specification, in violation of R.C. 2907.03(A)(1).

       {¶5}   In exchange for the plea, the state dismissed Count 4 and Count 6 of the

Indictment. PT. at 9. Further, an amendment was made to the firearm specification to

make it a one year firearm specification. ST. at 9.

       {¶6}   Sentencing was deferred and a pre-sentence investigation report was

ordered to be prepared. On October 17, 2018, Tetak was sentenced as follows:

              Count 1:    6 months of local incarceration on the misdemeanor

       Assault;

              Count 2: 18 months prison time on the Aggravated Assault;

              Count 3: 9 years prison time on the Kidnapping with a mandatory

       one-year on the firearm specification; and
Muskingum County, Case No. CT2019-0052                                                  4


             Count 5: 60 months in prison on the Sexual Battery charge.

      {¶7}   The court ordered the periods of incarceration for Counts 1 and 2 to be

served concurrently with each other and concurrently with all other counts; the periods of

incarceration imposed for Counts 3 and 5 were ordered to be served consecutively, with

the firearm specification contained in Count 3, by law, being mandatory consecutive, for

an aggregate sentence of 15 years in prison, with 1 year mandatory.

                                       Assignments of Error

      {¶8}   Tetak raises two Assignments of Error,

      {¶9}   “I. THE TRIAL COURT UNLAWFULLY ORDERED JOSEPH TETAK TO

SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE

PROCESS,      GUARANTEED        BY     SECTION       10,   ARTICLE   I   OF   THE   OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

      {¶10} “II. JOSEPH TETAK RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

                                                I.

      {¶11} In his First Assignment of Error, Tetak challenges the imposition of

consecutive terms of imprisonment on the ground that the record does not support the

imposition of consecutive sentences.

      1. Standard of Appellate Review.
Muskingum County, Case No. CT2019-0052                                                         5


       {¶12} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31

       {¶13} In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an

appellate court may only review individual felony sentences under R.C. 2929.11 and R.C.

2929.12, while R.C. 2953.08(G)(2) is the exclusive means of appellate review of

consecutive felony sentences. ___ Ohio St.3d ___, 2019-Ohio-4761, ¶16-18; State v.

Anthony, 11th Dist. Lake No. 2019-L-045, 2019-Ohio-5410, ¶60.

       {¶14} R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or

vacate a sentence and remand for resentencing where we clearly and convincingly find

that either the record does not support the sentencing court’s findings under R.C.

2929.13(B) or (D),      2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is

otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–

3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne, ¶16.

       {¶15} Clear and convincing evidence is that evidence “which will provide in the

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

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.
Muskingum County, Case No. CT2019-0052                                                     6


       {¶16} In the case at bar, Tetak does not contest the length of his sentences; rather

his arguments center upon the trial court’s decision to make the sentences consecutive.

As the Ohio Supreme Court noted in Gwynne,

              Because R.C. 2953.08(G)(2)(a) specifically mentions a sentencing

       judge’s findings made under R.C. 2929.14(C)(4) as falling within a court of

       appeals’   review,   the    General   Assembly    plainly   intended      R.C.

       2953.08(G)(2)(a) to be the exclusive means of appellate review of

       consecutive sentences. See State v. Vanzandt, 142 Ohio St.3d 223, 2015-

       Ohio-236, 28 N.E.3d 1267, ¶ 7 (“We primarily seek to determine legislative

       intent from the plain language of a statute”).

              While R.C. 2953.08(G)(2)(a) clearly applies to consecutive-

       sentencing review, R.C. 2929.11 and 2929.12 both clearly apply only to

       individual sentences.

2019-Ohio-4761, ¶¶16-17(emphasis in original).

       {¶17} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, ¶37.         Otherwise, the imposition of consecutive sentences is

contrary to law. See Id. The trial court is not required “to give a talismanic incantation of

the words of the statute, provided that the necessary findings can be found in the record

and are incorporated into the sentencing entry.” Id.

       {¶18} Tetak agrees that the trial judge in his case made the requisite findings to

impose consecutive sentences under R.C. 2929.14(C)(4). [Appellant’s Brief at 4].
Muskingum County, Case No. CT2019-0052                                                    7


         1.1.1 Issue for Appeal.

         1.1.2 Whether the trial court’s decision to impose consecutive sentences in Tetak’s

case is supported by the record.

         {¶19} According to the Ohio Supreme Court, “the record must contain a basis

upon which a reviewing court can determine that the trial court made the findings required

by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell, ¶28. “[A]s

long as the reviewing court can discern that the trial court engaged in the correct analysis

and can determine that the record contains evidence to support the findings, consecutive

sentences should be upheld.” Id. at ¶29.

         {¶20} The plurality of the Ohio Supreme Court in Gwynne held that appellate

courts may not review consecutive sentences for compliance with R.C. 2929.11 and R.C.

2929.12. See 2019-Ohio- 4761, ¶18.

         {¶21} In the case at bar, the trial court had the benefit of a Pre-Sentence

Investigation Report. ST. at 5. That report contains photographs of the victim’s injuries

“as she lie in the hospital after this ongoing days-long assault.” ST. at 5. The trial court

found,

               The description of what Mr. Tetak did to his victim in this case is

         pretty outrageous, an ongoing series of beatings. The inside of his trailer,

         there is blood on the ground from the beatings and the sexual assaults that

         he was committing. He changed the locks to lock the victim into the trailer.

         She had to break loose and flee to a neighbor's house.

               Just an absolutely unspeakable savage assault.
Muskingum County, Case No. CT2019-0052                                                     8


ST. at 5. Teak physically caused bruising and lacerations to the victim’s face, bit her ear,

caused bruising to her throat, lips, lacerations to her mouth, injuries to her shoulder,

hands, legs, arms, and buttocks. Tetak also sexually assaulted the victim by forcing

vaginal intercourse with her against her will. PT. at 11-12.

       {¶22} The record demonstrates and Tetak agrees that the trial court made the

findings required in order to impose consecutive sentences. Upon review, we find that the

trial court's sentencing on the charges complies with applicable rules and sentencing

statutes. The sentence was within the statutory sentencing range. Further, the record

contains evidence supporting the trial court’s findings under R.C. 2929.14(C)(4).

Therefore, we have no basis for concluding that it is contrary to law.

       {¶23} Tetak’s First Assignment of Error is overruled.

                                                 II.

       {¶24} In his Second Assignment of Error, Tetak complains of ineffective

assistance of counsel for failing to object to the imposition of costs.

       2. Standard of Appellate Review.

       {¶25} A trial court has discretion to waive the payment of court costs if the

defendant is indigent. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d

393, ¶ 14. Therefore, we review the trial court’s decision concerning waiving the court

costs for an abuse of discretion.

       {¶26} An abuse of discretion can be found where the reasons given by the court

for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or

where the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship
Muskingum County, Case No. CT2019-0052                                                   9


of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54.

      2.1 Issue for Appeal.

      2.1.1 Whether there is a reasonable probability that had trial counsel filed a motion

to waive court costs the trial court would have granted the motion.

      {¶27} In State v. Davis, the Ohio Supreme Court noted,

             R.C. 2947.23(A)(1)(a) requires a trial court to impose the costs of

      prosecution against all convicted criminal defendants. White, 103 Ohio

      St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, at ¶ 14. While the imposition

      of those costs is mandatory, the court may waive the payment of all costs

      when the defendant is determined to be indigent. Id.; see also R.C. 2743.70,

      2949.091, and 2949.092.

Oh. Sup. Ct. No. 2018-0312, 2020-Ohio-309(Feb 4, 2020), ¶13. The Court further held,

              Furthermore, a determination of indigency alone does not rise to the

      level of creating a reasonable probability that the trial court would have

      waived costs had defense counsel moved the court to do so, contrary to the

      Eighth District’s holding in Gibson, 2017-Ohio-102, 2017 WL 123309, and

      in Springer, 2017-Ohio-8861, 2017 WL 6055504. See State v. Dean, 146

      Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 233; State v. Smith, 12th

      Dist. Warren No. CA2010-06-057, 2011-Ohio-1188, 2011 WL 882182, ¶ 63-

      64, rev’d in part on other grounds, 131 Ohio St.3d 297, 2012-Ohio-781, 964

      N.E.2d 423 (an indigent defendant fails to show that there is a reasonable

      probability that the trial court would have waived costs when the trial court
Muskingum County, Case No. CT2019-0052                                                   10


      made a finding that the defendant had the ability to work and therefore had

      the ability to pay the costs in the future). The court of appeals, instead, must

      look at all the circumstances that the defendant sets forth in attempting to

      demonstrate prejudice and determine whether there is a reasonable

      probability that the trial court would have granted a motion to waive costs

      had one been made.

Oh. Sup. Ct. No. 2018-0312, 2020-Ohio-309(Feb 4, 2020), ¶15 (emphasis added).

      {¶28} The Supreme Court of Ohio has held that R.C. 2947.23 requires a court to

assess costs against all convicted defendants, including indigent defendants. State v.

White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶8; State v. Hayes, 11th Dist. Ashtabula No.

2004-A-0024, 2005-Ohio-2881, ¶8. Therefore, a defendant’s financial status is irrelevant

to the imposition of court costs. State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006,

¶3.

      {¶29} Tetak relies on the trial court’s findings that he was indigent for appointment

of trial and appellant counsel to support his argument that there was a reasonable

probability that the trial court would have waived costs. However, that argument was

rejected in Davis. Oh. Sup. Ct. No. 2018-0312, 2020-Ohio-309(Feb 4, 2020), ¶15.

      {¶30} Tetak has not shown within the trial court record any further facts or

circumstances to support a finding that there was a reasonable probability that trial court

would have granted a request to waive court costs. We have reviewed the record before

us and found nothing that would support the conclusion that there was a reasonable

probability that the outcome would have changed had a motion been filed. We note that

in State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme
Muskingum County, Case No. CT2019-0052                                                     11


Court noted, “a reviewing court cannot add matter to the record before it that was not a

part of the trial court's proceedings, and then decide the appeal on the basis of the new

matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).” It is also a

longstanding rule “that the record cannot be enlarged by factual assertions in the brief.”

Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing

Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d

227(1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858

N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843

N.E.2d 1202, ¶16.

       {¶31} In addition, we note the General Assembly amended R.C. 2947.23 by

adding the following provision, “[t]he court retains jurisdiction to waive, suspend, or modify

the payment of the costs of prosecution * * * at the time of sentencing or at any time

thereafter.” In State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028,

the Ohio Supreme Court noted that in light of this new provision, a case does not need to

be remanded to the trial court in order for the defendant to obtain an order waiving,

suspending, or modifying costs. Id. at ¶ 264 –265. See also, State v. Braden, Ohio Sup.

Ct. Nos. 2017-1579 and 2017-1609, 2019-Ohio-4202(Oct. 16, 2019). Accordingly, in the

case at bar, any further dispute as to costs or Tetak’s ability to pay them can be handled

in the manner authorized under R.C. 2947.23.

       {¶32} Therefore, we are compelled to conclude that Tetak has failed to

demonstrate a reasonable probability that the outcome would have changed and that,
Muskingum County, Case No. CT2019-0052                                                12


therefore, he did not suffer prejudice as a result of counsel not filing a motion to wave

costs. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 233.

      {¶33} Tetak’s Second Assignment of Error is overruled.

      {¶34} The judgment of the Muskingum County Court of Common Pleas is

affirmed.



By Gwin, P.J.,

Delaney. J., and

Wise, Earle, J., concur
