[Cite as State v. McNeil, 2019-Ohio-1200.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :

        Appellee,                                  :     CASE NO. CA2018-09-115

                                                   :           OPINION
    - vs -                                                      4/1/2019
                                                   :

RONNIE McNEIL,                                     :

        Appellant.                                 :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 18CR34197



David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee

Bryan S. Hicks, P.O. Box 359, Lebanon, Ohio 45036, for appellant



        HENDRICKSON, P.J.

        {¶ 1} Appellant, Ronnie McNeil, appeals the sentence imposed by the Warren

County Court of Common Pleas after he pled guilty to theft and criminal damaging. For the

reasons stated below, we affirm his sentence.

        {¶ 2} In May 2018, appellant was indicted on six counts of theft, in violation of R.C.

2913.02(A)(1), and four counts of criminal damaging, in violation of R.C. 2909.06(A)(1).

Three of the theft offenses constituted fifth-degree felonies pursuant to R.C. 2913.71, while
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the remaining three theft offenses constituted first-degree misdemeanors. All the criminal

damaging offenses constituted second-degree misdemeanors. These charges resulted from

appellant breaking into multiple parked cars in Mason, Ohio and stealing credit cards, money,

and other miscellaneous items.

       {¶ 3} On June 5, 2018, appellant pled guilty to four of the offenses: three felony theft

counts and one count of criminal damaging. In exchange for the plea, the remaining six

charges were dismissed. The trial court found appellant guilty and ordered a presentence-

investigative report and a community-based correctional facility evaluation.

       {¶ 4} On August 7, 2018, the trial court sentenced appellant to three years of

community control. As part of the community control sanction, the trial court ordered

placement in a community-based correctional facility, a period of house arrest, and payment

of $2,266 in restitution to the victims. The trial court did not impose any other financial

sanctions and waived court costs. Moreover, the trial court notified appellant that there was a

potential incarceration of twelve months in prison for the first theft count, six months in prison

for each of the remaining two theft counts, and 90 days in jail for the criminal damaging count

should he violate the terms and conditions of community control. At the hearing, the trial

court made findings that each of the potential prison terms would be served consecutively to

one another, for an aggregate prison term of 24 months.

       {¶ 5} Appellant appeals his sentence, raising two assignments of error.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION IN ITS RESTITUTION

ORDER.

       {¶ 8} In his first assignment of error, appellant argues the trial court abused its

discretion when it ordered him to pay restitution, because the court failed to consider his

present and future ability to pay the financial sanction.
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       {¶ 9} We review an order of restitution, as part of a felony sentence, under the

standard set forth in R.C. 2953.08(G)(2). State v. Blevings, 12th Dist. Warren No. CA2017-

12-175, 2018-Ohio-4382, ¶ 16. Pursuant to R.C. 2953.08(G)(2), an appellate court may

modify or vacate a sentence only if there is clear and convincing evidence the record does

not support the trial court's findings under relevant statutes or the sentence is contrary to law.

State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1. Ultimately, an appellate court

does not review under an abuse of discretion standard. R.C. 2953.08(G)(2); Marcum at ¶ 10.

       {¶ 10} Pursuant to R.C. 2929.18, a trial court may impose restitution as part of a felony

sentence. To impose restitution, R.C. 2929.19(B)(5) requires a trial court "consider" the

offender's present and future ability to pay. However, a trial court is not required to make

express findings as to ability to pay or include in the judgment entry express language that it

considered ability to pay. State v. Geldrich, 12th Dist. Warren No. CA2015-11-103, 2016-

Ohio-3400, ¶ 12. The "consideration" requirement will be met if there is some evidence in

the record to indicate the trial court considered ability to pay. Id. A presentence-investigative

report in the record, which contains an offender's personal and financial information, is

sufficient evidence to indicate consideration. State v. Dehner, 12th Dist. Clermont No.

CA2012-12-090, 2013-Ohio-3576, ¶ 47.

       {¶ 11} Since appellant did not object to the order of restitution, he has waived all but

plain error review on appeal. Blevings at ¶ 17. To constitute plain error, the error must be

obvious. State v. Yanez, 12th Dist. Butler No. CA2016-10-190, 2017-Ohio-7209, ¶ 23. Plain

error is justiciable when the outcome would have been different, but for the error. State v.

Liming, 12th Dist. Clermont Nos. CA2018-05-028 and CA2018-05-029, 2019-Ohio-82, ¶ 35.

Review of plain error is made with utmost caution and only to prevent a manifest miscarriage

of justice. Id. Nevertheless, it is plain error for a trial court to impose restitution on an

offender without considering the offender's present and future ability to pay. State v. Chaffin,
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12th Dist. Madison No. CA2016-08-026, 2017-Ohio-4041, ¶ 11.

       {¶ 12} After review of the record, we find no error in the trial court's order of restitution

as part of appellant's sentence, because the record demonstrates consideration of

appellant's ability to pay. Foremost, the trial court ordered a presentence-investigative report

that included appellant's personal and financial information. This alone is adequate to show

the trial court complied with the statutory consideration requirement. Dehner at ¶ 47.

       {¶ 13} In addition to the presentence report, at the sentencing hearing, the trial court

explicitly demonstrated consideration of appellant's present and future ability to pay when it

stated:

              I am going to make a finding that [appellant is] indigent. I know
              that [appellant is] on Social Security at this time, and I'm not
              going to level any additional financial sanctions against
              [appellant], including the costs of prosecution. *** I want
              [appellant] to pay restitution, but I *** [t]here's no sense in piling
              on him right now.

       {¶ 14} By waiving court costs and other financial sanctions, the trial court indicated it

considered appellant possessed means, although limited, to pay restitution. Consequently,

the trial court did not err by ordering appellant to pay restitution. Therefore, appellant's first

assignment of error is overruled.

       {¶ 15} Assignment of Error No. 2:

       {¶ 16} THE TRIAL COURT IMPROPERLY MADE FINDINGS FOR CONSECUTIVE

PRISON SENTENCES.

       {¶ 17} In his second assignment of error, appellant argues the trial court erred by

making statutory findings to impose consecutive prison terms, despite sentencing appellant

to community control. We find that the error was harmless, as any argument regarding the

imposition of consecutive sentences is not ripe for review.




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       {¶ 18} To be justiciable, a claim or issue must be a real controversy for which a judicial

resolution will have a "direct and immediate" impact. State v. McCarty, 12th Dist. Butler No.

CA2006-04-093, 2007-Ohio-2290, ¶ 15. If the claim rests on future events that may not

occur, then it will not be ripe for adjudication. Texas v. United States, 523 U.S. 296, 300, 118

S. Ct. 1257 (1998).

       {¶ 19} When an offender is sentenced to community control, a trial court may impose

a prison term on an offender as punishment for violating the community control sanction.

R.C. 2929.15(B). However, the court must notify the offender of the potential prison term at

the original offense's sentencing hearing or a prior community control violation sentencing

hearing. R.C. 2929.19(B)(4); R.C. 2929.15(B)(3); State v. Fraley, 105 Ohio St. 3d 13, 2004-

Ohio-7110, ¶ 18. This notification serves as a "ceiling" for the potential prison term the trial

court could impose on any future community control violations. State v. Brooks, 103 Ohio St.

3d 134, 2004-Ohio-4746, ¶ 23.

       {¶ 20} To impose consecutive sentences, R.C. 2929.14(C)(4) requires a trial court to

make specific findings at the sentencing hearing and incorporate those findings in the

sentencing entry.     State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 37.

Nevertheless, when an offender is placed on community control, it is only necessary for the

trial court to make R.C. 2929.14(C)(4) findings when it actually imposes consecutive prison

sentences at a community control violation hearing. State v. Duncan, 12th Dist. Butler Nos.

CA2015-05-086 and CA2015-06-108, 2016-Ohio-5559, ¶ 41-47.

       {¶ 21} Although the trial court was not required to make the consecutive sentence

findings at this stage, the error was harmless because these findings have no effect.

Appellant cannot show the trial court's error has a direct and immediate impact on him,



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because he has not violated his community control.   Accordingly, appellant's second

assignment of error is overruled.

      {¶ 22} Judgment affirmed.


      RINGLAND and PIPER, JJ., concur.




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