[Cite as State v. Auxter, 2017-Ohio-1311.]




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


State of Ohio                                    Court of Appeals Nos. S-16-020
                                                                       S-16-021
        Appellee
                                                 Trial Court Nos. 16 CR 58
v.                                                                16 CR 91

David A. Auxter, Jr.                             DECISION AND JUDGMENT

        Appellant                                Decided: April 7, 2017

                                             *****

        Timothy F. Braun, Sandusky County Prosecuting Attorney,
        for appellee.

        Nathan Oswald, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, David A. Auxter, Jr., appeals from the May 13, 2016 judgments

of the Sandusky County Court of Common Pleas imposed in two separate cases, which

have been consolidated for purposes of appeal. In Sandusky County case No. 16 CR 58,

appellant was convicted of unlawful sexual conduct with a minor, a violation of R.C.
2907.04(A), a felony of the fourth degree, and was sentenced to 18 months

imprisonment. In Sandusky County case No. 16 CR 91, appellant was convicted of

permitting drug abuse, a violation of R.C. 2925.13, a misdemeanor of the first degree,

and sentenced to 180 days incarceration in the Sandusky County Jail. This latter sentence

was ordered to be served concurrently with the sentence imposed in case No. 16 CR 58.

For the reasons which follow, we affirm.

      {¶ 2} On appeal, appellant asserts the following assignments of error:

             Assignment of Error No. 1. THE RECORD CLEARLY AND

      CONVINCINGLY FAILS TO SUPPORT THE IMPOSITION OF THE

      MAXIMUM SENTENCES ON MR. AUXTER.

             Assignment of Error No. 2. THE TRIAL COURT ERRED BY

      NOTIFYING MY AUXTER IT COULD ORDER HIM TO PERFORM

      COMMUNITY SERVICE IF HE FAILS TO PAY THE COSTS OF HIS

      APPOINTED COUNSEL.

      {¶ 1} The state’s summary at the plea hearing and the presentence investigation

report presented the following underlying facts for the charges. On September 15, 2015,

appellant and a 13-year-old boy were found unconscious in a vehicle and were revived by

use of a drug which reverses the effects of opiates. Appellant denied having snorted

heroin. Also found in the vehicle was Fentanyl, a Schedule II drug.

      {¶ 2} On December 9, 2015, appellant engaged in sexual contact with a 13-year-

old minor. The child was reported missing after having left for school. She was




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eventually located with appellant, where her probation officer suggested she would most

likely be found. The child first claimed appellant had sexually assaulted her and then

recanted her allegations and claimed it was “consensual” sex, which appellant admitted.

                                   Maximum Sentence

       {¶ 3} In his first assignment of error, appellant argues that the record does not

support imposition of the maximum sentence for each offense.

       {¶ 4} Pursuant to R.C. 2929.14, the maximum sentence for a felony of the fourth

degree is a prison term of 18 months and pursuant to R.C. 2929.24(A)(1), the maximum

sentence for a misdemeanor of the first degree is a jail term of no more than 180 days.

       {¶ 5} In sentencing, a trial court must bear in mind the overriding purposes of

sentencing, which are “to protect the public from future crime by the offender and others

and to punish the offender” and formulate a sentence which is reasonably calculated to

achieve these purposes. R.C. 2929.11(A) and (B); 2929.21(A) and (B). Furthermore, the

sentence must be “commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact on the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.” R.C. 2929.11(B); 2929.21(B). The

trial court must consider “the need for incapacitating the offender, deterring the offender

and others from future crime, rehabilitating the offender, and making restitution to the

victim of the offense, the public, or both” in felony sentencing, R.C. 2929.11(A) and “the

impact of the offense upon the victim and the need for changing the offender’s behavior,




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rehabilitating the offender, and making restitution to the victim of the offense, the public,

or the victim and the public” in misdemeanor sentencing, R.C. 2929.21(A).

       {¶ 6} In exercising its discretion in felony sentencing and to comply with the

purposes and principles of sentencing, R.C. 2929.12(B)-(E) set forth factors concerning

the seriousness of the offense and recidivism factors that the court must consider in

addition to any other relevant factors. In misdemeanor sentencing, R.C. 2929.22(B)-(D)

sets forth the factors the trial court must consider as well as any other relevant factors. In

sentencing, the court has discretion to impose any sentence within the sentencing range

for the degree of the offense unless a more specific statute controls. R.C. 2929.14(A);

2929.22(A).

       {¶ 7} The trial court’s findings do not need to be specifically stated on the record.

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42; State v.

Hughley, 8th Dist. Cuyahoga Nos. 92588, 93070, 2009-Ohio-5824, ¶ 14, superseded by

statute on other grounds as stated in State v. Polus, 2014-Ohio-2321, 12 N.E.3d 1237,

¶ 14 (6th Dist.). A presumption arises that the trial court did consider the statutory

factors unless the record clearly shows otherwise. State v. Hudson, 7th Dist. Mahoning

No. 15 MA 0134, 2017-Ohio-645, ¶ 37; Hughley at ¶ 16.         Furthermore, the trial court is

no longer required to make certain findings before imposing the maximum sentenced

permitted by statute. Hudson at ¶ 40; State v. Jones, 6th Dist. No. L-16-1014, 2017-

Ohio-413, ¶ 13 (holding R.C. 2929.22(C) is unconstitutional).




4.
       {¶ 8} Pursuant to R.C. 2953.08(G)(2), “an appellate court may vacate or modify a

felony sentence on appeal only if it determines by clear and convincing evidence that the

record does not support the trial court’s findings under relevant statutes or that the

sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 1. Clear and convincing evidence has been defined as

       that measure or degree of proof which is more than a mere “preponderance

       of the evidence,” but not to the extent of such certainty as is required

       “beyond a reasonable doubt” in criminal cases, and which will produce 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.

The standard of review for a misdemeanor sentence is whether the trial court abused its

discretion. City of Cleveland v. Meehan, 8th Dist. Cuyahoga No. 100202, 2014-Ohio-2265,

¶ 7. “The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 9} Appellant argues that the trial court did not consider the factors indicating

his conduct was “less serious than conduct normally constituting the offense, R.C.

2929.12(C), nor facts which mitigated against appellant’s conduct, R.C. 2929.12(C)(4).

He argues the trial court did not consider (1) his cognitive delays as a mitigating factor

(and may have considered it instead as a significant factor in why the offense occurred);




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(2) appellant’s remorse and the facts that he had taken responsibility for his actions by

pleading guilty and desired to participate in drug and alcohol abuse treatment; and

(3) appellant’s ability to be rehabilitated evidenced by the fact that he had stayed out of

trouble while in jail pending his trial, his counselors had noted a change in his behaviors,

and the guards talked about helping appellant get a job when he was released.

       {¶ 10} Furthermore, appellant agues the trial court gave no indication it considered

appellant’s conduct to be “more serious than conduct normally constituting the offense,”

R.C. 2929.12(B). While appellant had been convicted of prior misdemeanor offenses, he

contends he did not have a significant criminal history and this was his first serious

offense as an adult. Yet, appellant argues, the trial court sentenced appellant as if had

committed the worse forms of the offenses and there were no mitigating factors. The

only basis the court stated for imposing the maximum sentences was because a minor was

involved. Appellant argues that fact is actually an element of the offense and, therefore

should not be a factor for imposing the maximum sentence or else everyone who violated

R.C. 2907.04 would deserve the maximum sentence.

       {¶ 11} At the sentencing hearing, the state did not make a recommendation as part

of the plea negotiation agreement. The victim’s grandmother spoke on behalf of the

victim. She advocated for a sentence which would prevent appellant from harming

another child because she believed he had done such crimes before and would again. She

stated his actions had seriously harmed the child in this case and her family.




6.
       {¶ 12} Appellant’s counsel requested at the sentencing hearing that the court

consider that appellant had a ninth grade education, some cognitive delays, is remorseful,

had taken responsibility for his actions by entering a guilty plea; wanted help for his drug

and alcohol abuse, had already exhibited a change in his behavior according to jail

counselors; had stayed out of trouble while in jail; has been promised aid to obtain a job

by the jail guards; and he desired to obtain his GED.

       {¶ 13} The court noted from the presentence investigation report that appellant did

not have a significant criminal history as a juvenile, but he had been convicted, as an

adult, of theft, assault, and driving without a license. The record also reflected that

appellant was unemployed at the time of the offenses; his probation officer reported

appellant had issues with authority at home; during the presentence interview, appellant

“expressed no remorse and did not grasp the seriousness of the offense;” appellant self-

reported that he had been diagnosed with ADHD and had an IEP while in school; the

investigator noted appellant’s handwriting and speech indicated some “educational

concerns”; and appellant admitted he had been drinking since age 13 and using

marijuana, cocaine, heroin, and fentanyl.

       {¶ 14} In reviewing the need to incapacitate and rehabilitate appellant, deter others

from future crime, and the need to achieve the two overriding purposes of felony

sentencing, the court indicated that it took the offenses in this case very seriously because

they were offenses against minors who cannot defend themselves.




7.
       {¶ 15} Upon a review of the entire record, we find that there is clear and

convincing evidence in the record that appellant was beginning to engage, as an adult, in

a pattern of committing offenses involving minors which had exposed them to great

harm. He had a history of minor offenses as a teenager and a serious drug abuse history.

Despite evidence of some cognitive issues, there is nothing in the record indicating that

he is unable to conform his conduct to avoid illegal activities. While appellant had

entered a guilty plea, he indicated no remorse during his presentence investigation

interview. Considering the evidence against him, the guilty plea could have been

motivated by other considerations. While appellant had exhibited some positive behavior

while detained prior to trial and this fact suggests that he can be rehabilitated, it also

suggests that incarceration may be necessary for his rehabilitation to occur. Therefore,

we find appellant’s sentences are supported by clear and convincing evidence in the

record and the trial court considered the statutory factors required by law. Appellant’s

first assignment of error is found not well-taken.

                     Community Service Sanction for Unpaid Costs

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

notifying appellant that if he failed to pay the costs of his appointed counsel, he would be

ordered to perform community service.

       {¶ 17} Appointed counsel fees and expenses cannot be taxed as part of the costs of

prosecution, R.C. 2941.51(A), or imposed as a financial sanction under R.C. 2929.18.

State v. Miller, 2d Dist. Clark No. 08CA0090, 2010-Ohio-4760, ¶ 59. However, the




8.
defendant can be ordered to pay his appointed counsel’s fees and expenses if the court

finds the defendant “has, or reasonably may be expected to have, the means to meet some

part of the cost of the services rendered to the person.” R.C. 2941.51(D). See also R.C.

120.05(D).

       {¶ 18} While included in the sentencing judgment, costs of prosecution are not

punishment; they are a civil obligation arising out of the criminal proceeding. State v.

Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 20. Compare State v.

White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 9-15. Likewise, the right

to collect the costs of appointed counsel, granted to the state by R.C. 2941.51(D), must be

enforced in civil action. State v. Miller, 2d Dist. Clark No. 08CA0090, 2010-Ohio-4760,

¶ 61, citing State v. Crenshaw, 145 Ohio App.3d 86, 761 N.E.2d 1121 (8th Dist.2001);

State v. Hill, 2d Dist. Clark No. 04CA0047, 2005-Ohio-3877, ¶ 6.

       {¶ 19} However, R.C. 2947.23(B) authorizes a court “to impose community

service upon the defendant as a method to pay off or forgive costs” of prosecution. State

v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 15. There is no

corresponding statutory provision for enforcing the payment of appointed attorney fees

and expenses by converting the fees and expenses to community service.

       {¶ 20} The Ohio Supreme Court has held that criminal defendants, who have not

yet been convicted, cannot be required to do community service to pay the cost of

appointed counsel. State ex rel. Carriger v. Galion, 53 Ohio St.3d 250, 251, 560 N.E.2d

194 (1990). In dicta, the Ohio Supreme Court also concurred with the opinion of the




9.
New Hampshire Supreme Court in Opinion of Justices, 121 N.H. 531, 533, 431 A.2d 144

(1981), that the conversion of attorney fees and expenses to community service for

convicted defendants would constitute involuntary servitude, a violation of the Thirteenth

Amendment to the United States Constitution, because it is not imposed as a punishment

but as a remedy for nonpayment of a civil debt. Carriger at 251. Therefore, we have

held that a trial court may not order unpaid attorney fees and expenses to be converted to

community service. State v. Bullard, 6th Dist. Sandusky Nos. S-15-026, S-15-029, 2016-

Ohio-3504, ¶ 9.

       {¶ 21} In the case before us, the trial court’s notice that appellant’s unpaid

appointed attorney fees and expenses could be converted to community service if unpaid,

was erroneous. Appellant’s second assignment of error is well-taken.

       {¶ 22} We hereby find that the portion of each judgment of the Sandusky County

Court of Common Pleas notifying appellant that his unpaid appointed counsel fees and

expenses could be converted to community service is a nullity and void. Having found

the trial court did not otherwise commit error prejudicial to appellant and that substantial

justice has been done, the judgments are affirmed. Appellant is ordered to pay the court

costs incurred on appeal.


                                                                    Judgments void, in part,
                                                                       and affirmed, in part.




10.
                                                                      State v. Auxter
                                                                      C.A. Nos. S-16-020
                                                                                 S-16-021




       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.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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