[Cite as State v. Mazzola, 2019-Ohio-845.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                  :         OPINION

                  Plaintiff-Appellee,            :
                                                           CASE NO. 2018-T-0029
         - vs -                                  :

 STEVEN JAMES MAZZOLA,                           :

                  Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR
 00630.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, Gabriel M. Wildman, Assistant
 Prosecutor, Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth
 Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

 Michael A. Partlow, 112 South Water Street, Suite C, Kent OH 44240 (For Defendant-
 Appellant).



MARY JANE TRAPP, J.

        {¶1}      Steven James Mazzola appeals the judgment of the Trumbull County Court

of Common Pleas imposing sentence on a conviction for burglary, a third-degree felony.

Specifically, Mr. Mazzola challenges the trial court’s imposition of: (1) the maximum

available prison term of 36 months, and (2) restitution. After a careful review of the record

and pertinent law, we affirm the trial court’s judgment.
                   Substantive History and Procedural Background

       {¶2}   On August 26, 2017, Mr. Mazzola broke into the home occupied by his sister

and her roommate and stole items worth approximately $925. The Trumbull County

Grand Jury indicted Mr. Mazzola on a single charge of burglary, a second-degree felony.

Mr. Mazzola initially entered a plea of not guilty.

       {¶3}   Subsequently, Mr. Mazzola entered a plea of guilty to an amended

indictment of burglary, a third-degree felony. Upon accepting the plea, the trial court

found him guilty, ordered a presentence investigation, and set the case for sentencing.

       {¶4}   At the sentencing hearing, Mr. Mazzola referenced his long history of drug

addiction and asked for another chance. The trial court and Mr. Mazzola also engaged

in the following exchange:

       {¶5}   “THE COURT: You stole $925 worth of stuff. How much of that have you

paid back to the victim?

       {¶6}   “THE DEFENDANT: She’s getting everything back –

       {¶7}   “THE COURT: How much have you paid back to the victim?

       {¶8}   “THE DEFENDANT: I just got my job a month ago. She’s going to get her

- - I’m getting my income tax check. She will get every penny.”

       {¶9}   The trial court then noted that Mr. Mazzola had been convicted of 24

different crimes, with ten of them involving theft. The trial court also referenced Mr.

Mazzola’s numerous prior opportunities on probation, his unsuccessful completion of the

Northeast Ohio Community Alternative Program, and as well as two prior prison terms.

       {¶10} Ultimately, the trial court imposed a sentence of incarceration of 36 months

and ordered Mr. Mazzola to make restitution to the victim in the amount of $925.




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          {¶11} Mr. Mazzola now appeals, bringing the following assignments of error for

our review:

          {¶12} “[1.] The trial court erred by sentencing the appellant to the maximum term

of incarceration available.

          {¶13} “[2.]   The trial court erred and abused its discretion by ordering that

appellant pay restitution.”

                                     Standard of Review

          {¶14} Our consideration of a felony sentence is governed solely by R.C.

2953.08(G)(2). State v. Lough, 11th Dist. Trumbull No. 2015-T-0093, 2016-Ohio-3513,

¶10; See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶12. That provision

states:

          {¶15} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

          {¶16} “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 of review is not

whether the sentencing court abused its discretion. The appellate court may take any

action authorized by this division if it clearly and convincingly finds either of the following:

          {¶17} “(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;

          {¶18} “(b) That the sentence is otherwise contrary to law.”




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                                     Maximum Prison Term

        {¶19} Under his first assignment of error, Mr. Mazzola argues that the trial court

abused its discretion in imposing the maximum prison term of 36 months.1

        {¶20} Specific findings are no longer required before the trial court imposes the

maximum sentence. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶37; State v.

Aldrich, 11th Dist. Ashtabula No. 2017-A-0033, 2017-Ohio-8944, ¶33.                         Therefore,

“appellate review is limited to determining whether the maximum sentence is otherwise

contrary to law.” Aldrich at ¶33.

        {¶21} The test for deciding whether the sentence is contrary to law is “if the term

falls within the statutory range for that particular offense and the record demonstrates that

the trial court considered the purposes and principles of felony sentencing, as stated in

R.C. 2929.11, and the sentencing factors seriousness and recidivism, as delineated in

R.C. 2929.12.” Lough at ¶18.

        {¶22} Mr. Mazzola pleaded guilty to burglary, a third-degree felony. R.C.

2929.14(A)(3)(b) states that the prison term for a third-degree felony “shall be nine,

twelve, eighteen, twenty-four, thirty, or thirty-six months.” Given that Mr. Mazzola was

sentenced to 36 months, the term unquestionably falls within the statutory range.

        {¶23} Furthermore, in the sentencing entry, the trial court specifically stated, in

imposing the term, that it considered the principles and purposes of sentencing under

R.C. 2929.11 and balanced the seriousness and recidivism factors of R.C. 2929.12.




1. Although Mr. Mazzola references an “abuse of discretion” standard, the Ohio legislature modified the
standard of appellate review of felony sentences through the enactment of Am. Sub. H.B. No. 86 (2011).
See Lough at ¶10.


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         {¶24} Mr. Mazzola asserts that his extensive criminal history was directly related

to his history of substance abuse. He also states that the victim supported the granting

of some form of community control with substance abuse treatment, while only the trial

court supported incarceration. Mr. Mazzola, however, has failed to cite any authority

demonstrating that such factors render a sentence “contrary to law” under R.C.

2953.08(G)(2).

         {¶25} Since the record demonstrates the trial court complied with its statutory

obligations in imposing the maximum prison term, the first assignment of error is without

merit.

                                    Order of Restitution

         {¶26} Under his second assignment of error, Mr. Mazzola argues that the trial

court erred in ordering him to pay restitution to the victim.

         {¶27} We note that Mr. Mazzola failed to object to the trial court’s order of

restitution. “Failure to object to the court’s order of restitution * * * constitutes a waiver of

all error except plain error.” State v. Carroll, 11th Dist. Ashtabula Nos. 2017-A-0030 &

2017-A-0031, 2018-Ohio-1884, ¶48, quoting State v. Bernadine, 11th Dist. Portage No.

2010-P-0056, 2011-Ohio-4023, ¶26.

         {¶28} Crim.R. 52(B) provides: “[p]lain error or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” This court

will recognize plain error “with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” State v. Bielek, 11th Dist. Lake No.

2010-L-029, 2010-Ohio-5402, ¶14, quoting State v. Landrum, 53 Ohio St.3d 107, 111

(1990).




                                               5
       {¶29} A court imposing a sentence upon a felony offender may order the offender

to make restitution “to the victim of the offender’s crime * * * in an amount based on the

victim’s economic loss.” R.C. 2929.18(A)(1). R.C. 2929.01(L) defines “economic loss”

as “any economic detriment suffered by a victim as a direct and proximate result of the

commission of an offense * * *.”

       {¶30} However, R.C. 2929.19(B)(5) provides: “Before imposing a financial

sanction under section 2929.18 of the Revised Code * * *, the court shall consider the

offender’s present and future ability to pay the amount of the sanction * * *.”

       {¶31} R.C. 2929.18 “does not require a court to hold a hearing on the issue of a

defendant’s ability to pay; rather, a court is merely required to consider the offender’s

present and future ability to pay.” Carroll at ¶51, quoting Bielek at ¶11. “However, some

evidence must be present in the record to indicate that the trial court considered an

offender’s present and future ability to pay.” Id., quoting State v. Sampson, 11th Dist. No.

2007-L-075, 2007-Ohio-7126, ¶14. A trial court properly considers an offender’s present

and future ability to pay when it indicates it has done so in its judgment entry. Bielek at

¶12. In addition, “[a]dequate compliance with the statute may be had when the record

indicates a court has considered a pre-sentence investigation report.” Carroll at ¶52.

       {¶32} Mr. Mazzola claims the trial court did not consider his future ability to pay

restitution. However, the record directly refutes this claim. At the sentencing hearing, Mr.

Mazzola specifically promised that he would pay the victim back “every penny” from his

“income tax check.”




                                             6
       {¶33} Furthermore, at the sentencing hearing, the trial court specifically stated that

that it had “reviewed the presentence investigation prepared by the Adult Probation

Department” and that Mr. Mazzola “shall, in the future, be able to make restitution.”

       {¶34} Mr. Mazzola further claims he was told at his plea hearing that restitution

would not be required. He also states that the victim did not appear at the sentencing

hearing to request restitution. However, even if true, Mr. Mazzola has failed to cite any

authority demonstrating that such factors are legally significant, especially considering

Mr. Mazzola’s promise to make full restitution and the findings set forth in the trial court’s

sentencing entry.

       {¶35} For these reasons, the second assignment of error is without merit.

       {¶36} The judgment of the Trumbull County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.




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