[Cite as State v. Jones , 2019-Ohio-4938.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY

STATE OF OHIO, CASE NO. 17-19-08 PLAINTIFF-APPELLEE,

v. JAVONTE E. JONES, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court Trial Court No. 19CR000052 Judgment Affirmed Date of Decision: December 2, 2019

APPEARANCES: Jim R. Gudgel for Appellant Timothy S. Sell for AppelleeCase No. 17-19-08

-2- WILLAMOWSKI, J. {¶1} Defendant-appellant Javonte E. Jones (“Jones”) appeals the judg ment of the Shelby County Court of Common Pleas, alleging (1) that t he trial court abused its discretion in sentencing him; (2) that his trial counsel wa s ineffective; and (3) that the trial court’s order as to restitution was not based up on competent, credible evidence. For the reasons set forth below, the judgment of the trial court is affirmed. Facts and Procedural History {¶2} On February 18, 2019, Jones and Amonte Clayton (“Clayton”) were inside a Wal-Mart. Doc. 10. Clayton used a crowbar to force o pen a metal cage that stored a number of iPads. Doc. 10. In this process, the metal cage was damaged. Jones and Clayton removed nine iPads, left the store, and got in a vehicle. At roughly 5:30 A.M., Jones drove out of the Wal-Mart parking l ot. Doc. 10. However, Officer Anderson Bradley (“Officer Bradley”) noticed t hat Jones did not have his headlights activated. Doc. 10. At this point, Office r Bradley activated his lights to initiate a traffic stop, but Jones did not stop his v ehicle and drove onto the interstate. Doc. 10. Officer Bradley continued to pursue Jone s at speeds that ranged from eighty to ninety-five miles per hour. Doc. 10. The polic e deployed spike strips in Jones’s path of travel. Doc. 10. Jones’s vehicle came to a stop only after the spike strips disabled his vehicle. Doc. 10. In the vehicle, t he police found nine iPads, two shirts, and a tote bag that had been stolen from Wal -Mart. Doc. 10.Case No. 17-19-08

-3- {¶3} On February 21, 2019, Jones was indicted on one count of failur e to comply with the order or signal of an officer in violation of R .C. 2921.331(B); one count of theft in violation of R.C. 2913.02(A)(1); and one coun t of vandalism in violation of R.C. 2909.05(B)(1)(b). Doc. 1. On March 26, 2019 , Jones filed a petition to enter a plea of guilty. Doc. 44. This petition wa s based upon an underlying plea agreement. Doc. 44. Pursuant to this agreemen t, Jones pled guilty to failure to comply with the order or signal of an officer, an d the State dismissed the charges of theft and vandalism. Doc. 44, 54. On May 13, 2 019, the trial court entered its judgment entry of sentencing. Doc. 54. The trial court sentenced Jones to twenty-four (24) months in prison. Doc. 54. The trial cour t also ordered Jones to pay Wal-Mart restitution in the amount of $7,152.22. Doc. 5 4. {¶4} The appellant filed his notice of appeal on May 31, 2019. Doc. 65. On appeal, Jones raises the following assignments of error: First Assignment of Error

The Court abused its discretion by imposing a prison sentence o f 24 months. Second Assignment of Error Defense Counsel was ineffective for not requesting a separate restitution hearing. Third Assignment of Error

The trial court committed reversible error under Section 2929.1 8 when it sentenced the Defendant-Appellant to pay restitution inCase No. 17-19-08

-4- the amount of $7,152.55 without a reasonable degree of certaint y based on competent and credible evidence. First Assignment of Error {¶5} Jones argues that the trial court did not properly balance the seriousness and recidivism factors in imposing his sentence. Legal Standard {¶6} Trial courts are to sentence convicted felons in accordance wit h the overriding purposes of felony sentencing, which are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. R.C. 2929.11. “To effectuate compliance with these overriding purposes, the Ohio Revised Code requires the trial court to consider a number of f actors listed in R.C.

2929.12.” State v. Walton , 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. The

R.C. 2929.12 factors direct the trial court to evaluate the ser iousness of the offense

and the likelihood of recidivism. R.C. 2929.12. Although the trial court must consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and t he sentencing factors listed in R.C. 2929.12, the sentencing court is not required to ‘state on the record that it considered the statutory criteria or discuss[ed] them.’ State v. Polick , 101 Ohio App.3d 428, 431 [655 N.E.2d 820] (4th Dist. 1995). A trial cou rt’s statement that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under th e sentencing statutes.Case No. 17-19-08

-5- State v. Maggette , 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31. {¶7} Appellate courts defer to the broad discretion of the trial cou rt in matters of sentencing. 1 State v. Witt , 3d Dist. Auglaize No. 2-17-09, 2017-Ohio-7441, ¶ 12. If the defendant establishes by clear and convincing evidence t hat his or her sentence is “(1) contrary to law and/or (2) unsupported by the record,” an appellate court has the authority, pursuant to R.C. 2953.08(G)(2), “to increase, re duce, or otherwise modify a sentence * * *.” State v. McGowan , 147 Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1. Clear and convincing evidence is that measure or degree of proo f 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 th e facts sought to be established.

State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Legal Analysis {¶8} The trial court, at the sentencing hearing and in its judgment entry, stated that it considered the purposes and principles of senten cing in R.C. 2929.11

1 We note that the trial court is given discretion in applying t he statutory factors in the process of determining an appropriate sentence. A misapplication of these factors in s entencing that rises to the level of an abuse of discretion is clearly and convincingly contrary to law. Thus, w e examine the record to determine whether the trial court clearly and convincingly failed to act in accordanc e with the laws governing the imposition of sentences.Case No. 17-19-08

-6- and the seriousness and recidivism factors listed in R.C. 2929. 12. Doc. 54. Tr. 10. See Magette, supra , at ¶ 31. Further, at the sentencing hearing, the trial court noted that Jones had a past criminal record; that Jones has “had diff iculty accepting responsibility for * * * [his] conduct in this”; and that Jones had two other offenses that were dismissed pursuant to the plea agreement. Tr. 10-11. The trial court also mentioned that Jones fled the scene of the crime at speeds that neared one hundred miles per hour and had to be stopped using spike strips. Tr. 1 1. {¶9} Further, when Jones pled guilty, he was informed that he could be sentenced up to thirty-six months in prison. Doc. 44. Thus, n ot only is this sentence within the range permitted by statute, but the imposed sentence falls short of what Jones was aware that he could receive by pleading guilty. Afte r reviewing the evidence in the record, we conclude that some competent, credib le evidence supports Jones’s sentence. Jones has not demonstrated, by clea r and convincing evidence, that his sentence is contrary to law. Thus, Jones’s first assignment of error

is overruled. Second Assignment of Error {¶10} Jones argues that he was denied his right to the effective assi stance of counsel because his attorney did not request a separate restitu tion hearing. Legal Standard {¶11} “Under Ohio law, ‘a properly licensed attorney is presumed to c arry out his duties in a competent manner.’” State v. Beaver , 3d Dist. Marion No. 9-17-Case No. 17-19-08

-7- 37, 2018-Ohio-2438, ¶ 26, quoting State v. Gee , 3d Dist. Putnam No. 12-92-9, 1993 WL 270995 (July 22, 1993). In order to prove an ineffective as sistance of counsel claim, the appellant must carry the burden of establishing (1) that his or her counsel’s performance was deficient and (2) that this deficient performance prejudiced the defendant. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). {¶12} The first prong “requires showing that counsel made errors so s erious that counsel was not functioning as the ‘counsel’ guaranteed th e defendant by the

Sixth Amendment.” State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 61. “Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance.” State v. Pellegrini , 3d Dist. Allen No. 1-12-30, 2013-Ohio-141, ¶ 40. In order to establish prejudice, “the defendant must show a reasonable probability that, but for counsel’s errors, t he result of the proceeding would have been different.” State v. Davis , 3d Dist. Seneca No. 13-16- 30, 2017-Ohio-2916, ¶ 36, quoting State v. Bibbs , 3d Dist. Hancock No. 5-16-11, 2016-Ohio-8396, ¶ 13. {¶13} “If the appellant does not establish one of these two prongs, t he appellate court does not need to consider the facts of the case under the other prong

of the test.” State v. Smalley , 3d Dist. Henry No. 7-18-30, 2019-Ohio-1572, ¶ 5, citing State v. Walker , 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.). “Appellate

courts are to examine the record to determine whether the defen dant had a fairCase No. 17-19-08

-8- proceeding under the circumstances and whether substantial just ice was done.” State v. McWay , 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24, citing State v.

Hester , 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of th e syllabus. Legal Analysis {¶14} In this case, Jones expressly agreed to pay restitution as part of a plea agreement in which two charges against him were dismissed. Doc . 44. At the beginning of Jones’s sentencing hearing, the State clearly stat ed that the amount of restitution requested by Wal-Mart was $7,152.55. Tr. 7. The S tate obtained this figure from the presentence investigation. Tr. 7. This appare ntly included the costs of the electronics and the damage to the interior of the cage t hat contained the iPads. Tr. 9. At this point, Jones’s counsel, in reference to the amo unt of restitution that Wal-Mart requested, said: “I believe that they [Wal-Mart] would have at least received back the lost or the—the electronics equipment. So I’ m not sure why they couldn’t have sold that. It wasn’t damaged as far as I know.” Tr. 9. {¶15} In response to this statement, the trial court stated that it w as obligated

to order restitution in this case but asked Jones if he wanted to present any

information to contest the amount of restitution that had been presented by WalMart. Tr. 8. After a brief, off-the-record colloquy between J ones and his trial counsel, the Defense indicated that it would not contest the am ount of the damages that Wal-Mart reported. Tr. 9. The trial court stated that it was going to impose theCase No. 17-19-08

-9- amount of restitution as a “joint and several obligation * * * of the co-defendants in

the case.” Tr. 9. {¶16} The trial court then gave Jones another opportunity to contest the amount of restitution at a separate hearing. Tr. 10. Again, d efense counsel engaged in another off-the-record colloquy with Jones. Tr. 11. Jones, who was aware that the amount of restitution that Wal-Mart requested was $7,152.55 , indicated to his trial counsel that he “believe[d] that he[ was] capable of * * * paying restitution and [was] willing to pay restitution in this matter.” Tr. 10. {¶17} Thus, the record indicates that defense counsel effectuated the wishes of Jones in declining the opportunity to have a restitution hea ring. Tr. 10. Jones has not carried the burden of establishing that his trial couns el was ineffective. See

State v. Banks , 2d Dist. Montgomery No. 20711, 2005-Ohio-4488, ¶ 11. After reviewing the record, we do not find any indication that defens e counsel’s performance in this matter fell below the objective standard of reasonableness that is held to attorneys. {¶18} We also note that Jones has not met the burden of proving that he was prejudiced. Jones asserts that the failure of his attorney to request a restitution hearing operated to his prejudice because he was ordered to pay $7,251.55 in restitution. However, the fact that the defense counsel was ef fectuating Jones’s wishes also defeats his argument as to prejudice. In this case , Jones was aware of the amount of restitution that Wal-Mart was requesting. Jones also knew, from hisCase No. 17-19-08

-10- defense counsel’s statements at the sentencing hearing, that th ere were some arguments against the amount of the restitution. The trial cou rt gave Jones two opportunities to contest the amount of restitution. {¶19} However, Jones twice chose not to contest the amount of restitu tion and instead indicated to his counsel that he was willing and ca pable of paying for this amount. Tr. 10. Thus, Jones has not, on appeal, alleged prejudice that resulted from his counsel’s performance. Rather, he has alleged prejudi ce that resulted from his own choices. For these reasons, Jones’s second assignment of error is overruled. Third Assignment of Error {¶20} Jones argues that the trial court’s order for him to pay $7,152 .22 in restitution is not based upon competent, credible evidence. Legal Standard {¶21} R.C. 2929.18(A)(1) authorizes a trial court to impose restituti on as part of a sentence in order to compensate the victim for economic lo ss. State v. Lalain , 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 20. R.C. 2929.18(A) reads, in its relevant part, as follows: If the court imposes restitution, at sentencing, the court shal l determine the amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property , and other information, provided that the amount the court order s as restitution shall not exceed the amount of the economic lossCase No. 17-19-08

-11- suffered by the victim as a direct and proximate result of the commission of the offense. R.C. 2929.18(A)(1). “There must be competent and credible evid ence in the record from which the court may ascertain the amount of restitution to a reasonable degree of certainty.” State v. Estes , 3d Dist. Seneca No. 13-11-14, 2011-Ohio-5740, ¶ 20. {¶22} R.C. 2929.18(A)(1) also provides that “[i]f the court decides t o impose restitution, the court shall hold a hearing on restitution if t he offender, victim, or survivor disputes the amount.” R.C. 2929.18(A)(1). However, “ [a] defendant who does not dispute an amount of restitution, request a hearing, o r otherwise object waives all but plain error in regards to the order of restituti on.” State v. Snowden , 2019-Ohio-3006, --- N.E.3d ---, ¶ 88 (2d Dist.). See State v. Dunham , 5th Dist. Richland No. 13CA26, 2014-Ohio-1042, ¶ 84; State v. Downie , 183 Ohio App.3d 665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 32 (7th Dist.); State v. Ford , 9th Dist. Summit No. 26073, 2012-Ohio-1327, ¶ 6. {¶23} Under Crim.R. 52(A), “[p]lain errors or defects affecting subst antial rights may be noticed although they were not brought to the att ention of the court.” Crim.R. 52(B). “In order to find plain error under Crim.R. 52(B), there must b e an error, the error must be an ‘obvious’ defect in the trial proceedings, and the error must have affected ‘substantial rights.’” State v. Bowsher , 3d Dist. Union No. 14-07-32, 2009- Ohio-6524, ¶ 12, quoting State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). ‘The standard for plain error is whether, but for the error, the outcome of the proceeding clearly would have been otherwise.’ State v. Hornbeck , 155 Ohio App.3d 571, 2003-Case No. 17-19-08

-12- Ohio-6897, 802 N.E.2d 184, ¶ 16 (2d Dist.), citing State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error is taken “only to ‘prevent a manifest miscarriage of justice.’” State v. Davis , 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 23, quoting Long, supra , at paragraph three of the syllabus. State v. Taflinger , 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 17. Under Crim.R. 52(B), “the defendant bears the burden of demonstrating that a plain error affected his substantial rights.” (Emphasis sic.) State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14. Legal Analysis {¶24} Jones, on appeal, seeks to contest the amount of restitution th at the trial court imposed. R.C. 2929.18(A)(1) provides an avenue for a defendant to contest the amount of restitution. R.C. 2929.18(A)(1). Howeve r, Jones chose not

to contest the amount of restitution and did not raise these ar guments before the trial court. Tr. 9-10. In fact, Jones indicated to the trial court that he was “capable” and “willing” to pay the amount of restitution submitted by Wal-Mar t. Tr. 10. Since

Jones did not contest the amount of restitution before the tria l court, Jones has waived all but plain error. {¶25} On appeal, Jones has not carried the burden of demonstrating th at the trial court committed plain error in imposing $7,152.22 in rest itution. In this case,

the trial court based the amount of restitution on the economic losses reported by the victim, Wal-Mart. Doc. 54. Tr. 9. The trial court had th e authority, under R.C. 2929.18(A)(1), to base the amount of the restitution “on an amo unt recommendedCase No. 17-19-08

-13- by the victim , the offender, a presentence investigation report, estimates o r receipts * * *.” (Emphasis added.) R.C. 2929.18(A)(1). {¶26} The evidence in the record indicates that the trial court acted in accordance with the dictates of R.C. 2929.18(A)(1). After revie wing the evidence in the record, we find no indication of an obvious defect in th e process of imposing restitution. For this reason, Jones’s third assignment of erro r is overruled.

Conclusion {¶27} Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of the Shelby County Court of Common Pleas is

affirmed. Judgment Affirmed SHAW and PRESTON, J.J., concur.

/hls