[Cite as State v. Jones , 2013-Ohio-1925.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 25315 and 25316

v. : T.C. NO. 11CR1114 11CR1116 GARLAND A. JONES II : (Criminal appeal from Defendant-Appellant : Common Pleas Court)

:

. . . . . . . . . . O P I N I O N Rendered on the 10th day of May , 2013.

. . . . . . . . . . MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee CANDI S. RAMBO, Atty. Reg. No. 0076627, 15 W. Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant Garl and A. Jones II appeals from his conviction and2 sentence for two counts of non-support of depe ndents, in violation of R.C. 2919.21(B), all felonies of the fifth degree, in Case No. 2011 CR 1114. Jones also appeals from his conviction and sentence for two counts of non-support of dependents, in violation of R.C. 2919.21(B), all felonies of the fifth degree, in Case No. 2011 CR 1116. Jones filed a timely notice of appeal with this Court on August 13, 2012. {¶ 2} On July 11, 2011, Jones was indicted by Montgomery County Grand Jury for three counts of non-support of dependents in Case No. 2011 CR 1114. On the same day, Jones was indicted in Case No. 2011 CR 1116 fo r four counts of non-s upport of dependents. Jones was placed in the diversion program for the offenses in both cases on August 26, 2011. On February 16, 2012, Jones was unsucce ssfully discharged from the diversion program for failure to appear for appointments and failure to pay towards the restitution

amount. {¶ 3} On March 14, 2012, the trial court i ssued a capias in each case because Jones failed to attend a scheduled court appearance. Jone s was arrested in California and subsequently extradited to Ohio. On June 27, 2012, Jones pled guilty to two counts of non-support of dependents in Case No. 2011 CR 1114, and the State dismissed the remaining count in the indictment. On the sa me day, Jones pled gu ilty to two counts of non-support of dependent s in Case No. 2011 CR 1116, and the State agreed to dismiss the remaining two counts in the indi ctment. Nevertheless, Jones agreed to pay restitution on all seven counts in both indictment s. Disposition was originally set for July 17, 2012, but we have no transcripts of any such proceeding and no judgment entries were prepared reflecting a final disposition.[Cite as State v. Jones , 2013-Ohio-1925.] {¶ 4} On July 31, 2012, Jones appeared for re-sentencing because at a prior scheduled disposition, another judge utilized an incorrect extradition figure. The trial court noted that it intended to impose the correct restitu tion figure in each of Jones’ cases. Jones’ counsel objected, but the trial court overruled the objection a nd proceeded with the final disposition. {¶ 5} Ultimately, the trial c ourt placed Jones on community control for a period not to exceed five years. The trial court orde red Jones to pay court costs, a supervision fee of $50.00, and $130.00 to the Assigned Counsel Budg et Office. Further, the trial court ordered Jones to pay res titution in Case No. 2011 CR 1114 in the amount of $23,987.01, and $14,527.21 in Case No. 2011 CR 1116. Pursuant to the termination entries in both cases, the trial court ordered Jone s to pay the costs of his extradition, which totaled $1,836.95. {¶ 6} It is from this judgment that Jones now appeals. {¶ 7} Jones’ first assignment of error is as follows: {¶ 8} “THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY THE COSTS OF HIS EXTRADITION.” {¶ 9} In his first assignment, Jones conte nds that the trial court erred when it ordered him to pay the costs of his extraditi on. Specifically, Jones argues that the trial court’s order that he pay his ex tradition costs is tantamount to ordering him to pay restitution to a person who is not the victim of his crime. {¶ 10} Initially, we note that Jones relies heavily on a case from the Third District Court of Appeals, State v. Toler , 174 Ohio App.3d 335, 2007-Ohio-6967, 882 N.E.2d 28 (3d Dist.), in support of his argument that the tr ial court erred in asse ssing him the cost of extradition. In Toler , the defendant argued that the trial court erred when it specifically4 “ordered him to pay restitution in the am ount of $694.10 to the Hardin County Sheriff’s
Office for the expenses associated with his extradition .” id . at ¶ 7. On appeal, the Third District held that the trial court erred in imposing the cost of extradition because it incorrectly considered the extradition expenses as restitution. Id . at ¶ 13. The Toler court went on to find: We have found that based upon the plai n language of R.C. 2929.18(A)(1), the General Assembly intended that restitution be available only to the actual victims of the offense. Accordingly, “the right to order restitution is limited to the actual damage or loss caused by the offense of which the defendant is convicted.” With the exceptions of certain circumstances inapplicable to this case, government entities do not constitute “victims” entitled to restitution for their expenditure of public funds in the pursuit of fighting crime. (citations omitted.) Id . at ¶ 11. {¶ 11} In the instant case, the record clearly establishes that the trial court did not consider the costs of Jones’ extradition as an element of the restitution order. During the re-sentencing hearing, the trial court stated as follows: Sir (addressing Jones), based upon and principles of sentencing and the seriousness and recidivism factors, I’ m going to sentence you to community control sanctions for a period not to exceed five years, with the sanctions previously imposed by Judge Gorman, including the restitution previously imposed which included that you se rve a term of intensive probation supervision for a period not to exceed five years; that you pay court costs in5 an amount determined by the Clerk of Courts, a supervision fee of $50.00, the sum of $130.00 to the Assigned Counsel Budget; that you pay restitution in the amount of $23,987.00 in one case – excuse me – and one cent on the one case and $14,527.21 on the other case; that you attend the Goodwill Program and that you obtain full-time verifiable employment; that you attend the Non-Support Court Program; that y ou complete 100 hours of community service; that you provide verificati on that you have completed ten job applications per week; that you abstain from the use of any illegal drugs, drugs of abuse or alcohol; that you be placed on a no-break status; that the extradition costs be assessed to you in the amount of $1,836.95. {¶ 12} Additionally, we note that the judgme nt entry of convic tion in Case No. 2011 CR 1114 lists sanction number four as “a requi rement that the offender pays restitution in the amount of $23,987.01 to the Ohio Child Support Payment Central, in a monthly amount to be determined by that agency.” The judgment entry of conviction in Case No. 2011 CR 1116 also lists sanction number four as “[a] requirement that the offender pays restitution in the amount of $14,5277.31 to the Oh io Child Support Payment Central, in a monthly amount to be determined by that ag ency.” Significantly, however, the judgment entries in Case Nos. 2011 CR 1114 and 2011 CR 1116 both separately list sanction number five as “[a] requirement that the offender pa ys extradition cost in the amount of $1,836.95.” {¶ 13} Upon review, we conclude that it is cl ear from the record that the trial court did not order Jones to pay the cost of his ex tradition as part of th e separate order of restitution he was directed to pay. Thus, Jones’ reliance on the court’s holding in Toler is6 misplaced, and the trial court pr operly ordered him to pay for his extradition from California to Ohio as a portion of the costs of his pr osecution. R.C. 2947.23(A)(1), which governs the trial court’s authority to impose costs on a defendant convict ed of a felony, provides, “[i]n all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution *** and re nder a judgment against the defendant for such costs.” The phrase “costs of prosecu tion” has not been statutorily defined. City of Middleburg Heights v. Quinones , 120 Ohio St.3d 534, 2008-Ohio-6811, 900 N.E.2d 1005, at ¶ 8. The term “cost,” however, has been define d as “the statutory fees to which officers, witnesses, jurors, and others are entitled for th eir services in an action or prosecution, and which the statutes authorize to be taxed and included in the judgment or sentence.” Id ., citing State ex rel. Franklin Cty. Commrs.v. Guilbert , 77 Ohio St. 333, 338, 83 N.E. 80 (1907). “The expenses which may be taxed as costs in a criminal case are those directly related to the court proceedings and are iden tified by a specific stat utory authorization.” Middleburg, at ¶ 8, citing State v. Christy , 3d Dist. Wyandot No. 16-04-04, 2004-Ohio-6963. {¶ 14} R.C. 2949.14, which authorizes the tr ial court to impose the cost of extradition on a felony defendant, provides: Upon conviction of a non-indigent person for a felony, the clerk of the court of common pleas shall make and certify under the clerk’s hand and seal of the court, a complete itemized bill of the costs made in such prosecution, including the sum paid by the board of county commissioners, certified by the county auditor, for the arrest and return of the person on the requisition of the governor, or on the request of the gove rnor to the president of the United7 States, or on the return of the fugitive by a designated agent pursuant to a waiver of extradition except in cases of parole violation. The clerk shall attempt to collect the cost from the person convicted. {¶ 15} Therefore, under R.C. 2947.23(A)(1) and R.C. 2949.14, the trial court may impose the cost of extradition upon a non-indigent felony defendant if certain criteria are met. Both judgment entries in Ca se Nos. 2011 CR 1114 and 2011 CR 1116 contain a provision that states as follows, “[i]f applicab le in this case, the defendant is hereby ORDERED to pay extradition costs in the amount of $1,836.95, to the Montgomery County Prosecuting Attorney’s Office and Judgment is hereby GRANTED against the defendant, Garland A. Jones II, for said extradition co sts to be paid to the Montgomery County Prosecuting Attorney’s Office through the Montgomery C ounty Clerk of Courts .” By ordering Jones to pay the extraditi on costs to the prosecutor’s office through the Montgomery County Clerk of Courts, the trial court complied with th e statutory procedure set forth in R.C. 2949.14. Moreove r, unlike the trial court in Toler , the trial court in the instant case properly considered extradition costs as a cost of prosecution pursuant to R.C. 2947.23(A)(1), both separate and apart fro m any restitution that was ordered. {¶ 16} Lastly, we note that the trial court erre d by ordering Jones to pay the cost of extradition in both Case Nos. 2011 CR 1114 and 2011 CR 1116, when it should have assessed those costs in one of the cases to a void a double payment. In this case, the State concedes this was error. Accordingly, we v acate the cost of extradition ordered in Case No. 2011 CR 1116. {¶ 17} Jones’ first assignment of error is overruled in part and sustained in part.8 {¶ 18} Jones’ second assignment of error is as follows: {¶ 19} “THE TRIAL COURT MAY HAVE ERRED IN RESENTENCING APPELLANT OVER HIS OBJECTION.” {¶ 20} In his second assignment, Jones argues that the trial court erred when it re-sentenced him over his objection. Specifically , Jones asserts that the trial court should have held a hearing to determine whether he had willfully failed to comply with the diversion program and whether he had the ability to pay child support in the amounts required by the diversion program. {¶ 21} It is undisputed that after being pl aced in the diversion program, Jones moved to California and did not return to Oh io. Once he reached California, Jones stopped making his payments pursuant to the restitu tion order in place, thus precipitating his extradition to Ohio. By absconding to Calif ornia and discontinuing his child support payments, Jones willfully failed to comply with the terms of the diversion program. Additionally, while he did object to the re-sente ncing conducted by the tr ial court, there is no evidence in the record that Jones ever requested that the court hold a hearing to determine whether he had the ability to pay his child s upport in the amounts required by the diversion program. Thus, the trial court did not err when it overruled Jones’ objection and proceeded to re-sentence him on July 31, 2012. {¶ 22} Jones’ second assignment of error is overruled. {¶ 23} Jones’ third assignment of error is as follows: {¶ 24} “THE TRIAL COURT ERRED IN ORDERING RESTITUTION FIGURES THAT APPEAR TO HAVE BEEN ACCRUED OUTSIDE THE APPLICABLE INDICTED9 TIME PERIODS.” {¶ 25} In his third assignment, Jones argues that the trial court erred when it calculated the restitution amounts he was required to pay. Sp ecifically, Jones asserts that the restitution amounts contained in either judgment entry in Case Nos. 2011 CR 1114 and 2011 CR 1116 are incorrect and represent the suppor t arrearages for the entire existence of the support order rather than only the applicab le periods contained in the indictments. {¶ 26} Initially, we note that Jones agreed to pay restitution on all seven counts contained in the indictments in Case Nos. 2011 CR 1114 and 2011 CR 1116, even those counts that were dismissed at the plea hearing prior to sentencing. Therefore, the trial court’s restitution order should ha ve contained the child support arrearages for the indicted periods on all seven count s in both indictments. {¶ 27} Upon review of Jones’ pre-sentence inve stigation report (PSI ), the trial court only ordered payment of the restitution for the s upport arrearages as they appeared during the applicable periods of the indictment. In Case No. 2011 CR 1114, the PSI specifically stated that “[t]he total amount of restitution owed for the above indicted time periods is $23,987.01.” The PSI in Case No. 2011 CR 1116 also stated that “[t]he total amount of restitution owed for the above indicted time periods is $14,527.21.” As previously mentioned, these amounts are the same support figu res the trial court orde red Jones to pay in restitution. We note that the PSI indicates that according to the Ohio Child Support Enforcement Agency, the full amount Jones owes in arrearages in each case is $26,554.01 and $19,940.47 respectively, in Case Nos. 2011 CR 1114 and 2011 CR 1116. The fact that the restitution amounts ordered to be paid by the trial court are lower th an the total arrearage10 amounts further establishes that the trial cour t did not order Jones to pay any amounts that accrued outside the indicted periods. We also note that Jones did not object to the restitution order at his re-sentencing hearing on July 31, 2012. Thus, we conclude that the trial court ordered J ones to pay only the restitution am ounts in Case Nos. 2011 CR 1114 and 2011 CR 1116 that accrued during the indicted time periods. {¶ 28} Jones’ third assignment of error is overruled. {¶ 29} Jones’ fourth assignment of error is as follows: {¶ 30} THE TRIAL COURT ERRED IN ORDERING RESTITUTION WITHOUT CONSIDERATION FOR APPELLANT’S ABILITY TO PAY SAME. {¶ 31} In his fourth assignment, Jones contends that the tria l court failed to consider his future ability to pay when it or dered approximately $40,000.00 in restitution. {¶ 32} A trial court abuses its discretion when it orders restitution that does not bear a reasonable relationship to th e actual financial loss suffered. State v. Williams , 34 Ohio App.3d 33, 516 N.E.2d 1270 (2d Dist.1986). Therefore, we review a tria l court’s order of restitution under an abuse of discretion standard. See, e.g. , State v. Naylor, 2d Dist. Montgomery No. 24098, 2011-Ohio-960, ¶22. “The a buse of discretion st andard is defined as ‘[a]n appellate court’ s standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.’” State v. Boles, 2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶18, quoting Black’s Law Dictionary, Eighth Edition (2004), at 11. “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Citation omitted.) It is to be expected that most11 instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions th at are unconscionable or arbitrary. A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not e nough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of counter vailing reasoning processes that would support a contrary result. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). {¶ 33} R.C. 2929.18(A)(1) allows a trial court to order, as a financial sanction, an amount of restitution to be paid by an o ffender to his victim “based on the victim’s economic loss. * * * If the court imposes restitution, the court ma y base the amount of restitution it orders on an amount recommended by the victim, the offender, a pre-sentence investigation report, es timates or receipts indicating the co st or repairing or replacing property, and other information, provided that the amount the cour t orders as restitution shall not exceed the amount of the economic loss suffere d by the victim as a direct and proximate result of the commission of the offense. If th e court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount. *
* * ” {¶ 34} We begin by addressing Jones’ claim that the trial court failed to consider his ability to repay his victim before ordering restitution. The record does not support his claim.12 {¶ 35} R.C. 2929.19(B)(6) imposes a duty upon th e trial court to “consider the offender’s present or future ability to pay” before imposing any fi nancial sanctions under R.C. 2929.18. See, e.g. , State v. Martin, 140 Ohio App.3d 326, 338, 2000-Ohio-1942, 747 N.E.2d 318 (4th Dist.), citing State v. Stevens , 12th Dist. Clinton No. CA98-01-001, 1998 WL 640889 (Sept. 21, 1998). However, the statute establishes no particul ar factors for the court to take into cons ideration, nor is a hearing necessary before making th is determination. Id . A trial court may comply with R.C. 2929.19(B)(6) by considering a pre-sentence investigation report, which includes information about th e defendant’s age, health, education, and work history. Id

. {¶ 36} In this case, both the transcript of the plea hearing and sentencing, as well as the judgment entry of convicti on indicate that the trial cour t considered the pre-sentence investigation report prior to or dering Jones to pay restitution. Furthermore, a review of Jones’ PSI establishes that at the time of the hearing he was forty-four years of age and suffered from no health issues which would render him incapable of having adequate financial resources to pay the re stitution ordered by the trial c ourt. Jones is a high school graduate with some community college experience. Jones spent four years in the Air Force. The PSI also indicates that Jones has a significant work history. Under these circumstances, we conclude that the trial cour t did not fail to consid er Jones’ present or future ability to pay restitution. {¶ 37} Jones’ fourth assi gnment is overruled. {¶ 38} Jones’ fifth and final a ssignment is as follows: {¶ 39} “APPELLANT’S COUNSEL WAS INEFFECTIVE FOR FAILING TO13 RAISE THE DISPOSITIVE DEFENSE THAT ONE OF THE INDICTMENTS HAD BEEN FILED FOR CRIMES THAT TOOK PLACE BEYOND THE STATUTE OF LIMITATIONS.” {¶ 40} In his final assignment, Jones argues that his counsel was ineffective for failing to argue that Count I in Case N o. 2011 CR 1114 was filed beyond the statute of limitations and should have been dismissed. Specifically, Jones notes that Count I of the indictment charges a period of non-support beginning April 1, 2005, and ending March 31, 2007. According to Jones, because a portion of the time period stated in Count I occurred outside the six-year statute of limitations, his counsel should have filed a motion to dismiss and was ineffective for failing to do so. Jones’ argument has no merit. {¶ 41} “We review the alleged instances of ineffective assistan ce of trial counsel under the two prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland , 466 U.S. at 688. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonabl eness and that his errors we re serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time , and a debatable deci sion concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal14 citation omitted). State v. Mitchell , 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31. {¶ 42} An appellant is not deprived of eff ective assistance of c ounsel when counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown , 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a cla im of ineffective assistance of counsel is not whether couns el pursued every possible defens e; the test is whether the defense chosen was objectively reasonable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing c ourt may not second-guess decisions of counsel which can be considered matters of tr ial strategy. State v. Smith , 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable st rategic and tactical decisi ons may not form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had been available. State v. Cook , 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992). {¶ 43} Pursuant to R.C. 2901.13(A)(1)(a), th e statute of limitations for felony non-support of dependents is si x years. R.C. 2901.13(D) states that “[a]n offense is committed when every element of the offense occurs. In the case of an offense of which an element is a continuing course of conduct, the period of limita tion does not begin to run until such course of conduct or th e accused’s accountability for it te rminates, whichever occurs first.” {¶ 44} Felony non-support of dependents c onstitutes a continuing course of conduct. See State v. Rogers , 11th Dist. Lake No. 93-L-180, 1994 WL 738447 (Dec. 23, 1994); State v. Harrison , 9th Dist. Summit No. 9930, 1981 WL 3942 (Apr. 15, 1981), (holding that under R.C. 2919.21[non-supporrt of dependents], the stat ute of limitations does not begin to run until such course of conduct or the accused’s accountability for it15 terminates, whichever comes first). {¶ 45} In the instant case, Count I in the 2011 CR 1114 indictment alleges that Jones failed to provide support for G.A. J. from April 1, 2005, through March 31, 2007. Jones’ continuing course of conduct in Count I, therefor e, ended on March 31, 2007. Thus, on March 31, 2007, the six-year statute of limitati ons began to run. Six years from March 2007, is March 31, 2013. Accordingly, the indic tment containing Count I in Case No. 2011 CR 1114 that was filed on July 11, 2011, is clearly within the statute of limitations for that offense. Because there was no issue regarding the statute of limitations for Count I, Jones’ counsel was not ineffective for failin g to file a motion to dismiss. {¶ 46} Jones’ fifth and final assi gnment of error is overruled. {¶ 47} The trial court erred when it ordered Jones to pay the cost of extradition in both Case Nos. 2011 CR 1114 and 2011 CR 1116, when it should have been ordered in one of the cases. Accordingly, we vacate the cost of extrad ition ordered in Case No. 2011 CR 1116. In all other respects, the judgme nt of the trial court is affirmed.

. . . . . . . . . . FROELICH, J. and HALL, J., concur. Copies mailed to: Michele D. Phipps Candi S. Rambo Hon. Mary Katherine Huffman