[Cite as State v. Rice , 2022
- Ohio
- 1068.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO , :

Plaintiff

- Appell ee , : No. 110 674 v. : ALAN RICE , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 31, 2022

C riminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 20
- 655279

- A
Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Alaina Hagans , Assistant Prosecuting Attorney, for appellee

. Anna Markovich , for appell ant

.

SEAN C. GALLAGHER , A. J .:

A ppellant Alan Rice (“Rice”) appeals his sentence to the maximum prison term for his robbery conviction and the trial court’s imposition of financial
sanctions

. Upon review, we affirm the judgment of the trial court

.In December 2019, Rice was charged under a seven

- count

indictment. Ultimately, he entered a plea of guilty to the following counts:
Count 2 (As amended) : Robbery in violation of R.C. 2911.02(A)(1), a felony of the second degree, with one - and three

- year firearm specifications and a forfeiture of a weapon specification

. C ount 3 (As amended) : Having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree, with a forfeiture of a weapon specification. Count 5 (As charged) : Tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree, with a forfeiture of a weapon specification. Count 7 (As charged) : Drug possession in violation of R.C. 2925.11(A), a felony of the fifth degree, with a forfeiture of a weapon specification. The remaining counts were nolled. The trial court accepted Rice’s guilty plea and ordered a presentence

- investigation report (“PSI report”).

At sentencing, t he trial court imposed a total aggregate prison term of 11 years, ordered Rice to pay a fine of $250 on each count for a total fin anc ial
sanction of $ 1,000, imposed costs, an d ordered Rice to forfeit his weapon. In the sentencing entry, the trial court stated that it “considered all required factors of the law” and found that “prison is consistent with the purpose of R.C. 2929.11.” Ri ce timely filed this appeal.

Under his first assign ment of error, Rice c hallenges the trial court’s imposition of the maximum prison term of eight years on the base charge for the robbery conviction. Rice argue s that the trial court misapplied R.C. 2929.11 and
2929.12 . More specifically, he claims that the tr ial court failed to consider the purposes of felony sentencing listed under R.C. 2929.11 and failed to balance therecidivism and seriousness factors set forth under R.C. 2929.12
. Rice maintain s that

although the PSI report indicates a high likelihood of recidivism, the trial court should have considered Rice’s mental

- health issues and substance

- abuse addiction as mitigating factors . Rice asserts that the record demonstrates that the maximum

se ntence imposed is not warranted and is contrary to law.

An appellate court’s review of a felony sentence is governed by R.C. 2953.08(G)(2). See State v. Jones , 163 Ohio St.3d 242, 2020

- Ohio

- 6729, 169 N.E.3d 649, ¶ 27, citing State v. Marcum , 146 Ohio St.3d 516, 2016

- Ohio

- 1002, 59 N.E.3d 1231, ¶ 21. Under R.C. 2953.08(G)(2), an appellate court “may increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter * * * for resentencing” if it “clearly and conv incingly finds either of the following ” : (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 C ode, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law. The statutory findings referenced in R.C. 2953.08(G)(2)(a) are not at issue here. As t he Ohio Supreme Court clarified in Jones , R.C. 2953.08(G)(2)(a) “clearly does no t provide a basis for an appellate court to modify or vacate a sentence if it concludes that the record does not support the sentence under R.C. 2929.11 and R.C. 2929.12[.]” Id . at ¶ 31.

“R.C. 2953.08(G)(2)(b) permits an appellate court to modify or

vac ate a sentence if it clearly and convincingly finds that the sentence is ‘otherwisecontrary to law.’” Jones at ¶ 32. “ A sentence is contrary to law if it falls outside the

statutory range for the offense or if the sentencing court fails to consider the purposes and principles of sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.” State v. Angel , 8th Dist. Cuyahoga No. 110456, 2022

- Ohio

72, ¶ 8 , citing State v. Pawlak , 8th Dist. Cuyahoga No. 103444, 2016

- Ohio

- 5926, ¶ 58.
R. C. 2929

. 11 address es the overriding purposes of felony sentencing, while R.C. 2929.12 addresses factors that are to be taken in account when imposing

a sentence

. Jones , 163 Ohio St.3d 242, 2020

- Ohio

- 6729, 169 N.E.3d 649, at ¶ 18

- 19
. Pursuant to R.C. 2929.11(A), t he three overriding purposes of felony sentencing

are “ to protect the public from future crime by the offender and others,” “ to punish the offender, ” and “ to p romote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. ” Additionall y, pursuant to R.C. 2929.11(B), the sentence imposed “shall be reasonably calculated to achieve the three overriding purposes of felony sentencing * * *, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with s entences imposed for similar crimes committed by similar offenders .”

R.C. 2929.12 gives the sentencing court “discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in [R.C. 2929.11]” when imposi ng a sentence upon a felony offender

.R.C. 2 929.12(A). R. C. 2929.12 sets forth a nonexhaustive list of factors relating to

the seriousness of the conduct and the likelihood of recidivism that the trial court shall consider in exercising that discretion

. Id

.

“[N]either R.C. 2929.11 nor 2929.12 requires a trial court to make any specific factual findings on the record.” Jones at ¶ 20, citing State v. Wilson , 129 Ohio St.3d 214, 2011

- Ohio

- 2669, 951 N.E.2d 381, ¶ 31; State v. Arnett , 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Further, “[n]othing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitu te its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” Jones at ¶ 42

.

The record in the present case plainly shows that the prison term imposed by the trial court was within the statutory range and that the court considered the purposes of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12

. The PSI report sets forth the underlying facts pertaining to the robbery and related offenses. The PSI report also details Rice’s criminal history, which dates back to 2003, includes personal and other information, and notes Rice’s mental

- health issues and substance

- abuse history. At sentencing, the trial court heard from Rice concerning the robbe ry and commented on Rice’s extensive criminal history , which included , among other offenses , rape, felonious assaults, assaults, probation violations, aggravated robberies, receiving stolen property, having weapons while under disability, domestic violence , and violating protection orders . The trial court also heard from defense counsel and theprosecutor. T he court ’ s journal entry stated that the trial court had considered all

required factors set forth by the law. “A trial court ’ s statement in its sentencing journal entry that it considered the required sentencing factors alone is sufficient to fulfill its obligations under R.C. 2929.11 and 2929.12.” State v. Levison , 8th Dist. Cuyahoga No. 110281, 2021

- Ohio

- 3601, ¶ 17, citing St ate v. Phillips , 8th Dist. Cuyahoga No. 110148, 2021

- Ohio

- 2772, ¶ 8. As such, the maximum sentence imposed on the robbery count is not contrary to law and t he first assignment of error is overruled

. Under his second assignment of error, Rice claims the tr ial court erred by imposing financial sanctions on appellant without considering his ability to
pay. R.C. 2929.19(B)(5) provides as follows: “Before imposing a financial sanction under [R.C. 2929.18 ] or a fine under [R.C. 2929.32 ] , the court shall consider the offender’s present and future ability to pay the amount of the sanction or fine.” “There are no express factors that must be taken into consideration nor specific findings that must be made by the court on the record, but there must be some evidence in the record that the trial court considered the defendant ’ s ability to pay.” State v. Schneider , 8th Dist. Cuyahoga No. 96953, 2012

- Ohio

- 1740, ¶ 10, citing State v. Jacobs , 189 Ohio App.3d 283, 2010

- Ohio

- 4010, 938 N.E.2d 79 , ¶ 11 (8th Dist.). A trial c ourt may satisfy this requirement when the record shows that the court considered the PSI report that contains detailed information regarding thedefendant’s age, education, physical and mental health, finances , and employment

history. See State v. Brown , 2020
- Ohio

- 4474, 158 N.E.3d 972, ¶ 43 (8th Dist.)

.

Rice argues that the record shows he did not have the ability to pay the fines imposed by the trial court. Rice states that he was declared indigent and appoin ted counsel. He also states that t he PSI report shows that at the time of sentencing, he was 32 years old, he only finished 1 0th grade, he was unemployed, he was behind on child support, his finances were poor, and he was living with this mother. H e furt her states that he was sentenced to 11 years of imprisonment, not community control. He maintains the totality of circumstances demonstrates the court failed to consider his present and future ability to pay the fine s .

“The fact that a defendant is ‘in digent’ or is represented by appointed counsel does not preclude a trial court from imposing financial sanctions.” State v.
Brown , 2020
- Ohio

- 4474, 158 N.E.3d 972, ¶ 42 (8th Dist.), citing State v. Nitsche , 2016

- Ohio

- 3170, 66 N.E.3d 135, ¶ 76 (8th Dist.); see also State v. Cruz , 8th Dist. Cuyahoga No. 106098, 2018

- Ohio

- 2052, ¶ 28. Likewise, a lengthy prison sentence does not necessarily preclude a trial court from imposing financial sanctions.
Brown at ¶ 42, citing Nitsche at ¶ 76.

In this case , the trial court imposed a $250 fine for each count for a total financial sanction of $1,000 . Rice did not object the court’s imposition of the fines upon him. A

lthough the trial court did not specifically inquire into Rice’s present or future ability to pay the fin ancial sanction , the court ordered a PSI report

. The PSI report reflected that Rice was only 32 years old and was living with hismother with no rent. Rice was recently married, and he indicated that his wife and

mother support him financially. Although Rice was not employed and was behind on his child

- support payments, t he record shows he had posted a $50,000 bond. This information allowed the trial court to make an informed decision about Rice’s present and future ability to pay the fine

.

Rice also challenges the trial court’s imposition of costs. Because the imposition of the costs of prosecution is mandatory under R.C. 2947.23(A)(1)(a), a trial court is not required to consider a defendant’s ability to pay before imposing

cos ts against the defendant. Brown at ¶ 37, citing State v. Taylor , 161 Ohio St.3d
319, 2020
- Ohio

- 3514, 163 N.E.3d 486, ¶ 6. Although the court must impose costs, pursuant to R.C. 2947.23(C), “[t]he court retains jurisdiction to waive, suspend or modify the payment of the costs of prosecution * * * at the time of sentencing or any time thereafter. ” (Emphasis added

. ) Because there is nothing in the record to indicate that Rice objected to or at any time moved to waive, suspend , o r modify the payment of court costs, the trial court did not err in imposing costs.

Rice’s second assignment of error is overruled. Judgment affirmed

. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reaso nable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’sconviction having been affirmed, any bail pending appeal is terminated. Cas e

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

_______________________________ ____ _ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
MICHELLE J. SHEEHAN , J ., and LISA B. FORBES , J., CONCUR