[Cite as State v. Gorley , 2020-Ohio-3337.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Crai g R. Baldwin, J. -vs- Case Nos. CT2019-0046, CT2019-0047, CT2019-0048, & CT2019-0049 ROBERT C. GORLEY Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case Nos. CR2019-0072, CR2019-0105, CR2019- 0144, & CR2019-0201

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: June 12, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t D. MICHAEL HADDOX CARLOS M. CRAWFORD Prosecutin g Attorne y Crawford | Glankler, LLC Muskin g um Count y , Ohio 52 North Sandusk y Stree t Delaware, Ohio 43015 TAYLOR P. BENNINGTON Assistant Prosecutin g Attorne y Muskin g um Count y , Ohio 27 North Fifth Street

– P.O. Box 189 Zanesville, Ohio 43701Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 2

Hoffman, P.J. {¶1} In Muskingum App. Nos. CT 2019-46, CT2019-47, CT2019-48, and CT 2019-49, defendant-appellant Robert Gorley appeals his convicti ons and sentences entered by the Muskingum County Court of Common Pleas, on six c ounts of violation of a protection order, two counts of theft by deception, and two c ounts of theft, after he entered guilty pleas to the charges. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE 1 {¶2} On April 12, 2019, Appellant pled guilty to a Prosecutor’s Bill of Information in Muskingum County Court of Common Pleas Case No. CR 2019-0201 , on two counts of theft, in violation of R.C. 2913.02(A)(3), felonies of the f ifth degree. On the same day, Appellant pled guilty to six counts of violating a protection o rder with a prior offense, in violation of R.C. 2919.27(A)(1), felonies of the fifth degree, in Case No. CR 2019-0072; one count of theft by deception with a value of $1,000.00-$7,50 0.00, in violation of R.C. 2913.02(A)(3), a felony of the fifth degree, in Case No. CR2019 -0105; and one count of theft by deception with a value of $1,000.00-$7,500.00, with an elderly victim, in violation of R.C. 2913.02(A)(3), a felony of the fourth degree, in Case N o. CR2019-0144. {¶3} The parties made a joint recommendation Appellant be sentenced to six months in prison in each case, and the sentences be served cons ecutively to one another, for an aggregate prison term of 24 months. Appellant agreed to waive the findings necessary for the imposition of consecutive sentences. Appella nt also agreed to make restitution in the amount of $9,265.00 in Case No. CR2019-0201; $5,000.00 in Case No.

1 A Statement of the Facts underlying Appellant’s convictions is not necessary for our disposition of this Appeal.Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 3

CR2019-0105; and $4,160.00 in Case No. CR2019-0144. The State a greed to nolle counts 7-55 of the indictment in Case No. CR2019-0072. {¶4} The trial court accepted Appellant’s guilty pleas and ordered a pre-sentence investigation be completed. Appellant appeared before the tria l court for sentencing on May 20, 2019. After reviewing the pre-sentence investigation r eport which described Appellant’s extensive criminal history, the trial court indicat ed it was not inclined to follow the parties’ joint recommendation. The trial court imposed an aggregate prison term of 12 months in Case No. CR2019-0072. In Case No. CR2019-0105, th e trial court sentenced Appellant to a term of 12 months and ordered him to p ay restitution in the amount of $5,000.00. In Case No. CR2019-0144, the trial court sentenced Appellant to a term of 18 months and ordered him to pay $4,160.00 in restitu tion. In Case No. CR2019-0201, the trial court imposed an aggregate prison term o f 24 months and ordered Appellant to pay restitution in the amount of $9,265.00. The t rial court ordered the sentences in the four cases to run consecutively to one another for a total sentence of 66 months. In addition to the restitution, the trial court also o rdered Appellant to pay court

costs. {¶5} It is from his convictions and sentences Appellant appeals, rai sing the following assignments of error:

I. THE COURT ERRED IN IMPOSING A SENTENCE WHICH WAS

GROSSLY DISPROPORTIONATE TO APPELLANT’S CONDUCT AND

NOT IN ACCORDANCE WITH STATUTES GOVERNING FELONY

SENTENCING.Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 4

II. THE TRIAL COURT ERRED IN IMPOSING RESTITUTION

WITHOUT FIRST CONSIDERING APPELLANT’S ABILITY TO PAY.

III. APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE IN VIOLATION OF APPELLANT’S RIGHTS PURSUANT TO THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION.

I {¶6} In his first assignment of error, Appellant contends the trial court imposed a sentence which was grossly disproportionate to his conduct and did not comply with statutory sentencing mandates. We disagree. {¶7} “[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence”: (1) “the re cord does not support the trial court's findings under relevant statutes[,]” or (2) “the sentence is otherwise contrary

to law.” State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is evidence “which will produce in the mind of the tri er of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph three of the syllabus. A sentence is not cle arly and convincingly contrary to law where the trial court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properl y imposes post-release control, and sentences the defendant within the permissible sta tutory range.” State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8; State v. Julious , 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8. Thus, this Court may “increase,Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 5

reduce, or otherwise modify a sentence only when it clearly and convincingly finds the sentence is (1) contrary to law or (2) unsupported by the recor d.” State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶ 7. {¶8} Pursuant to R.C. 2929.11(A), “[t]he overriding purposes of felo ny sentencing are to protect the public from future crime by the o ffender and others, to punish the offender, and to promote the effective rehabilitation of th e offender using the minimum sanctions that the court determines accomplish those purposes w ithout imposing an unnecessary burden on state or local government resources.” To achieve these purposes, the sentencing court shall consider the need for inca pacitating the offender, deterring the offender and others from future crime, rehabilita ting the offender, and making restitution to the victim of the offense, the public, or both. R.C. 2929.11(A). Further, the sentence imposed shall be “commensurate with and n ot demeaning to the seriousness of the offender's conduct and its impact on the vic tim, and consistent with sentences imposed for similar cr imes by similar offenders.” R.C . § 2929.11(B). {¶9} R.C. 2929.12 lists general factors which must be considered by the trial court in determining the sentence to be imposed for a felony, a nd gives detailed criteria

which do not control the court's discretion but which must be c onsidered for or against severity or leniency in a particular case. The trial court reta ins discretion to determine the most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12. {¶10} In each of the four entries of sentence, the trial court indica ted it had considered the record, all statements, any victim impact statem ent, the pleaMuskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 6

recommendation, as well as the principles and purposes of felon y sentencing under R.C. 2929.11, and the balance of seriousness and recidivism factors under R.C. 2929.12. {¶11} At the sentencing hearing, the trial court addressed Appellant as follows:

THE COURT: * * * I have received the presentence investigatio n, and I have reviewed it thoroughly. I’ve also received your let ter, and I read it a couple of times. I’ve also received letters from the vict ims. You put their entire security of their homes in an uproar. Wh en someone’s at their residence, they want to be safe and secure a nd have that as their sanctuary, and you would be doing work there and leave it in turmoil for months at a time, and then just lie to them about i t time and time again. I don’t think you – if your realized what you did, it’s even worse than

I think it is. Joint recommendation is for 24 months in prison. Again, with regard to the presentence investigation, in 2007 you went to prison fo r what, five years? THE DEFENDANT: Yes, Your Honor. THE COURT: And you were ordered to pay restitution in the amou nt of $34,382.82. None as paid on that, right? THE DEFENDANT: Correct, Your Honor. THE COURT: And that’s for theft by deception, theft by decepti on with an elderly victim, theft by deception passing bad checks, theft by deception, 10 different victims in that.Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 7

Also in 2008 in Muskingum County felony case, theft by decepti on, one year in prison, restitution ordered in that case of $12,090 and none paid. Another case, 2008 in Muskingum County, theft by deception, a felony of the fourth degree, one year in prison consecutive to the others, restitution ordered, $24,837, and none paid. Muskingum County, 2002, theft by deception, felony of the four th degree; theft by deception, felony of the third degree; passing bad checks, passing bad checks, tampering with evidence, two years in priso n. On this case, restitution is ordered, $123,676.54, none paid, right? THE DEFENDANT: Yes, Your Honor. THE COURT: And your misdemeanor record, 2019, this year, you were convicted of theft by deception at Wal-Mart on Maple Avenu e where you picked up a Dremel tool and took it back and tried to get m oney out of it as you’re returning the Dremel tool that you just picked up off the shelf, right? THE DEFENDANT: Yes, Your Honor. THE COURT: That’s what you did. December 2018, petty theft. Went in to Lowe’s, filled a cart with merchandise, took it to c ustomer service and returned the items using a receipt from July. You just did that, didn’t you? THE DEFENDANT: Yes, Your Honor. THE COURT: Ripley, West Virginia, 2017, petty larceny, sound right?Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 8

THE DEFENDANT: Yes, sir. THE COURT: 2004, passing bad checks, assault, domestic violenc e, criminal damaging. This is your letter you wrote me. I truly am sorry and regretful to all I have affected in this situation and assure i t will not happen again. THE DEFENDANT: Yes, Your Honor. THE COURT: But nothing in your life – you were just stealing f rom Lowe’s and Wal-Mart within the last few months. I do wish ther e was another alternative other than prison, you wrote that. I read the letters by the victims. Just time and time again y ou have lied. Time and time again our life is in an upheaval because y ou left stuff messed up, man. And how many years have you been in prison in your adult life? THE DEFENDANT: Eight, Your Honor. THE COURT: Didn’t change a thing, did it? I mean, did it? THE DEFENDANT: It didn’t, Your Honor. THE COURT: Came out, did the same thing, maybe worse. I’m not inclined to follow the joint recommendation in this case * * * Transcript of May 20, 2019 Sentencing Hearing at 9-12.

{¶12} Appellant points to several factors which weigh in favor of the trial court imposing the jointly recommended sentence of 24 months. First, Appellant notes he is 48 years old and, as he ages, his risk of recidivism decreases according to statistics.Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 9

Appellant continues the victims did not suffered physical harm as a result of the offenses (R.C. 2929.12(B)(2)); he did not hold a position of trust in th e community and his occupation did not obligate him to prevent the offenses (R.C. 2 929.12(B)(3) and (4)); his relationships with the victims did not facilitate the commissio n of the offenses (R.C. 2929.12(B)(6)); he did not commit the offenses for hire or as p art of organized criminal activity (R.C. 2929.12(B)(7)); and he was not motivated by prej udice(R.C. 2929.12(B)(8)) . Appellant adds he openly expressed his remorse and accepted responsibility for his behavior. Appellant maintains a lengthy prison term will preve nt him from becoming gainfully employed and make the payment of restitution more dif ficult. {¶13} Upon review of the record, we find Appellant’s sentence was not “grossly disproportionate” to his conduct and was in compliance with the statutory guidelines for felony sentencing. Appellant has an extensive criminal histor y, has not responded favorably to criminal sanctions, and has failed to pay any rest itution in the past. Despite multiple convictions and serving a total of 8 years in prison, Appellant continued to engage in the same pattern of criminal behavior. We do not find by cl ear and convincing evidence “that the record does not support the sentencing court's findin gs,” or “that the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)-(b). {¶14} Appellant’s first assignment of error is overruled.

II {¶15} In his second assignment of error, Appellant submits the trial court erred in ordering him to pay restitution without considering his present and future ability to pay. {¶16} Pursuant to R.C. 2929.18(A)(1), a trial court may order an offe nder to pay restitution to the victim of the crime in an amount based on th e victim's economic loss.Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 10

However, R.C. 2929.19(B)(5) requires the court to consider “the offender's present and future ability to pay the amount of the sanction or fine” prior to imposing a financial

sanction. {¶17} This Court has “previously observed while the better practice i s for a trial court to explain on the record it considered an offender's fina ncial circumstances, courts have consistently held a trial court need not explicitly state in its judgment it considered a defendant's ability to pay a financial sanction.” State v. Eblin , 5 th Dist. Muskingum App. No. CT2019-0037, 2020-Ohio-810, ¶28 (Citation omitted). “Rathe r, courts look to the totality of the record to see if this requirement has been sati sfied.” Id. (Citation omitted). “A court complies with Ohio law if the record shows the court c onsidered a pre-sentence investigation report providing all pertinent financial informat ion regarding an offender's ability to pay restitution.” Id. (Citation omitted). {¶18} At the change of plea hearing, the Prosecutor advised the trial court, as part of the joint recommendation, Appellant agreed to pay restitutio n in the amount of $5,000.00 in Case No. CR2019-0105, $4,160.00 in Case No. CR2019 -0144, and $9,265.00 in Case No. CR2019-0201. The trial court conducted a Crim. 11 colloquy with Appellant and specifically asked him if, as part of the joint r ecommendation, he agreed to pay the aforementioned amounts in the respective cases. Appell ant answered affirmatively. {¶19} “If there is a plea agreement, the trial court may satisfy its burden to consider a defendant's ability to pay by asking the defendant if he unde rstands that the restitution amount is part of the sentence.” State v. Demeter , 8th Dist. Cuyahoga No. 107252, 2018- Ohio-5361, ¶ 8, (Citations omitted). In this case, Appellant af firmed during the pleaMuskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 11

colloquy he understood restitution to the victims was part of t he joint recommendation. Accordingly, we find the trial court satisfied its burden to co nsider Appellant’s ability to pay restitution pursuan t to R.C. 2929.19(B)(5). {¶20} In addition to its position the trial court properly considered Appellant’s ability to pay restitution, the St ate submits, pursuant to Arti cle I, Section 10a of the Ohio Constitution, known as Marsy’s Law, the victims are “entitled to full and timely restitution, regardless of the offender’s ability to pay, or whether the tri al court considered their ability to pay.” Brief of Appellee at 8. {¶21} In State v. Queen , 3 rd Dist. Logan App. No. 8-19-41, 2020-Ohio-618, the Third District Court of Appeals recognized the potential ambigu ity between Marsy’s Law, and R.C. 2929.18(A)(1) and R.C. 2929.19(B)(5):

“[O]n February 5, 2018, the amendment to Article I, Section 10 a of the Ohio Constitution, known as Marsy's Law, became effective.” State v.

Jones , 1st Dist. Hamilton No. C-190039, 2020-Ohio-81, ¶ 9. Under thi s provision, victims have a series of rights that are “to be prot ected in a manner no less vigorous than the rights afforded to the accused .” Article I, Section 10a of the Ohio Constitution. One of these rights is “t o full and timely restitution from the person who committed the criminal offense or delinquent act against the victim * * *.” Id. at (A)(7). The language in R.C. 2929.18(A)(1) gives trial courts the option to impose restitution against a c riminal defendant as a financial sanction. It is not clear how the lang uage of Marsy's Law, which appears to give a victim the right to restitution, i nteracts withMuskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 12

R.C. 2929.18(A)(1) or R.C. 2929.19(B)(5). In particular, it is not clear how the defendant's statutory right to have his ability to pay cons idered under R.C. 2929.19(B)(5) interacts with the victim's constitutional r ight to restitution under Article I, Section 10a(A)(7). Id. at footnote 1.

The Queen Court determined, “In this case, however, the defendant's statutory right and the victim's constitutional rig ht are not in conflict because we have determined that the defendant has the ability to pay and that the trial court did not err in awarding the victim restitution. Thus, our ‘ability to pay’ analysis from R.C. 2929.19(B)(5) does not interfere with any right to restitution that the victims have. In the absence of such a conflict, we do not need to further consider the effect that Ma rsy's Law has on the operation of R.C. 2929.18(A)(1) or R.C. 2929.19(B)(5).” Id.

{¶22} Like the Queen Court, we find Appellant’s statutory right and the victims’ constitutional rights are not in conflict in this case as the t rial court considered Appellant’s ability to pay by asking Appellant if he understood and agreed to pay restitution as part of the joint recommendation. {¶23} Based upon the foregoing, Appellant’s second assignment of erro r is

overruled.

III {¶24} In his final assignment of error, Appellant raises a claim of i neffective assistance of counsel. Specifically, A ppellant maintains trial counsel was ineffective forMuskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 13

failing to object to the trial court’s order of restitution and failing to request the trial court waive the imposition of court costs. {¶25} Our standard of review for ineffective assistance claims is set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio adopted this standard in the case of State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel 's assistance was ineffective; i.e., whether counsel's performance fell below an objective standard of reasonable representation and was violative of any of his or he r essential duties to the client. If we find ineffective assistance of counsel, we must t hen determine whether or not the defense was actually prejudiced by counsel's ineffectivenes s such that the reliability of the outcome of the trial is suspect. This requires a showing there is a reasonable probability that but for counsel's unprofessional error, the ou tcome of the trial would have

been different. Id. {¶26} Trial counsel is entitled to a strong presumption all decisions fall within the wide range of reasonable professional assistance. State v. Sallie , 81 Ohio St.3d 673, 675, 693 N.E.2d 267 (1998). In addition, the United States Supreme C ourt and the Ohio Supreme Court have held a reviewing court “need not determine w hether counsel's performance was deficient before examining the prejudice suffer ed by the defendant as a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697, 104 S.Ct. 2052. Even debatable trial tactics and strate gies do not constitute ineffective assistance of counsel. State v. Clayton , 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).Muskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 14

{¶27} Assuming, arguendo, Appellant’s trial counsel was ineffective f or failing to object to the trial court’s order of restitution, we find Appe llant cannot established he was prejudiced as the result of counsel’s ineffectiveness. As disc ussed in Assignment of Error II, supra, Appellant agreed to pay restitution as part of the j oint recommendation, and the trial court considered Appellant’s ability to pay by confirming he understood and agreed to pay restitution as part of the joint recommendation. {¶28} We now turn to Appellant’s assertion trial counsel was ineffect ive for failing to object to the trial court’ s imposition of court costs. {¶29} R.C. 2947.23, which governs judgment for costs, provides, in pe rtinent part: “In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution * * * and rend er a judgment against the defendant for such costs.” R.C. 2947.23(A)(1)(a). However, subs ection (C) permits the trial court to retain jurisdiction “to waive, suspend, or modif y the payment of the costs of prosecution * * * at the time of sentencing or at any time ther eafter.” Therefore, a trial court has discretion to waive the payment of court costs whethe r a defendant is indigent

or not. {¶30} Appellant has failed to present any additional facts or circums tances from those he did with respect to his argument relative to the resti tution orders to support a finding there was a reasonable probability the trial court woul d have sustained an objection to the imposition of court costs. {¶31} As this Court noted in State v. Eblin, 5th Dist. Muskingum No. CT2019- 0036, 2020-Ohio-1216, “[w]e considered, as part of this analysi s, whether the trial court's denial of such a motion would have been an abuse of discretion and find nothing withinMuskingum County, Case Nos. CT2019-0046, CT2019-0047, CT2019-00 48, & CT2019-0049 15

the facts and circumstances of this case that would lead us to find that a failure to grant

the motion would constitute an abuse.” Id . at ¶ 21. Accord , State v. Stevens, 5th Dist. Muskingum Nos. CT2019-0059 & CT2019-0060, 2020-Ohio-1300. {¶32} Because Appellant cannot establish there was a reasonable proba bility the outcome would have been different had trial counsel objected, w e find Appellant was not prejudiced by counsel’s failure to do so. {¶33} Appellant’s third assignment of error is overruled. {¶34} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Hoffman, P.J. Wise, John, J. and Baldwin, J. concur