[Cite as State v. Jordan, 2021-Ohio-333.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

LUCAS COUNTY 

State of Ohio Court of Appeals No. L-19-1165 

 

 Appellee Trial Court No. CR0201703129 

v. 

 Jerome Jordan DECISION AND JUDGMENT

Appellant Decided: February 5, 2021 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Alyssa Breyman, Assistant Prosecuting Attorney, for appellee. 

 Laurel A. Kendall, for appellant. 

* * * * * 

MAYLE, J. 

{¶ 1} Appellant, Jerome Jordan, appeals the August 10, 2018 judgment of the 

Lucas County Court of Common Pleas. As part of his sentence following his conviction 

on six counts of robbery, Jordan was ordered to pay restitution to his victims and to pay 

all associated costs. For the reasons that follow, we affirm, in part, and reverse, in part, 

the trial court’s judgment. 
2.

I. Background 

{¶ 2} On December 11, 2017, Jordan was indicted on 11 counts of aggravated 

robbery in violation of R.C. 2911.01(A)(1) and (C), each a fifth-degree felony. Jordan 

appeared for his arraignment on December 20, 2017. He was appointed counsel and 

entered a not guilty plea to all counts. 

{¶ 3} On July 11, 2018, Jordan appeared for a change of plea hearing. Through an 

agreement with the state, Jordan entered a guilty plea pursuant North Carolina v. Alford, 

400 U.S. 25, 91 S.Ct. 160 (1970), to six counts of robbery in violation of R.C. 

2911.02(A)(2) and (B). Jordan also agreed to “pay restitution in an amount to be 

determined through the pre-sentence investigation.” In exchange, the state agreed to 

request dismissal of the remaining five counts, and the state also agreed that it would not 

make a sentencing recommendation. The trial court accepted Jordan’s plea and ordered 

him to participate in a presentencing investigation. 

{¶ 4} On August 8, 2018, the trial court sentenced Jordan to a three-year prison 

term on each of the first four counts of robbery and to a two-year prison term on the two 

remaining counts. The trial court ordered him to serve all prison terms consecutively for 

an aggregate prison term of 16 years. The trial court also ordered Jordan to pay a total of 

$4,961.05 in restitution to the victims, and to pay “the cost of prosecution.” The trial 

court dismissed the remaining counts at the state’s request and its judgment entry was 

journalized the following day. Jordan failed to file an appeal within thirty days of the 

judgment as required by App.R. 4(A)(1). 
3.

{¶ 5} On August 5, 2019, Jordan filed a motion for delayed appeal pursuant to 

App.R. 5(A) alleging that his trial counsel failed to timely file an appeal as he requested. 

Jordan also filed an affidavit of indigency and requested appointment of counsel. The 

state opposed Jordan’s motion on August 13, 2019. We granted Jordan’s motion on 

November 19, 2019, appointed him counsel, and directed him to file an amended notice 

of appeal, praecipe, and docketing statement to conform with App.R. 3. Jordan filed his 

amended notice of appeal, docketing statement, and praecipe on November 19, 2019. He 

asserts the following errors for our review: 

1. The trial court abused its discretion when it ordered restitution at 

sentencing without considering appellant’s ability to pay, pursuant to R.C. 

2929.19(B)(5). 

2. The trial court abused its discretion when it found appellant had, 

or reasonably was expected to have, the ability to pay all or part of the 

applicable costs of supervision, confinement, assigned counsel, and 

prosecution in the judgment entry, but failed to impose such costs at 

sentencing, without finding that appellant had the ability to pay. 

II. Law and Analysis 

A. Appellant waived review of the trial court’s order to pay restitution 

{¶ 6} In his first assignment of error, Jordan argues that the trial court abused its 

discretion when it failed to consider his ability to pay before it ordered him to pay a total 

of $4,961.05 in restitution to the robbery victims. 
4.

{¶ 7} We begin by clarifying that “the proper standard of review for analyzing the 

imposition of restitution as part of a felony sentence is whether the sentence complies 

with R.C. 2953.08(G)(2)(b).” State v. Young, 6th Dist. Lucas No. L-19-1189, 2020-

Ohio-4943, ¶ 11, citing State v. Collins, 2015-Ohio-3710, 41 N.E.3d 899, ¶ 31 (12th 

Dist.). “This means that ‘in reviewing the order for restitution, we must determine 

whether the restitution imposed was contrary to law rather than reviewing for an abuse of 

discretion.’” Id., citing State v. Cantrill, 6th Dist. Lucas No. L-18-1047, 2020-Ohio1235, ¶ 87. We, therefore, review Jordan’s first assignment of error under this standard 

rather than under the abuse of discretion standard identified in his assignment of error. 

{¶ 8} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a 

sentence in order to compensate a victim for economic loss. State v. Lalain, 136 Ohio 

St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 20. Before ordering restitution, the trial 

court must first determine whether the offender has a present or future ability to pay the 

amount determined as appropriate. State v. Bey, 2019-Ohio-423, 130 N.E.3d 1031, ¶ 43 

(6th Dist.). There is, however, an exception to this requirement when the defendant 

agrees to pay restitution as “part and parcel of a plea agreement.” State v. Coburn, 6th 

Dist. Sandusky No. S-09-006, 2010-Ohio-692, ¶ 22. In that instance, “there is no 

reversible error in imposing [restitution], without first determining the defendant’s ability 

to pay.” Id. Moreover, a defendant that agrees to pay restitution as part of their plea 

agreement “waives the issue of whether he or she will be able in the future to pay the 

amount agreed upon.” Id. 
5.

{¶ 9} Here, Jordan argues that the trial court’s failure to consider his ability to pay 

restitution was nonetheless reversible error because, although he may have agreed to pay 

restitution in the plea agreement, the amount of restitution was not specified at the time of 

his plea. That is, Jordan agreed to pay “restitution in an amount to be determined through 

the pre-sentence investigation” as part of his plea agreement. 

{¶ 10} But, Jordan is not challenging the amount of restitution that the trial court 

imposed. Rather, he is challenging the trial court’s imposition of any restitution without 

first considering his ability to pay that restitution. In Coburn, we stated “[u]nlike the 

amount of restitution, which we previously determined was improperly imposed, the 

overall agreement to pay some sort of restitution at all was included in and considered by 

appellant before entering his plea. * * * Therefore, we conclude the trial court did not err 

in accepting appellant’s plea agreement to pay restitution to the victim without 

determining his ability to pay.” Coburn at ¶ 23 (emphasis sic), see also State v. Kurth, 

6th Dist. Lucas Nos. L-15-1238, L-15-1239, 2016-Ohio-7698, ¶ 10-12 (holding that the 

trial court’s failure to consider a defendant’s ability to pay an amount of restitution 

unknown at the time of their plea but ascertained and imposed at the sentencing hearing 

without objection was not error). Accordingly, a defendant that agrees to pay restitution 

in a plea agreement cannot challenge, on appeal, the trial court’s failure to consider his or 

her ability to pay before imposing restitution—even if the actual amount of restitution 

was not specified in the plea agreement. 
6.

{¶ 11} Given that Jordan agreed to pay restitution in his plea agreement, he has 

waived his ability to challenge the trial court’s failure to consider his ability to pay 

restitution. We therefore find his first assignment of error not well-taken. 

B. The trial court improperly imposed the costs 

of confinement and assigned counsel fees. 

{¶ 12} In his second assignment of error, Jordan argues that the trial court abused 

its discretion by imposing the costs of confinement, attorney fees, and costs of 

prosecution in its judgment entry without making such findings at sentencing or 

considering his current or future ability to pay such costs. 

{¶ 13} As an initial matter, appellant cites the incorrect standard of review. We 

review the imposition of court costs under R.C 2953.08(G)(2), not for abuse of 

discretion. See State v. Gessel, 6th Dist. Williams No. WM-19-004, 2020-Ohio-403, ¶ 5. 

{¶ 14} At the sentencing hearing, the trial court ordered Jordan to pay “the costs of 

prosecution” but did not reference the costs of confinement, attorney fees, or costs of 

prosecution. In its sentencing entry, however, the trial court stated that it found Jordan 

“to have, or reasonably may be expected to have, the means to pay all or part of the 

applicable costs of supervision,1

 confinement, assigned counsel, and prosecution as 

 

1

 Although the trial court included costs of “supervision” in its judgment entry, such costs 

are not at issue in this case because Jordan was sentenced to prison, not community 

control. See State v. Eaton, 6th Dist. Lucas No. L-18-1183, 2020-Ohio-3208, ¶ 33; R.C. 

2929.18(A)(5)(a)(i) (permitting a trial court to order reimbursement of costs incurred by 

the government for “all or part of the costs of implementing any community control 

sanction, including a supervision fee.”) 
7.

authorized by law.” As a result, Jordan was “ordered to reimburse the State of Ohio and 

Lucas County for such costs[.]” 

{¶ 15} We must first consider whether the costs imposed are mandatory or 

discretionary. Id. at ¶ 24. With regard to the costs of prosecution, R.C. 2947.23(A)(1)(a) 

provides that the trial court shall render against a convicted defendant a judgment for the 

costs of prosecution without consideration of whether the defendant has the ability to pay 

such costs. State v. Rhoda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 13. Given 

that the trial court was required to impose the costs of prosecution—without any regard to 

Jordan’s ability to pay—the trial court’s imposition of these costs was not error. 

{¶ 16} The costs of confinement and assigned counsel, however, are not

mandatory and “are premised on a finding of a defendant’s present or future ability to 

pay.” State v. Seals, 6th Dist. Lucas No. L-17-1177, 2018-Ohio-2028, ¶ 14, citing State 

v. Johnson, 6th Dist. Lucas No. L-16-1165, 2017-Ohio-8206, ¶ 24. To impose these 

costs, the trial court must affirmatively find that the defendant has, or reasonably may be 

expected to have, the ability to pay. State v. Grey, 6th Dist. Lucas No. L-15-1072, 2015-

Ohio-5021, ¶ 21. Such a finding need not be made at a formal hearing, but the record 

must contain some evidence that the court considered the defendant's ability to pay.” 

Seals at ¶ 14, citing State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919, 

¶ 13. When the record on appeal contains no evidence reflecting the trial court’s 

consideration of present or future ability to pay these costs—such as consideration of 
8.

defendant’s age, health, employment history, or level of education—the imposition of 

these costs is improper and must be vacated. State v. Stovall, 6th Dist. Lucas No. 

L-18-1048, 2019-Ohio-4287, ¶ 37. 

{¶ 17} Here, the trial court did not make any finding regarding Jordan’s ability to 

pay the costs of confinement and assigned counsel at his sentencing hearing. Further, the 

trial court failed to address any evidence of Jordan’s ability to pay these costs during the 

underlying proceedings. Therefore, Jordan’s second assignment of error is found welltaken, in part, and we vacate the award of costs of confinement and assigned counsel. 

III. Conclusion 

{¶ 18} We find Jordan’s first assignment of error not well-taken. We find 

Jordan’s second assignment of error not well-taken as to the trial court’s imposition of the 

mandatory costs of prosecution. We find Jordan’s second assignment of error well-taken 

as to the non-mandatory costs of confinement and appointed counsel. We therefore 

vacate the trial court’s award of these non-mandatory costs. The mandatory costs of 

prosecution are not vacated by this decision. We affirm the remainder of the August 10, 

2018 judgment of the Lucas County Court of Common Pleas. Jordan and the state are 

ordered to share the costs of this appeal pursuant to App.R.24.

Judgment affirmed, in part, 

and reversed, in part. 

 
9.

 State v. Jordan 

 C.A. No. L-19-1165 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Christine E. Mayle, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.