[Cite as State v. McNeil, 2019-Ohio-1200.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, : 

 Appellee, : CASE NO. CA2018-09-115 

 : O P I N I O N 

 - vs - 4/1/2019 

 : 

RONNIE McNEIL, : 

 Appellant. : 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 18CR34197 

David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice 

Drive, Lebanon, Ohio 45036, for appellee 

Bryan S. Hicks, P.O. Box 359, Lebanon, Ohio 45036, for appellant 

 HENDRICKSON, P.J.

{¶ 1} Appellant, Ronnie McNeil, appeals the sentence imposed by the Warren 

County Court of Common Pleas after he pled guilty to theft and criminal damaging. For the 

reasons stated below, we affirm his sentence. 

{¶ 2} In May 2018, appellant was indicted on six counts of theft, in violation of R.C. 

2913.02(A)(1), and four counts of criminal damaging, in violation of R.C. 2909.06(A)(1). 

Three of the theft offenses constituted fifth-degree felonies pursuant to R.C. 2913.71, while 
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the remaining three theft offenses constituted first-degree misdemeanors. All the criminal 

damaging offenses constituted second-degree misdemeanors. These charges resulted from 

appellant breaking into multiple parked cars in Mason, Ohio and stealing credit cards, money, 

and other miscellaneous items. 

{¶ 3} On June 5, 2018, appellant pled guilty to four of the offenses: three felony theft 

counts and one count of criminal damaging. In exchange for the plea, the remaining six 

charges were dismissed. The trial court found appellant guilty and ordered a presentenceinvestigative report and a community-based correctional facility evaluation. 

{¶ 4} On August 7, 2018, the trial court sentenced appellant to three years of 

community control. As part of the community control sanction, the trial court ordered 

placement in a community-based correctional facility, a period of house arrest, and payment 

of $2,266 in restitution to the victims. The trial court did not impose any other financial 

sanctions and waived court costs. Moreover, the trial court notified appellant that there was a 

potential incarceration of twelve months in prison for the first theft count, six months in prison 

for each of the remaining two theft counts, and 90 days in jail for the criminal damaging count 

should he violate the terms and conditions of community control. At the hearing, the trial 

court made findings that each of the potential prison terms would be served consecutively to 

one another, for an aggregate prison term of 24 months. 

{¶ 5} Appellant appeals his sentence, raising two assignments of error. 

{¶ 6} Assignment of Error No. 1: 

{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION IN ITS RESTITUTION 

ORDER. 

{¶ 8} In his first assignment of error, appellant argues the trial court abused its 

discretion when it ordered him to pay restitution, because the court failed to consider his 

present and future ability to pay the financial sanction. 
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{¶ 9} We review an order of restitution, as part of a felony sentence, under the 

standard set forth in R.C. 2953.08(G)(2). State v. Blevings, 12th Dist. Warren No. CA2017-

12-175, 2018-Ohio-4382, ¶ 16. Pursuant to R.C. 2953.08(G)(2), an appellate court may 

modify or vacate a sentence only if there is clear and convincing evidence the record does 

not support the trial court's findings under relevant statutes or the sentence is contrary to law. 

State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1. Ultimately, an appellate court 

does not review under an abuse of discretion standard. R.C. 2953.08(G)(2); Marcum at ¶ 10. 

{¶ 10} Pursuant to R.C. 2929.18, a trial court may impose restitution as part of a felony 

sentence. To impose restitution, R.C. 2929.19(B)(5) requires a trial court "consider" the 

offender's present and future ability to pay. However, a trial court is not required to make 

express findings as to ability to pay or include in the judgment entry express language that it 

considered ability to pay. State v. Geldrich, 12th Dist. Warren No. CA2015-11-103, 2016-

Ohio-3400, ¶ 12. The "consideration" requirement will be met if there is some evidence in 

the record to indicate the trial court considered ability to pay. Id. A presentence-investigative 

report in the record, which contains an offender's personal and financial information, is 

sufficient evidence to indicate consideration. State v. Dehner, 12th Dist. Clermont No. 

CA2012-12-090, 2013-Ohio-3576, ¶ 47. 

{¶ 11} Since appellant did not object to the order of restitution, he has waived all but 

plain error review on appeal. Blevings at ¶ 17. To constitute plain error, the error must be 

obvious. State v. Yanez, 12th Dist. Butler No. CA2016-10-190, 2017-Ohio-7209, ¶ 23. Plain 

error is justiciable when the outcome would have been different, but for the error. State v. 

Liming, 12th Dist. Clermont Nos. CA2018-05-028 and CA2018-05-029, 2019-Ohio-82, ¶ 35. 

Review of plain error is made with utmost caution and only to prevent a manifest miscarriage 

of justice. Id. Nevertheless, it is plain error for a trial court to impose restitution on an 

offender without considering the offender's present and future ability to pay. State v. Chaffin, 
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12th Dist. Madison No. CA2016-08-026, 2017-Ohio-4041, ¶ 11. 

{¶ 12} After review of the record, we find no error in the trial court's order of restitution 

as part of appellant's sentence, because the record demonstrates consideration of 

appellant's ability to pay. Foremost, the trial court ordered a presentence-investigative report 

that included appellant's personal and financial information. This alone is adequate to show 

the trial court complied with the statutory consideration requirement. Dehner at ¶ 47. 

{¶ 13} In addition to the presentence report, at the sentencing hearing, the trial court 

explicitly demonstrated consideration of appellant's present and future ability to pay when it 

stated: 

I am going to make a finding that [appellant is] indigent. I know 

that [appellant is] on Social Security at this time, and I'm not 

going to level any additional financial sanctions against 

[appellant], including the costs of prosecution. *** I want 

[appellant] to pay restitution, but I *** [t]here's no sense in piling 

on him right now. 

{¶ 14} By waiving court costs and other financial sanctions, the trial court indicated it 

considered appellant possessed means, although limited, to pay restitution. Consequently, 

the trial court did not err by ordering appellant to pay restitution. Therefore, appellant's first 

assignment of error is overruled. 

{¶ 15} Assignment of Error No. 2: 

{¶ 16} THE TRIAL COURT IMPROPERLY MADE FINDINGS FOR CONSECUTIVE 

PRISON SENTENCES. 

{¶ 17} In his second assignment of error, appellant argues the trial court erred by 

making statutory findings to impose consecutive prison terms, despite sentencing appellant 

to community control. We find that the error was harmless, as any argument regarding the 

imposition of consecutive sentences is not ripe for review. 
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{¶ 18} To be justiciable, a claim or issue must be a real controversy for which a judicial 

resolution will have a "direct and immediate" impact. State v. McCarty, 12th Dist. Butler No. 

CA2006-04-093, 2007-Ohio-2290, ¶ 15. If the claim rests on future events that may not 

occur, then it will not be ripe for adjudication. Texas v. United States, 523 U.S. 296, 300, 118 

S. Ct. 1257 (1998). 

{¶ 19} When an offender is sentenced to community control, a trial court may impose 

a prison term on an offender as punishment for violating the community control sanction. 

R.C. 2929.15(B). However, the court must notify the offender of the potential prison term at 

the original offense's sentencing hearing or a prior community control violation sentencing 

hearing. R.C. 2929.19(B)(4); R.C. 2929.15(B)(3); State v. Fraley, 105 Ohio St. 3d 13, 2004-

Ohio-7110, ¶ 18. This notification serves as a "ceiling" for the potential prison term the trial 

court could impose on any future community control violations. State v. Brooks, 103 Ohio St. 

3d 134, 2004-Ohio-4746, ¶ 23. 

{¶ 20} To impose consecutive sentences, R.C. 2929.14(C)(4) requires a trial court to 

make specific findings at the sentencing hearing and incorporate those findings in the 

sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 37. 

Nevertheless, when an offender is placed on community control, it is only necessary for the 

trial court to make R.C. 2929.14(C)(4) findings when it actually imposes consecutive prison 

sentences at a community control violation hearing. State v. Duncan, 12th Dist. Butler Nos. 

CA2015-05-086 and CA2015-06-108, 2016-Ohio-5559, ¶ 41-47. 

{¶ 21} Although the trial court was not required to make the consecutive sentence 

findings at this stage, the error was harmless because these findings have no effect. 

Appellant cannot show the trial court's error has a direct and immediate impact on him, 
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because he has not violated his community control. Accordingly, appellant's second 

assignment of error is overruled. 

{¶ 22} Judgment affirmed. 

 RINGLAND and PIPER, JJ., concur.