[Cite as State v. Dwyer , 2022-Ohio-490.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO Plaintiff-Appellee

v. JAMES A. DWYER Defendant-Appellant : : : : : : : : : : Appellate Case No. 2021-CA-16

Trial Court Case No. 2020-CR-831 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 18th day of February, 2022.

. . . . . . . . . . . MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecut ing Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road, Fairborn, Ohio 45324 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

TUCKER, P.J.-2-

Defendant-appellant James A. Dwyer appeals from his conviction for attempted murder, aggravated robbery, and felonious assault. D wyer contends the State failed to present evidence sufficient to support the conv iction for attempted murder. He also claims all three convictions were against the manifest weight of the evidence. Finally, Dwyer contends the trial court erred in sentencing. F or the reasons set forth below, the judgment of the trial court is affirmed in part, rev ersed in part, and remanded for further proceedings consistent with this opinion.

I. Facts and Procedural History On December 23, 2020, Dwyer was indicted on one count of attemp ted felony murder in violation of R.C. 2923.02(A) and R.C. 2903.02( B); one count of attempted murder in violation of R.C. 2923.02(A) and R.C. 2903. 02(A); one count of aggravated robbery (deadly weapon) in violation of R.C. 2911.01 (A)(1); one count of felonious assault (deadly weapon) in violation of R.C. 2903.11( A)(2); and one count of having a weapon while under disability in violation of R.C. 292 3.13(A)(2). All of the counts except for having a weapon under disability included a t hree-year firearm specification. Prior to trial, the trial court dismissed the counts of attempt ed felony murder and having a weapon while under disability. The matter proceed ed to a jury trial on the remaining counts, where the following evidence was adduced. Both Dwyer and Tyree Day were romantically involved with a woma n named Shayla Webb. On December 16, 2020, Day was with Webb at her Fa irborn apartment.-3- At some point, Dwyer came to the apartment, and his presence re sulted in a physical altercation between Dwyer and Day. After the fight stopped, Dw yer left. Day remained at Webb’s apartment overnight. At approximately 6 :30 a.m. on December 17, Day exited the bathroom and encountered Dwyer, who had returned to the apartment. 1 Dwyer brandished a handgun and ordered Day to accompany him toward the apartment door. As Dwyer opened the door, Day shove d him and ran out of the apartment building. Day ran across the street toward an ap artment building located several buildings away from Webb’s residence. As he got to the back of that building, he lost his shoe, tripped, and fell to the ground. At this poi nt, Dwyer caught up to Day. While Day remained on the ground, Dwyer pointed the gun at Day’ s head and pulled the trigger two times. Day testified that the gun “ clicked” but did not fire. Tr. p. 38. Dwyer then ordered Day to give him Day’s shoes, belt an d jacket. After the items were handed over, Dwyer shot Day in the leg and ran away. Fairborn Police Officer Joseph Walton was dispatched to Webb’s apartment building following multiple calls regarding a disturbance and a man with a weapon. During his conversation with Webb, Walton issued a description of the perpetrator. Fairborn Police Officer Matthew Bracey was en route to the scen e when he heard Walton’s description of the perpetrator. When Bracey arr ived at an intersection several buildings away from Webb’s apartment, he pulled his car over to the side of the road and stopped in order to begin searching for the suspect. A man, later identified as Day, appeared and knocked on the passenger-side window of Brace y’s cruiser. When

1 During his police interview, Dwyer stated he returned to the ap artment at Webb’s request.-4- Bracey rolled down the window, Day informed him of the shooting . As Day was talking, he pointed and stated, “that’s the guy who shot me.” Tr. p. 85 . Bracey then observed a man, later identified as Dwyer, at the apartment building loc ated behind the apartment building where Day had been shot. Bracey observed that Dwyer s tarted walking toward Webb’s apartment. Bracey exited his cruiser and ordered Dwyer to stop. However, Dwyer merely looked at Bracey and continued to walk away from h im. Dwyer approached Walton, who was still in the process of interviewing Webb. As Dwyer neared, Webb pointed behind Walton and identified Dwyer as the shooter. Dwyer was

then detained without incident. No weapon was found on Dwyer when he was detained, and a search of the area did not produce a gun. However, the items of clothing tak en from Day were located at the spot where Bracey had originally observed Dwyer. Day wa s transported to a local hospital for treatment of the gunshot wound to his leg. Dwyer was transported to the police department, where he was in terviewed by Sergeant James Hern and Detective Sean Pettit. Dwyer stated that he had been at Webb’s apartment at her request. Dwyer further stated that he took Webb and a female friend of Webb’s to a nearby gas station; when they returned to Webb’s apartment, Dwyer and Day argued. Dwyer indicated that Day had had a gun and tha t Day had chased Dwyer from the apartment. Dwyer also indicated he had been kno cking on the door of an apartment located in the building where Bracey had originall y spotted him. However, he admitted that he did not know the tenant of that apartment. When asked about Day’s clothes that had been found near him, Dwyer stated that he had been walki ng th rough the complex grounds when he observed the items on the ground an d decided to take-5- them. Dwyer indicated that Day must have taken the items off w hile he was running away. When confronted with a video of a portion of the interac tion inside Webb’s apartment, Dwyer became upset and ended the interview. 2 The video showed Day standing inside the apartment with his hands in the air in a “s ubmissive posture.” Tr. p.

177. The jury convicted Dwyer on the three counts presented by the S tate and the three firearm specifications. The trial court imposed an i ndefinite minimum prison term of 10 years with a maximum prison term of 15 years for the attempted murder conviction; a minimum and maximum prison term of eight years fo r the aggravated robbery conviction, and a minimum and maximum prison term of si x years for the

felonious assault conviction. All three terms were ordered to run consecutively, for a minimum prison term of 24 years and a maximum prison term of 29 years. The trial court also imposed three-year prison sentences for each of the firear m specifications to be run consecutively and prior to the sentence of 24 to 29 years, for an aggregate prison term of 33 to 38 years. Dwyer appeals.

II. Sufficiency of the Evidence Dwyer’s first assignment of error states as follows:

APPELLANT’S CONVICTION FOR ATTEMPTED MURDER IS BASED

UPON INSUFFICIENT EVIDENCE

2 The video was obtained from Webb’s friend, who had recorded par t of the incident with her cell phone.-6- Dwyer asserts that the State did not present sufficient evidenc e to sustain his conviction for attempted murder. Dwyer argues that, apart from Day’s testimony, there was no direct or circumstantial evidence proving that he had a gun or that he tried to fire it while aiming at Day’s head. Dwyer further argues th at the State did not present evidence demonstrating his purpose regarding the alleged action s. An appellate court's function in reviewing the sufficiency of t he evidence to support a criminal conviction is to examine the evidence admitt ed at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “In essence, sufficienc y is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.” State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry is whether, after viewing the evidence in a light most favorable t o the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt. Jenks at 273. Dwyer was convicted of attempted murder in violation of R.C. 29 03.02(A) and R.C. 2923.02(A). Murder is proscribed by R.C. 2903.02(A) w hich provides that “[n]o person shall purposely cause the death of another[.]” R.C. 292 3.02(A) defines “attempt” as “purposely or knowingly, and when purpose or knowledge is su fficient culpability for the commission of an offense, * * * engag[ing] in conduct that, if successful, would constitute or result in the offense.” Relevant here, a person acts with “purpose” when he or she has the “specific intention to cause a certain result, o r * * * to engage in conduct of [a certain] nature.” R.C. 2901.22(A).-7- As set forth above, Day testified that he fled Webb’s apartment and ran behind a nearby apartment building; he then tripped, lost his s hoe, and fell to the ground. When Dwyer caught up to Day, he stood over Day, pointed the gun at Day’s head and pulled the trigger a couple of times. Ultimately, after robbin g Day, Dwyer used the gun to shoot Day in the leg. Dwyer first asserts that the State failed to present legally su fficient evidence because it did not produce the firearm alleged to have been use d during the commission of the offenses. We disagree. This court has previously noted that the existence of a firearm “may be inferred from the surrounding facts and circums tances.” (Citations omitted.) State v. Vann , 2d Dist. Montgomery No. 22818, 2009-Ohio-5308, ¶ 27. Day testified that Dwyer pointed a gun at him. The jury was f ree to believe all, part, or none of Day’s testimony, and it apparently chose to believe this portion of his testimony. The fact that Day actually suffered a gunshot wound to his leg obviously bolsters his testimony. Additionally, the record demonstrates that Dwyer had time and the opportunity to conceal a gun prior to the arrival of the po lice. The mere fact that the police were unable to find a gun during their search of the are a did not preclude the conclusion that Dwyer had a gun. Dwyer next asserts that the State failed to prove he acted purp osefully. Again, we disagree. “[A] defendant's intent may be inferred fr om all the surrounding facts

and circumstances of the crime.” State v. McRae , 1st Dist. Hamilton No. C-180669, 2020-Ohio-773, ¶ 11, citing State v. Were , 1st Dist. Hamilton No. C-030485, 2005-Ohio376, ¶ 180, quoting State v. Herring , 94 Ohio St.3d 246, 266, 762 N.E.2d 940 (2002). “Particularly relevant here, ‘in an attempted-murder prosecutio n, a defendant's specific-8- intent to kill another can be inferred from the defendant's sho oting in the victim's direction’ and is strongly corroborative of criminal purpose.” Id. , quoting State v. MacDonald , 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 17-18 (Other cit ations omitted.). “This flows from the fact that a gun is considered a ‘deadly weapon,’ and therefore its discharge in another's direction supports an inference that the shooter h arbored the specific intent

to kill.” McRae at ¶ 11. Day testified that Dwyer pointed the gun at his head and pulled the trigger two times. The jury was free to credit this testim ony in determining whether Dwyer committed the offense of attempted murder. Construing the evidence most strongly in favor of the prosecuti on, a rational trier of fact could have found beyond a reasonable doubt that D wyer purposely attempted to cause Day’s death. Therefore, the first assignment of error is overruled.

III. Manifest Weight of the Evidence

APPELLANT’S CONVICTIONS FO R ATTEMPTED MURDER, AGGRAVATED ROBBERY, AND FELONIOUS ASSAULT ARE AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE Dwyer’s argument in support of this assignment of error centers upon his assertion that Day’s testimony was not credible. A weight-of-the-evidence argum ent challenges the believability of the evidence and asks which of the competing inferences suggested b y the evidence is more believable or persuasive. State v. Jones , 2d Dist. Montgomery No. 28179, 2019-Ohio2940, ¶ 13, quoting State v. Wilson , 2d Dist. Montgomery No. 2258, 2009-Ohio-525, ¶ 12. When evaluating whether a convi ction is against the manifest we ight of the evidence, an-9- appellate court must review the entire record, weigh the eviden ce and all reasonable inferences, consider witness credibility, and determine whether , in resolving conflicts in the evidence, the trier of fact “clearly lost its way and creat ed such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). But we general ly defer to a jury’s credibility assessments based upon the jury’s ability to observ e and assess the witnesses' demeanor while testifying. State v. Hagen , 2d Dist. Champaign No. 2018-CA-2, 2018- Ohio-4045, ¶ 21. In addition to attempted murder, Dwyer was convicted of felonio us assault in violation of R.C. 2903.11(A)(2 ), which states, “[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon.” He was also convicted of aggravated robbery as proscribed by R.C. 2911.01. This statute provides that the offense is committed when a person “in attemp ting or committing a theft offense, * * * or in fleeing immediately after the attempt or o ffense, * * * inflict[s], or attempt[s] to inflict, serious physical harm on another.” R.C. 2911.01(A)(3). Dwyer’s assertion that Day was not credible hinges upon his ass ertion that Day was under the influence of marijuana. He also claims that Day’s credibility was further damaged by the lack of corroborating witnesses, the fai lure to find the gun, and the fact that Day’s clothes were not in Dwyer’s possession when Dwyer was apprehended. During his testimony, Day stated that he had been robbed and th en shot by Dwyer. Day candidly admitted that he had smoked two marijuana joints on the evening-10- of December 16. He also stated that the effects had worn off p rior to the 6:30 a.m. confrontation on December 17. Additionally, the mere facts tha t no gun was found and no corroborating witnesses testified did not render Day’s testi mony inherently incredible. The jury was fully capable of determining what weight, if any, to assign to the lack of a gun or corroborating witnesses. Again, Day did suffer a gunsho t wound, and Dwyer had had the time and the opportunity to conceal the weapon. Additi onally, the video footage from the apartment showed Day with his hands in the air, a fact that the jury could have viewed as bolstering Day’s claim that Dwyer had a gun. Finally , we fail to discern how the fact that Dwyer was not holding Day’s clothing at the time of his apprehension affected Day’s credibility. Although Dwyer claimed that he observed the clothes on the ground and that Day must have discarded them while running, Dwyer admi tted that he had the clothes in his possession at some point after the two exited th e apartment. From our examination of the record, we cannot say that the jury clearly lost its way in crediting Day’s testimony. There was evidence prese nted to the jury upon which it could have relied in finding Dwyer guilty of all three charges. Therefore, Dwyer’s second assignment of error is overruled.

IV. Merger Analysis The third assignment of error presented by Dwyer states:

THE TRIAL COURT ERRED IN NOT MERGING THE OFFENSES OF

ATTEMPTED MURDE R AND FELONIOUS ASSAULT Dwyer contends that the offenses of attempted murder and feloni ous assault should have been merged. In support, he asserts that h is “actions, if believed,-11- were one set of circumstances of continual conduct involving th e same alleged victim.”

The need to discern whether crimes are allied offenses arises f rom the Double Jeopardy Clause of the Fifth Amendment, which protects i ndividuals from multiple punishments for the same offense. Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Ohio Legislature has codified this pro tection in R.C. 2941.25,

which states: (A) Where the same conduct by defendant can be construed to con stitute two or more allied offenses of similar import, the indictment o r information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offen ses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separat e animus as to each, the indictment or information may contain counts for a ll such offenses, and the defendant may be convicted of all of them.

In State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court of Ohio clarified the applicable standard to use when determining whether offenses merge as allied offenses of similar import, as follows : Rather than compare the elements of two offenses to determine whether they are allied offenses of similar import, the analysi s must focus

on the defendant's conduct to determine whether one or more con victions may result because an offense may be committed in a variety of ways and the offenses committed may have different import. No bright-li ne rule can-12- govern every situation. As a practical matter, when determining whether offenses are al lied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant's conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will p ermit separate convictions. The conduct, the animus, and the import must all be

considered.

Ruff at ¶ 30-31. The de novo standard of review is utilized with regard to a tri al court’s decision on merger. State v. Barnes , 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 10. To establish the elements of attempted murder in this case, the State had to prove that Dwyer engaged in conduct that, if successful, wou ld have resulted in purposely causing the death of another. R.C. 2903.02(A); R.C. 2 923.02(A). To establish the elements of felonious assault, the State had to prove that Dwyer knowingly caused physical harm to another by means of a deadly weapon. R.C. 2903 .11(A)(2). The conduct of pointing and shooting a gun at a person can resu lt in the death of that person. The same conduct can also fall short of causing death but can cause physical harm. However, in this case, the convictions fo r both attempted murder and felonious assault were proper because they involved separat e conduct. The evidence, primarily consisting of Day’s testimony, reflected th at the offense of attempted-13- murder occurred when Dwyer pointed the gun at Day’s head while pulling the trigger. When that was unsuccessful, Dwyer then, with gun in hand, robbe d Day of his items of clothing. Once those items were handed over, Dwyer shot Day in the leg. Thus, the felonious assault was separated from the attempted murder by th e intervening robbery. Based upon the facts of this case, we cannot say that the trial court erred in failing to merge the convictions for attempted murder and felon ious assault. Accordingly, the third assignment of error is overruled.

V. Consecutive Sentences The fourth assignment of error states as follows:

THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES Dwyer challenges the trial court’s imposition of consecutive se ntences. Specifically, he asserts the trial court did not engage in the correct statutory analysis for the imposition of consecutive sentences. He further asserts th at the record does not support consecutive sentences. When reviewing felony sentences, appellate courts apply the sta ndard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016- Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appella te court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it clearly and convincingly finds either: (1) the recor d does not support the sentencing court's findings under certain statutes (including R .C. 2929.14(C)(4), which concerns the imposition of consecutive sentences); or (2) the s entence is otherwise contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).-14- R.C. 2929.14(C)(4) allows a trial court to impose consecutive s entences if it finds that (1) consecutive service is necessary to protect t he public from future crime or to punish the offender; (2) consecutive sentences are not dispr oportionate to the seriousness of the offender's conduct and to the danger the off ender poses to the public; and (3) one or more of the following three findings are satisfi ed: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as par t of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender' s conduct. (c) The offender's history of criminal conduct demonstrates tha t consecutive sentences are necessary to protect the public from future crime by the

offender. R.C. 2929.14(C)(4)(a)-(c). “[A] trial court is required to make the findings mandated by R .C. 2929.14(C)(4) at the sentencing hearing and incorporate its fin dings into its sentencing entry[.]” State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. “[W]here a trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an appellate court may not reverse the trial court's imposition of consecutive sentences-15- unless it first clearly and convincingly finds that the record does not support the trial court's findings.” State v. Withrow , 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.).

A review of the record demonstrates that the trial court made t he required statutorily consecutive-sentence findings at the sentencing hea ring and incorporated those findings into the judgment entry, including the factors s et forth in R.C. 2929.14(C)(4)(b). The court cited Dwyer’s “cold, calculated ma nner” and “callous indifference” in committing the offenses. Specifically, the co urt noted that Dwyer returned to Webb’s apartment, with a gun, following the initial confrontation with Day. Dwyer brandished the gun in order to force Day to leave the apa rtment with him. The court noted that, instead of letting Day go when he ran out of the apartment, Dwyer chased him into the street. Once he found Day on the ground, D wyer stood over him with the gun and tried to fire while aiming at Day’s head. He then took possession of Day’s shoes, belt and jacket before shooting him in the leg. B ecause the foregoing consecutive-sentencing findings were not clearly and convincing ly unsupported by the record, the trial court's decision to impose consecutive senten ces is not subject to reversal by this court. Dwyer also suggests that the trial court erred because it did n ot consider R.C. 2929.11 and R.C. 2929.12 in determining whether to impose consecutive sentences. However, in State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, the Supreme Court of Ohio explained that R.C. 2929.11 and 2929.12 “ both clearly apply only to individual sentences[,]” and “[c]onsecutive service may not be ordered under R.C. 2929.14(C)(4) until the sentencing judge imposes * * * a senten ce for each count by considering the purposes and principles of felony sentencing un der R.C. 2929. 11 and-16- R.C. 2929.12.” Id. at ¶ 17. Thus, the Court concluded that consecutive sentences should be analyzed for compliance with R.C. 2929.14(C)(4), not R.C. 2929.11 or R.C.

2929.12. Id. at ¶ 18. Therefore, we find no error in this regard. The fourth assignment of error is overruled.

VI. Third Firearm Specification Dwyer’s fifth assignment of error states:

THE TRIAL COURT ERRED IN SENTENCING APPELLANT FOR A THIRD

THREE YEAR FIREARM SPECIFICATION Dwyer asserts the trial court erroneously imposed a prison term for the firearm specification accompanying the felonious assault convic tion. Although a trial court ordinarily may impose only one additiona l three-year prison term for multiple firearm specifications committed as pa rt of the same act or transaction ( see R.C. 2929.14(B)(1)(b)), an exception is created by R.C. 2929.14(B)(1)(g), which provides: If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attemp ted aggravated murder, attempted murder, aggravated robbery, feloni ous assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing cou rt shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the-17- offender is convicted or to which the offender pleads guilty an d, in its discretion, also may impose on the offender the prison term spe cified under that division for any or all of the remaining specifications. Here, Dwyer was convicted of attempted murder, aggravated robbe ry, and felonious assault and, as to each count, he was also convicted of a three-year firearm specification of the type described under R.C. 2929.14(B)(1)(a) . Therefore, the trial court was required to impose the three-year prison term specified und er R.C. 2929.14(B)(1)(a) “for each of the two most serious specifications” of which Dwye r was convicted. In short, R.C. 2929.14(B)(1)(a) obligated the trial court to impose separ ate prison terms for the three-year firearm specifications accompanying the attempted mu rder and aggravated robbery convictions. Additionally, the court had the discretio n to impose a prison term for the three-year firearm specification accompanying the felon ious assault conviction. A review of the sentencing hearing transcript reveals that the trial court referred to the prison term imposed for the firearm specificati on accompanying the felonious assault conviction as “an additional mandatory term o f 3 years mandatory incarceration * * *.” Tr. p. 276. Likewise, the court’s sente ncing entry refers to the prison term for the third firearm specification as “an addition al MANDATORY term of 3 years actual incarceration.” Under R.C. 2929.14(B)(1)(g), the trial court had discretion to sentence appellant to a three-year prison term on the third firearm spec ification. However, the court could not have been exercising its discretion if it belie ved, as it articulated both at the sentencing hearing and in its judgment entry, that the sent ence was “mandatory.”

State v. Bradford , 8th Dist. Cuyahoga No. 105217, 2017-Ohio-8481, ¶ 40.-18- Because the trial court concluded, contrary to R.C. 2929.14(B)( 1)(g), that imposition of a three-year prison term on the third firearm spe cification was mandatory, the trial court erred by failing to exercise its discretion, th ereby rendering that portion of Dwyer’s sentence contrary to law. The fifth assignment of erro r is sustained.

VII. Imposition of $10,000 Fine Dwyer’s sixth assignment of error states:

THE TRIAL COURT ERRED IN IMPO SING A FINE OF $10,000.00 Dwyer challenges the $10,000 fine imposed by the trial court. In support, he claims that the trial court did not consider his ability to pay the fine. Dwyer further asserts that the record demonstrates that he was indigent durin g the trial proceedings, as the public defender was appointed to represent him. Before a court may impose a financial sanction, it is required to consider the defendant's present and future ability to pay. R.C. 2929.19(B) (5). There are no specific factors the trial court must consider in its analysis, nor must it make any specific findings.

State v. Freeman , 1st Dist. Hamilton No. C-180090, 2018-Ohio-4973, ¶ 10; State v. Percy , 8th Dist. Cuyahoga No. 109502, 2021-Ohio-1876, ¶ 19. “The reco rd should, however,

contain ‘evidence that the trial court considered the offender' s present and future ability to pay before imposing [a financial sanction.]’ ” State v. Culver , 160 Ohio App.3d 172, 2005-Ohio-1359, 826 N.E.2d 367, ¶ 57 (2d Dist.), quoting State v. Robinson , 3d Dist. Hancock No. 5-04-12, 2004-Ohio-5346, ¶ 17. “As long as the rec ord contains some indication that the court considered the offender's present and future ability to pay, the court's imposition of a financial sanction is not contrary to l aw.” State v. McCants , 1st-19- Dist. Hamilton No. C-190143, 2020-Ohio-3441, ¶ 12. In reviewin g a trial court's imposition of a financial sanction, we apply the standard set f orth in R.C. 2953.08(G)(2)(b), inquiring whether the imposition of the finan cial sanction is clearly and convincingly contrary to law. State v. Dean , 2018-Ohio-1317, 110 N.E.3d 739, ¶ 72 (2d Dist.); McCants at ¶ 10. We begin with the claim that Dwyer’s indigency prevented a find ing of an ability to pay the fine. The Tenth District Court of Appeals h as addressed this issue, stating: “[a]n offender's indigency for purposes of receiving a ppointed counsel is separate and distinct from his or her indigency for purposes of avoiding having to pay a mandatory

fine.” State v. Delgadillo-Banuelos , 10th Dist. Franklin No. 18AP-729, 2019-Ohio-4174, ¶ 27, quoting State v. Pilgrim , 184 Ohio App.3d 675, 2009-Ohio-5357, 922 N.E.2d 248, ¶ 79 (10th Dist.), citing State v. Gipson , 80 Ohio St.3d 626, 631-33, 687 N.E.2d 750 (1998). The court went on to state: “there is a ‘difference be tween a defendant's inability

to raise an initial retainer in order to obtain trial counsel a nd the ability to gradually pay an imposed mandatory fine over a period of time.’ ” Id. , citing State v. Burnett , 10th Dist. Franklin No. 08AP-304, 2008-Ohio-5224, ¶ 9, quoting State v. Banks , 6th Dist. Wood No. WD-06-094, 2007-Ohio-5311, ¶ 15. Thus, the court concluded an affidavit of indigency for the purpose of receiving appointed counsel cannot be used t o demonstrate indigency for the purpose of avoiding payment of a fine after conviction. Id. We next address the issue of whether the trial court properly c onsidered Dwyer’s ability to pay the fines. There is no question the cou rt was authorized to impose a fine. Further, the amount of the fine was well within the ra nge of financial sanctions permitted by R.C. 2929.18(A)(3). Additionally, the trial court explicitly stated it had-20- considered Dwyer’s present and future ability to pay, but it ma de no findings regarding

this issue. 3 We note that Dwyer did not object to the fine or request an o pportunity to demonstrate his inability to pay a financial sanction. Although no PSI was ordered in this case and no financial infor mation was introduced, there was informatio n regarding Dwyer’s ability to pay set forth within his own sentencing memorandum. In his memorandum, Dwyer stated that he was gainfully employed at the time of the offenses and that he was capable of working. At the time of sentencing, Dwyer was 22 years old, and he will be at least 56 when he is released.

We have held that when the record contains some evidence that a defendant was previously employed, is young, and is in good hea lth, he may be considered employable when he is released from prison, even if the prison term is lengthy.

State v. Dean , 2018-Ohio-1317, 110 N.E.3d 739, ¶ 76-78 (2d Dist.). On this record, we cannot conclude that the trial court’s decis ion was clearly and convincingly contrary to law. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. Accordingly, the sixth assignment of err or is overruled.

VIII. Conclusion Since Dwyer’s fifth assignment of error is sustained, the porti on of the judgment imposing of a prison term for the firearm specificatio n accompanying the felonious assault conviction is reversed, and the matter is rem anded to the trial court for

3 “A trial court's statement in a judgment entry that it conside red the offender's present and future ability to pay a fine is evidence that the trial cou rt considered the offender's ability to pay.” Delgadillo-Banuelos , 10th Dist. Franklin No. 18AP-729, 2019-Ohio-4174, at ¶ 35.-21- the sole purpose of resentencing Dwyer regarding the firearm sp ecification attached to the felonious assault count. The judgment of the trial court i s affirmed in all other respects.

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WELBAUM, J. and EPLEY, J., concur.

Copies sent to: Marcy A. Vonderwell David R. Miles Hon. Michael A. Buckwalter