[Cite as State v. Kinley, 2020-Ohio-542.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

STEPHANIE KINLEY, 

 Defendant-Appellant. 

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APPEAL NO. C-190270 

TRIAL NO. B-1900756A 

 O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

Remanded 

Date of Judgment Entry on Appeal: February 19, 2020 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant 

Prosecuting Attorney, for Plaintiff-Appellee, 

Arenstein & Gallagher, William Gallagher and Elizabeth Conklin, for DefendantAppellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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MYERS, Presiding Judge. 

{¶1} Defendant-appellant Stephanie Kinley appeals from the trial court’s 

judgment convicting her of five counts of theft. In three assignments of error, she 

argues the sentences imposed were contrary to law, her trial counsel rendered 

ineffective assistance, and the trial court’s judgment entry does not reflect the correct 

amount of jail-time credit. 

{¶2} Because the trial court’s judgment entry incorrectly reflects that Kinley 

was awarded two days of jail-time credit, when the trial court had actually awarded 

Kinley 52 days of jail-time credit, we remand this case for the trial court to correct 

nunc pro tunc the clerical error in its judgment entry. The judgment of the trial court 

is otherwise affirmed. 

Procedural Background 

{¶3} Kinley was indicted for five counts of theft, three counts of 

unauthorized use of property, five counts of tampering with records, and five counts 

of forgery. She ultimately pled guilty to five counts of theft. Three of these theft 

offenses were fourth-degree felonies and the remaining two offenses were thirddegree felonies. The trial court sentenced Kinley to 12 months in prison for each of 

the three offenses that were fourth-degree felonies. And it sentenced her to 18 

months in prison for the two offenses that were third-degree felonies. All sentences 

were made concurrent, resulting in an aggregate sentence of 18 months in prison. At 

the sentencing hearing, the trial court awarded Kinley 52 days of jail-time credit. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Sentencing 

{¶4} In her first assignment of error, Kinley challenges the sentences 

imposed, arguing that they were disproportionate to her conduct and its impact on 

the victims. 

{¶5} Pursuant to R.C. 2953.08(G)(2), we may modify or vacate a 

defendant’s sentence only if we clearly and convincingly find that the record does not 

support the mandatory sentencing findings or that the sentence is contrary to law. 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-

23; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st Dist.). No mandatory 

sentencing findings were required in this case. And all sentences imposed fell within 

the applicable statutory ranges and were not contrary to law. 

{¶6} Kinley contends that the trial court’s findings with respect to the 

seriousness and recidivism factors under R.C. 2929.11 and 2929.12 were erroneous. 

While a trial court is to be guided by the purposes of felony sentencing set forth in 

R.C. 2929.11 and is required to consider the seriousness and recidivism factors 

contained in R.C. 2929.12, these are not fact-finding statutes, and in the absence of 

an affirmative demonstration by the defendant to the contrary, we may presume that 

the trial court considered them. State v. Patterson, 1st Dist. Hamilton No. C-170329, 

2018-Ohio-3348, ¶ 60. In this case, the trial court specifically stated at sentencing 

that it had considered the relevant sentencing factors. 

{¶7} Kinley further takes issue with certain statements that the trial court 

made at sentencing, contending that the trial court erroneously treated her theft 

offenses as being tantamount to the offense of burglary. We disagree. Kinley’s theft 

convictions involved the act of forging documents (including deeds) and transferring 

real properties from the victims into the name of Kinley or that of a corporation that 

she had set up. At sentencing, the trial court noted that there were victims who were 
OHIO FIRST DISTRICT COURT OF APPEALS 

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harmed. Kinley gave a curt response indicating she did not believe anyone was 

harmed and stating she would like to see a doctor’s bill showing harm. One of the 

victims then spoke about the harm suffered. In announcing its sentence, the trial 

court talked about the seriousness of the offense and the impact on the victims. The 

court then discussed how violated a victim would feel to come home to her house and 

find someone had forged a deed and had taken it. The court then stated: 

That’s just flat out mean. Anybody that deals with me knows I don’t 

like burglars because they change people’s lives forever. You break 

into somebody’s house, those people forever, forever, every time they 

go in that house turn the lights on. They’re wondering is somebody in 

my house. What you guys did is like a burglary, okay? The burglar is 

going to take money and take property and whatever he needs. You 

guys went into people’s property and took their property and didn’t 

leave. 

The court then proceeded to discuss the impact that Kinley’s actions had on the 

victims. These comments were not improper. The trial court did not equate Kinley’s 

theft offense to the offense of burglary, but rather analogized the fear and harm that 

Kinley’s victims experienced to that of a victim of burglary. 

{¶8} The trial court did not err in the imposition of sentence. The first 

assignment of error is overruled. 

Ineffective Assistance 

{¶9} In her second assignment of error, Kinley argues that she received 

ineffective assistance from her trial counsel because counsel failed to ask the trial 

court to waive the imposition of court costs at sentencing. She contends there was a 
OHIO FIRST DISTRICT COURT OF APPEALS 

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strong probability that the trial court would have waived the payment of court costs 

and that she was prejudiced by counsel’s actions. 

{¶10} Counsel will not be considered ineffective unless her or his 

performance was deficient and caused actual prejudice to the defendant. Strickland 

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. 

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance 

will only be deemed deficient if it fell below an objective standard of reasonableness. 

Strickland at 688; Bradley at 142. A defendant is only prejudiced by counsel’s 

performance if there is a reasonable probability that the outcome of the proceeding 

would have been different but for the deficient performance. Strickland at 

694; Bradley at 142. A reviewing court must indulge a presumption that counsel’s 

behavior fell within the acceptable range of reasonable professional assistance. 

Strickland at 689; Bradley at 142. 

{¶11} A trial court is required to impose court costs pursuant to R.C. 

2947.23(A)(1)(a), which specifically states that “[i]n all criminal cases, including 

violations of ordinances, the judge or magistrate shall include in the sentence the 

costs of prosecution, including any costs under section 2947.231 of the Revised Code, 

and render a judgment against the defendant for such costs.” But R.C. 2947.23(C) 

further provides that “[t]he court retains jurisdiction to waive, suspend, or modify 

the payment of the costs of prosecution, including any costs under section 2947.231 

of the Revised Code, at the time of sentencing or at any time thereafter.” So although 

the imposition of the court costs is mandatory, the trial court has the authority to 

waive the payment of the costs any time after they are imposed, as long as they 

remain unpaid. State v. Braden, Slip Opinion No. 2019-Ohio-4204, ¶ 23 and 30; 

State v. Moore, 6th Dist. Erie No. E-19-009, 2019-Ohio-4609, ¶ 15. 

{¶12} In State v. Davis, Slip Opinion No. 2020-Ohio-309, the Ohio Supreme 

Court recently addressed whether trial counsel’s failure to ask the trial court to waive 
OHIO FIRST DISTRICT COURT OF APPEALS 

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court costs at sentencing constituted ineffective assistance when the defendant had 

previously been found indigent. The court held that “a court must review the facts 

and circumstances of each case objectively and determine whether the defendant 

demonstrated a reasonable probability that had his counsel moved to waive court 

costs, the trial court would have granted that motion.” Id. at ¶ 14. Prejudice cannot 

be presumed merely because the defendant had previously been found indigent. Id. 

at ¶ 15. Nor can the lack of prejudice be presumed merely because the defendant 

may move for a waiver of court costs at a later time after sentencing. Id. at ¶ 14. 

{¶13} Here, Kinley argues that the trial court would likely have granted a 

motion to waive court costs because she previously had been found indigent, her 

financial circumstances had not changed at the time of sentencing, and appellate 

counsel had been appointed for her. We hold that Kinley has failed to demonstrate a 

reasonable probability that the trial court would have granted a motion to waive 

court costs. Kinley has demonstrated that she was indigent, but as the Davis court 

noted, that is not sufficient for prejudice to be presumed. See id. at ¶ 15. Moreover, 

there is evidence in the record that Kinley held steady employment until her arrest. 

{¶14} Because Kinley has failed to establish that she was prejudiced by 

counsel’s failure to request a waiver of court costs, we overrule the second 

assignment of error. 

Jail-Time Credit 

{¶15} In her third assignment of error, Kinley argues that the trial court 

erred by awarding her only two days of jail-time credit in the judgment entry, when it 

had awarded her 52 days of jail-time credit at sentencing. The state concedes that 

the judgment entry does not correctly reflect the amount of jail-time credit. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶16} We agree, and therefore sustain Kinley’s third assignment of error. 

This case is remanded for the trial court to correct nunc pro tunc the clerical error in 

its judgment entry so that the entry reflects that Kinley is entitled to 52 days of jailtime credit. The judgment of the trial court is otherwise affirmed. 

Judgment accordingly. 

CROUSE and WINKLER, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.