2020 Ohio 4655
Ohio Ct. App.2020Background
- On May 8, 2018 a street fight and subsequent confrontation led to gunfire; appellant Zukee Floyd was indicted on multiple firearm-related felonies arising from that incident.
- After a four-day jury trial, Floyd was acquitted of felonious assault and one firearm-count but convicted of improperly discharging a firearm at or into a habitation and tampering with evidence, each with firearm specifications.
- At sentencing the victim (T.E.) orally stated she incurred $4,020 in losses: $1,200 charged by her housing unit for damage, $2,150 for first+last month’s rent to relocate, and $670 for moving/storage expenses.
- The trial court imposed a six-year prison term and ordered $4,020 restitution (deferred while incarcerated).
- Floyd appealed, raising three assignments of error: (1) restitution amount lacked competent, credible evidence; (2) court failed to consider Floyd’s ability to pay; (3) ineffective assistance of counsel for not objecting to restitution or inability-to-pay consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether the $4,020 restitution was supported by competent, credible evidence | State: Victim’s oral testimony at sentencing provided competent, credible evidence sufficient to establish losses to a reasonable degree of certainty | Floyd: Victim offered no documentary proof and unsworn statements lack certainty (and possibly third‑party reimbursement) | Court: Victim’s unsworn testimony was credible; oral testimony may support restitution; no record of third‑party reimbursement; restitution affirmed |
| 2. Whether the court considered Floyd’s present and future ability to pay before ordering restitution | State: Court’s judgment entry and the sentencing record (defendant’s testimony about employment, age, lack of disability, and deferral of payments while incarcerated) show consideration of ability to pay | Floyd: No explicit on‑the‑record findings or hearing; court’s comments emphasized family payments rather than defendant’s ability | Court: Looking at the totality of the record and the sentencing entry, the court satisfied R.C. 2929.19(B)(5); no plain error |
| 3. Whether trial counsel was ineffective for failing to object to restitution and the court’s consideration of ability to pay | State: Counsel’s choices were tactical (defer restitution, use restitution to seek minimum sentence); no prejudice shown because no plain error in underlying rulings | Floyd: Counsel’s failure to object was deficient and prejudiced the outcome | Court: Counsel’s performance falls within reasonable strategy; Floyd cannot show prejudice because the restitution and ability‑to‑pay rulings survive plain‑error review; ineffective‑assistance claim denied |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- Bradley v. State, 42 Ohio St.3d 136 (1989) (applying Strickland in Ohio)
- State v. Lalain, 136 Ohio St.3d 248 (2013) (trial court may order restitution for economic loss caused by offense; hearing required if amount is disputed)
- State v. Rogers, 143 Ohio St.3d 385 (2015) (forfeiture of objection to restitution and plain‑error review)
- State v. Long, 53 Ohio St.2d 91 (1978) (plain‑error doctrine applied cautiously)
- DeHass v. State, 10 Ohio St.2d 230 (1967) (trial court is the factfinder for credibility determinations)