State v. Jordan, 2021 Ohio 333

Jerome Jordan was indicted on 11 counts of aggravated robbery; he pleaded guilty via an Alford plea to six robbery counts as part of a plea agreement.
The plea agreement included Jordan’s promise to “pay restitution in an amount to be determined through the pre-sentence investigation.”
At sentencing the court imposed consecutive prison terms totaling 16 years and ordered $4,961.05 in restitution to victims; the court orally ordered payment of "the costs of prosecution."
The written judgment entry also stated the court found Jordan “to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution,” and ordered reimbursement.
Jordan filed a delayed appeal arguing the court failed to consider his ability to pay restitution and that the court improperly imposed costs (confinement and assigned counsel) without findings as to ability to pay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by imposing restitution without considering defendant’s ability to pay	State: Restitution was part of the plea agreement, so defendant waived challenge to ability-to-pay consideration	Jordan: He cannot be barred from challenging imposition because the restitution amount was not specified at plea and the court never considered his ability to pay	Court: Waiver — because Jordan agreed in the plea to pay restitution, he may not challenge the court’s failure to consider ability to pay; first assignment not well-taken
Whether the court properly imposed costs of confinement and assigned-counsel fees without finding ability to pay	State: Costs of prosecution are mandatory; non-mandatory costs require a finding of ability to pay but the judgment entry reflects such a finding	Jordan: The court made no on-the-record findings or considered evidence of his ability to pay before imposing non-mandatory costs	Court: Split — mandatory costs of prosecution affirmed; non-mandatory costs of confinement and assigned counsel vacated for lack of findings/evidence of ability to pay

North Carolina v. Alford, 400 U.S. 25 (U.S. 1970) (acceptance of guilty plea despite protestations of innocence)
State v. Lalain, 994 N.E.2d 423 (Ohio 2013) (trial court may impose restitution as part of sentence)
State v. Collins, 41 N.E.3d 899 (Ohio Ct. App.) (standard for reviewing restitution orders is whether sentence is contrary to law)
State v. Bey, 130 N.E.3d 1031 (Ohio Ct. App.) (trial court must determine offender’s present or future ability to pay before imposing non-mandatory costs)