State of Ohio v. Lorell Anderson, Jr.
No. 18AP-103 (C.P.C. No. 16CR-2672)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 15, 2018
2018-Ohio-4618
SADLER, J.
(REGULAR CALENDAR)
Rendered on November 15, 2018
On brief: Michael DeWine, Attorney General, Anna L. Haffner, and William C. Greene, for appellee. Argued: Anna L. Haffner.
On brief: Yeura R. Venters, Public Defender, and Robert D. Essex, for appellant. Argued: Robert D. Essex.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Lorell Anderson, Jr., appeals from the judgment entry of the Franklin County Court of Common Pleas finding appellant guilty of Medicaid fraud and theft. For the following reasons, we affirm the decision of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 17, 2016, a Franklin County Grand Jury indicted appellant on one count of Medicaid fraud, a fourth-degree felony, in violation of
{¶ 3} On August 24, 2017, appellant entered an “Alford plea” of guilty to both counts in the indictment. (Entry of Guilty Plea at 1; Aug. 24, 2017 Tr. at 2.) At the plea hearing, the prosecutor set forth the facts giving rise to the indictment as follows:
From November 4th, 2010 through February 6th, 2015, the defendant billed and received payments from the Ohio Department of Medicaid for services he did not provide to two Medicaid recipients.
The defendant was supposed to provide adult day and vocational services and personal care services for two developmentally disabled Medicaid recipients. The defendant claims to have helped one recipient obtain a job and provide on-site vocational assistance at Spaghetti Warehouse three to four times a week. However, both the recipient and the restaurant manager confirmed he did not provide any on-site vocational assistance.
The second Medicaid recipient was supposed to be receiving transportation services which the defendant billed for, which several trips did not happen. This caused an overpayment in the amount of $25,285.80.
(Aug. 24, 2017 Tr. at 8-9.)
{¶ 4} The trial court accepted appellant‘s guilty plea, and plaintiff-appellee, State of Ohio, elected to merge the theft count into the Medicaid fraud count for sentencing. The trial court scheduled the matter for sentencing and ordered a pre-sentence investigation (“PSI“). The following day, August 25, 2017, appellant filed a motion objecting to any sentence of the trial court that imposes a financial sanction, including an order to pay restitution to the victim, “without first holding an ‘ability to pay’ hearing pursuant to
{¶ 5} The court held the sentencing hearing on January 9, 2018. Appellant was again represented by counsel. The trial court stated the PSI had been completed, and
{¶ 6} Appellant‘s counsel contested his ability to pay restitution because of his physical and medical problems. Specifically, appellant‘s counsel told the trial court that appellant is on dialysis, which he receives three times a week—“Monday, Wednesday and Friday“—is “in basically late stage renal failure,” has had “a number of strokes” and surgeries, and is living with friends and family who provide him with food. (Jan. 9, 2018 Tr. at 4.) According to appellant‘s counsel, appellant “is in the process of getting Social Security himself” and “is unable to obtain employment because of his medical conditions.” (Jan. 9, 2018 Tr. at 5.) Appellant‘s counsel presented the trial court with letters from appellant‘s doctors that, according to appellant, verify appellant‘s representations regarding his health. Appellant‘s counsel further stated that appellant “always denied his guilt” and “would have liked to have gone to trial” but took an Alford plea because going to trial would have been physically impossible for him to endure due to his medical conditions. (Jan. 9, 2018 Tr. at 5.) The trial court confirmed with appellant that he was unable to obtain or maintain employment.
{¶ 7} The trial court then sentenced appellant to non-reporting community control for 2 years, which, if violated, would result in a 17-month prison term, and ordered appellant to pay $25,285.80 in restitution to the Ohio Department of Job and Family Services. The trial court waived fines and costs. Counsel for appellant noted his objection, and the trial court stated “[i]f you want to file a motion with verification of the medical conditions, I will take a look at it.” (Jan. 9, 2018 Tr. at 8.) The judgment entry memorializing the sentence, filed Jan. 11, 2018, states the trial court ordered and received a PSI and considered appellant‘s present and future ability to pay pursuant to
{¶ 8} Appellant filed a timely appeal.
II. ASSIGNMENT OF ERROR
{¶ 9} Appellant assigns the following as trial court error:
The trial court erred to the prejudice of the appellant when it ordered restitution without determining his ability to pay as required by law and when appellant clearly did not have a present or future ability to pay.
{¶ 10} As recently set forth in State v. Allen, 10th Dist. No. 17AP-296, 2018-Ohio-1529, ¶ 11, generally:
A sentencing court has discretion to order restitution for the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. State v. Lalain, 136 Ohio St. 3d 248, 2013-Ohio-3093, ¶ 3, 994 N.E.2d 423. On review of a trial court‘s imposition of restitution as part of a felony sentence, we apply the standard set forth in
R.C. 2953.08(G)(2)(b) ,1 inquiring whether the imposition of restitution is clearly and convincingly contrary to law. State v. Richmond, 10th Dist. No. 17AP-366, 2018-Ohio-147, ¶ 8; State v. Thornton, 1st Dist. No. C-160501, 2017-Ohio-4037, ¶ 12, 91 N.E.3d 359; State v. Brown, 2d Dist. No. 26945, 2017-Ohio-9225, ¶ 25, 103 N.E.3d 305.
Id. State v. Collins, 12th Dist. No. CA2014-11-135, 2015-Ohio-3710, ¶ 29-31 (concluding where a felony is involved, the proper standard of review of restitution orders is whether the sentence complies with
A. Appellant‘s Assignment of Error
{¶ 11} In his assignment of error, appellant contends he did not have the present or future ability to pay restitution, and the trial court did not determine his ability to pay restitution as required by law. For the following reasons, we disagree.
{¶ 12}
{¶ 13} For example, pertinent to this case, before imposing restitution under
{¶ 14} Where the record does not contain any evidence that the trial court considered the defendant‘s present or future ability to pay restitution, this court has found that portion of the trial court‘s sentence to be contrary to law. Hayes at ¶ 17 (finding no evidence showed the trial court considered the felony offender‘s ability to pay restitution
{¶ 15} Conversely, as evidence the trial court did consider the defendant‘s present or future ability to pay restitution, pursuant to
{¶ 16} Appellant first argues that the trial court did not give proper consideration to his present and future ability to pay restitution as mandated by statute. Appellant points to this court‘s language in State v. Wiley, 10th Dist. No. 16AP-686, 2017-Ohio-2744, ¶ 20, for the proposition that language in the trial court‘s judgment entry indicating it had considered ability to pay is not sufficient to show the trial court “has given full consideration to the matter.” (Appellant‘s Brief at 4.) In Wiley, we stated that under
While the trial court stated in its judgment entry that, “[t]he Court has considered the Defendant‘s present and future ability to pay a fine and financial sanction, pursuant to
R.C. 2929.18 ,” it made no express consideration of the issue or finding on the record to this end. (Jgmt. Entry at 2.) Regardless of what restitution amount may be ordered, even under the simple admonition in Conway, some genuine consideration of ability to pay must occur. Id.
Wiley at ¶ 20.
{¶ 18} Here, the record shows the issue of appellant‘s ability to pay was squarely before the trial court. Appellant filed a motion prior to the sentencing hearing regarding his ability to pay, at the hearing the trial court provided appellant and his counsel the opportunity to speak on the issue, and appellant and his counsel testified regarding his alleged medical problems and ability to be employed. The trial court asked appellant about his ability to obtain and maintain employment. The trial court had the benefit of a PSI, which contained pertinent information about appellant‘s age, health, education, home ownership, and work history. As stated in Conway at ¶ 10 and Thompson at ¶ 40, when a trial court considers a PSI, compliance with
{¶ 19} Appellant next argues that even if the trial court gave proper consideration to his ability to pay, its conclusion was incorrect because appellant‘s medical conditions preclude him from obtaining employment, and, therefore, appellant had no realistic ability presently or in the future to pay restitution.
{¶ 20} We first note appellant‘s argument that he had no realistic ability presently or in the future to pay restitution is undermined by evidence in the record. Appellant was not sentenced to jail, and the PSI includes some information that challenges appellant‘s contention that he cannot work in some manner. While appellant‘s counsel presented letters from appellant‘s doctors to the trial court, the trial court apparently did not consider them dispositive to appellant‘s medical state, telling appellant he would consider a further motion and evidence verifying the medical conditions. Appellant apparently did not provide any further information to the trial court.
{¶ 22} Overall, under Conway at ¶ 7 and its progeny, sufficient evidence in the record shows the trial court considered appellant‘s present and future ability to pay the sanction under
{¶ 23} Accordingly, we overrule appellant‘s assignment of error.
V. CONCLUSION
{¶ 24} Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and KLATT, JJ., concur.
Notes
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
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(b) That the sentence is otherwise contrary to law.