State v. DahmsState v. Dahms
Karin L. Coble, for appellant.
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SINGER, P.J.
{¶ 1} This is an appeal from a judgment of conviction issued by the Sandusky County Court of Common Pleas following appellant’s guilty plea to the offense of aggravated arson and tampering with evidence. Because we conclude that the trial court
{¶ 2} Appellant, Nicholas B. Dahms, was initially indicted on ten counts: Counts 1 through 7, attempted murder, in violation of
{¶ 3} Appellant now appeals from that judgment, arguing the following four assignments of error:
Assignment of Error One: The trial court failed to strictly comply with
Crim.R. 11(C)(2)(c) when accepting appellant’s guilty plea, rendering appellant’s plea invalid.Assignment of Error Two: The trial court erred in imposing restitution.
Assignment of Error Three: The trial court, in imposing incarceration for the offense, abused its discretion when it failed to properly consider R.C. 2929.11(B) .Assignment of Error Four: The trial court erred in imposing the costs of prosecution and the costs of court-appointed counsel.
I.
{¶ 4} In his first assignment of error, appellant contends that his plea was invalid because the trial court did not “strictly comply” with
{¶ 5} Before accepting a guilty plea, a trial court must strictly comply with
{¶ 6} A guilty plea “is a complete admission of the defendant‘s guilt.”
{¶ 7} In this case, the record reveals that the trial court advised appellant of all the rights and consequences of a guilty plea as listed in
{¶ 8} In Mitchell, a defendant pled guilty to drug charges. Id. at 318. At sentencing, the court relied on testimony of codefendants to determine the amounts of cocaine she allegedly had carried. Id. at 319. The defendant asserted her Fifth Amendment right against self-incrimination and did not refute those statements. Id. When imposing sentence, the trial court specifically told the defendant that it held it
{¶ 9} On appeal, the United States Supreme Court addressed the following two issues: (1) “whether, under the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered” and (2) “whether, in determining facts about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant’s silence.” Id. at 316-317. The Mitchell court ultimately held in the negative on both issues, stating that a guilty plea is not a waiver of the privilege at sentencing and that the trial court may not draw an adverse inference against a defendant who chooses to remain silent during sentencing. Id.
{¶ 10} Mitchell also noted that it is “well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Id. at 321, citing to Rogers v. United States, 340 U.S. 367, 373, 71 S.Ct. 438, 95 L.Ed. 344 (1951). The privilege is “waived for the matters to which the witness testifies, and the scope of the ‘waiver is determined by the scope of relevant cross-examination.’ ” Mitchell, supra, at 321, citing Brown v. United States, 356 U.S. 148, 154-155, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).
{¶ 11} In the present case, the trial court’s inquiry did not violate appellant’s Fifth Amendment right to remain silent. First, appellant did not object to answering the court’s questions. In addition, appellant had already agreed to testify against a co-defendant at
{¶ 12} The court did not ask any questions beyond the scope of the events related to appellant’s plea and, consequently, appellant did not object to the court’s inquiry. Furthermore, unlike the defendant in Mitchell, appellant did not assert the right to remain silent, but voluntarily answered the court’s questions. Therefore, there is no “silence” from which the court could have drawn an adverse inference, and Mitchell simply does not apply to the facts of this case.
{¶ 13} Accordingly, appellant’s first assignment of error is not well-taken.
II.
{¶ 14} In his second assignment of error, appellant argues that the trial court erred in imposing restitution.
{¶ 15} Appellate courts review an order of restitution under the abuse of discretion standard. State v. Naughton, 11th Dist. No. 2011-L-083, 2012-Ohio-1271, ¶ 28; State v. Burns, 8th Dist. No. 95465, 2011-Ohio-4230, ¶ 37.
{¶ 16} The trial court need not conduct a hearing on the issue of financial sanctions and there are no express factors that the court must take into consideration or make on the record. State v. Russell, 2d Dist. No. 23454, 2010–Ohio–4765, ¶ 62, citing State v. Culver, 160 Ohio App.3d 172, 2005–Ohio–1359, 816 N.E.2d 367, ¶ 57 (2d Dist.). A trial court need not even state that it considered an offender‘s ability to pay, but the record should contain some evidence that the trial court considered the offender‘s ability to pay. Russell, supra, at ¶ 62.
{¶ 17} In this case, as part of his plea agreement, appellant agreed to “an order of restitution.” Neither the written plea agreement nor the plea colloquy in court, however, specified the amount of the restitution. During the sentencing hearing, the trial court did not address either the amount of restitution or appellant’s ability to pay such restitution. As part of his plea agreement, however, appellant had already agreed to some amount of restitution. Consequently, as to the general order of restitution, appellant waived any requirement that the court consider his ability to pay.
{¶ 18} Nevertheless, the trial court should have disclosed the restitution amount it intended to impose during sentencing, which would have provided appellant the opportunity to dispute the amount. Therefore, we conclude that the trial court erred in failing to indicate the amount of restitution it was imposing during the sentencing hearing.
{¶ 19} Accordingly, appellant’s second assignment of error is well-taken.
III.
{¶ 20} In his third assignment of error, appellant claims that the trial court failed to properly consider
{¶ 21} The consistency and proportionality requirements of
{¶ 22} In addition, consistency in sentencing does not result from a case-by-case comparison, but by the trial court‘s proper application of the statutory sentencing guidelines. State v. Hall, 179 Ohio App.3d 727, 2008–Ohio–6228, 903 N.E.2d 676, ¶ 10 (10th Dist.). An offender cannot simply present other cases in which an individual convicted of the same offense received a lesser sentence to demonstrate that his sentence
{¶ 23} In this case, during the sentencing hearing, the court indicated that it was considering “the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender and making restitution to the victim of an offense, the public or both.” The court further noted that the sentence imposed “shall be reasonably calculated to achieve the two overriding purposes of felony sentencing as set forth in the law, commensurate with, and not demeaning to the seriousness of the offender’s conduct, and its impact on the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.” (Emphasis added.)
{¶ 24} Appellant does not dispute that the sentence imposed is within the authorized statutory range. Rather, appellant argues that his sentence is allegedly harsher than sentences imposed on other offenders who have committed similar crimes. As required, the court considered the particular facts surrounding the offender and his crime. Appellant had a lengthy criminal history involving drugs, theft, and probation violations. Prior attempts to resolve his drug problems through rehabilitation programs were unsuccessful. The court acknowledged appellant’s sincere remorse, but, ultimately determined that the seriousness of the offense and impact on the victims outweighed any
{¶ 25} Accordingly, appellant’s third assignment of error is not well-taken.
IV.
{¶ 26} In his fourth assignment of error, appellant asserts that the trial court erred when it imposed the costs of prosecution and the costs of court-appointed counsel.
{¶ 27}
{¶ 28} In addition,
{¶ 29} Thus, before an indigent defendant may be required to pay his attorney fees pursuant to
{¶ 30} In this case, the court was statutorily required to impose the costs of prosecution on appellant, without consideration of his ability to pay. As to the appointed
{¶ 31} Accordingly, appellant’s fourth assignment of error is well-taken.
{¶ 32} The judgment of the Sandusky County Court of Common Pleas is affirmed in part, and reversed in part. This case is remanded to the trial court for the court to address the issue of restitution and to consider and make a finding on the record as to appellant’s ability to pay his court-appointed attorney fees. Appellant and appellee are each ordered to pay one-half of the costs of this appeal pursuant to
Judgment affirmed, in part, and reversed, in part.
S-11-028
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
JUDGE
Arlene Singer, P.J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.