STATE OF OHIO v. ZACHARY A. FULTON
CASE NO. 2018-P-0048
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2019-Ohio-2509
[Cite as State v. Fulton, 2019-Ohio-2509.]
THOMAS R. WRIGHT, P.J.
Plaintiff-Appellee, :
CASE NO. 2018-P-0048
- vs - :
ZACHARY A. FULTON, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR 00343.
Judgment: Affirmed in part, reversed in part, and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Shubhra N. Agarwal, 3732 Fischreek Road, #288, Stow, Ohio 44224 (For Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Zachary Fulton, appeals his domestic violence conviction following a jury trial. We affirm in part, reverse in part, and remand for resentencing.
{¶2} Fulton was charged with possession of mаrijuana, obstructing official business, and domestic violence. Following the close of evidence, the state dismissed the possession charge, and the court granted Fulton’s motion for acquittal on obstructing
{¶3} He raises five assigned errors:
{¶4} “[1.] The trial court committed reversible error when it overruled Mr. Fulton’s Crim.R. 29(A) motion for acquittal because the evidence was insufficient to support a cоnviction.
{¶5} “[2.] Mr. Fulton’s conviction for domestic violence was against the manifest weight of the evidence.
{¶6} “[3.] The trial court committed reversible and plain error when it sentenced Mr. Fulton without properly giving him the notifications concerning post-release control.
{¶7} “[4.] The trial court committed reversible and plain error by ordering the defendant to pay an ‘assessment and recoupment fee.’
{¶8} “[5.] The trial court committed reversible error in assessing a fine and an ‘assessment and rеcoupment fee’ without making a finding that he had the ability to pay those amounts.”
{¶9} We collectively address Fulton’s first and second assigned errors challenging the sufficiency of the evidence and claiming that his conviction is against the manifest weight of the evidence.
{¶10} Upon reviewing the denial of a motion for acquittal, we use the same standard of review used for sufficiency of the evidence claims. State v. Wright, 11th Dist. Portage No. 2000-P-0128, 2002-Ohio-1432, *2; State v. Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-3479, 66 N.E.3d 318, ¶ 16. In reviewing a challenge to the sufficiency of the evidenсe, an appellate court views the evidence in a light most favorable to the
{¶11} “In viewing a sufficiency of the evidenсe argument, the evidence and all rational inferences are evaluated in the light most favorable to the prosecution. See State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on grounds of sufficiency unless the reviewing court determines that no rational juror could have found the elements of the offense proven beyond a reasonable doubt. Id.” State v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, 96 N.E.3d 1046, ¶ 95, appeal not allowed, 151 Ohio St.3d 1515, 2018-Ohio-365, 90 N.E.3d 952.
{¶12} “Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, thаt court may nevertheless conclude that the judgment is against the weight of the evidence. * * * Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to bе established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’ (Emphasis added.) [Black‘s Law Dictionary (6 Ed.1990)], at 1594.
{¶14} “The trier of fact is free to believe all, part, or none of the testimony of any witness, and we defer to the trier of fact on evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility. * * *.” State v. Miller, 4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶ 28.
{¶15} A finding that a conviction is not against the manifest weight of the evidence necessarily encompasses a sufficiency finding as well. State v. Skeins, 11th Dist. Trumbull No. 2017-T-0018, 2018-Ohio-134, ¶ 10, citing State v. McGowan, 7th Dist. Jefferson No. 14JE37, 2016-Ohio-48, ¶ 4.
{¶16} Here, Fulton was convicted of domestic violence in violation of R.C. 2919.25(A), whiсh states: “No person shall knowingly cause or attempt to cause physical harm to a family or household member.”
{¶18} Fulton argues that the state failed to demonstrate that he caused physical harm to the mother of his two children, Allyson Prunty. He instead claims the evidence shows that the two only had a verbal altercation and she harmed herself. He also contends that her injuries were not fresh or recently inflicted.
{¶19} Prunty testified that she and Fulton have been in an on-again, off-again relationship for more than 10 years and have two children together. Prunty confirmed that Fulton does not permanently reside in her apartment but stays with her from time to time.
{¶20} Before the incident, Fulton had been staying with Prunty for a few days. When she asked him to leave, he became angry and they began arguing. The argument escalated, and Prunty recalls Fulton hitting her in the face with his fist. He hit her near her right eye more than once, but she does not recall the exact number of times he hit her. Prunty was crying and afraid. She recalls having a cut above her eye and two black eyes. Her nose and face were swollen, and her knee was hurting. She went to a neighbor’s and knocked on the door for help, but there was no answer. She did nоt call the police.
{¶21} On cross-examination, Prunty denied these injuries were self-inflicted. She also confirmed that she had previously broken her nose several times and admitted to
{¶22} Sean Canterbury, an individual doing construction work on the apartment below Prunty’s unit heard the dispute above him. He heard yelling and stuff being thrown. He also described hearing slapping sounds and then heard a woman and child crying. Canterbury called the project manager, an ex-police officer, who called the police and reported the altercation.
{¶23} City of Kent Police Department Officer John Romanoski was dispatched to Prunty’s apartment for a domestic disturbance. He had Officer Joshua Nelson go around the back of the unit in case someone fled. When Romanoski knocked on Prunty’s door, a shoeless Fulton jumped out of a second-story window with Prunty’s phone in hand.
{¶24} Romanoski explained that Fulton denied any physical altercation. Fulton told Romanoski that Prunty’s injuries were self-inflicted, and he claimed that he jumped from the window to go jogging.
{¶25} Officer Nelson, who apprehended Fulton after he jumped from the window, alsо interviewed Prunty at the scene, and Nelson recalls that her “face was swollen from her nose up to her forehead, and her eyes were starting to turn black and blue.” She was very timid and did not want to talk. The state introduced a photo of Prunty confirming Nelson’s description of her injuries.
{¶26} Based on the foregoing, the evidence is more than sufficient to show that Fulton knowingly caused physical harm to Prunty, the mother of his two children, when
{¶27} Fulton’s third assignment contends error based on the trial court’s alleged failure to provide the requisite post-release control notifications both at his sentencing hearing and in its sentencing entry.
{¶28} “[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court‘s findings under relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, applying
{¶29} A valid and statutory-compliant imposition of post-release control requires the sentencing court to advise the defendant of three things at the sentencing hearing and in its sentencing entry: “(1) whether postrelease control is discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a statement to the effect that the Adult Parole Authority (‘APA’) will administer the postrelease control pursuant to
{¶31} If properly notified, and any of the foregoing is absent from the entry, a court can correct the error by issuing a nunc pro tunc entry “”as long as the correction is accomplished prior to the defendant‘s completion of his prison term.”” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 24.
{¶32} Here, Fulton claims the court failed to notify him at the hearing and in its entry that if he committed a new felony while on post-release control, the court sentencing on the new felony could terminate his post-relеase control for the instant offense, sentence him to twelve months in prison or his remaining prison term for this offense, and make the prison terms consecutive. His arguments are based on
{¶33} Thus, Fulton contends a new sentencing hearing is required.
{¶34} Contrary to Fulton’s argument, however, a sentencing court is not required to notify a defendant about penalty provisions that apply only when an offender is
{¶35} “
{¶36} “Applying the plain language of the unambiguous statute,
{¶37} Consequently, because Fulton’s post-release control notification arguments are based on
{¶38} Fulton’s fourth assignment challenges the trial court’s authority to order him to pay an “assessment recoupment fee.” He argues the court lacks the authority to impose such a fee. Because the trial court’s intent and authority are unclear regarding this fee, we reverse and remand.
{¶40} As alleged, the trial court ordered Fulton to pay an “assessment recoupment fee” at the hearing, stating:
{¶41} “You will be assessed a fine of $300.00 and court costs, as well as any assessment recoupment fee. I’m going to allow him four years to pay.
{¶42} “If you cannot pay, I will allow you to do community work service through the аdult probation department of up to 40 hours a week at $10.00 per hour until paid in full.
{¶43} “Your court costs are currently $310.00, so to work this off you have to do 61 hours of community work service hours through the adult probation department.”
{¶44} In its sentencing entry the court likewise states that it is ordering Fulton to pay “the indigent assessment and recoupment fee.” It does not reference or explain the basis for this fee at the hearing or in its entry.
{¶45} Thus, as Fulton argues, it is unclear what the court was ordering him to pay whеn it stated that he was to pay “an assessment recoupment fee.” And although not included at the sentencing hearing or in its entry, a notation on the transcript of the docket states the “indigent defense recoupment fee (common pleas)” assessed against Fulton is $75.
{¶47}
{¶48} “(A) Counsel appointed to a case or selected by an indigent person under division (E) of section 120.16 or division (E) of section 120.26 of the Revised Code, or otherwise appointed by the court, * * * shall be paid for their services by the county * * *.
{¶49} “* * *
{¶50} “(D) The fees and expenses approved by the court under this section shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay. Pursuant to seсtion 120.04 of the Revised Code, the county shall pay to the state public defender a percentage of the payment received from the person in an amount proportionate to the percentage of the costs of the person‘s case that were paid to the county by the state public defender pursuant to this section. The money paid to the state public defender shall be credited to the client payment fund created pursuant to division (B)(5) оf section 120.04 of the Revised Code.” (Emphasis added).
{¶52} When statutory language is unambiguous and definite, we apply it as written. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶8. A plain reading of
{¶53}
{¶54} Thus, the sentencing court can determine a defendant’s ability to pay under
{¶55} Thus, to the extent the trial court employed
{¶56} Because it is unclear what the trial court’s authority is for imposing the $75 recoupment assessment fee, we reverse and remand. On remand the trial court must identify the basis for the imposition of this fee and otherwise comply with
{¶57} Fulton’s fifth and final assigned error claims reversible error based on the court’s assessment of a $300 fine and the $75 recoupment assessment fee without making a finding regarding his ability to pay. Fulton claims the court acted contrary to law by failing to make findings as to his ability to pay consistent with
{¶58}
{¶59} The trial court likewise does not have to explicitly state that it considered the defendant’s ability to pay a fine; its consideration may be inferred from the record. State v. Taylor, 11th Dist. Portage No. 2011-P-0090, 2012-Ohiо-3890, 974 N.E.2d 175, ¶ 47, citing State v. McNaughton, 11th Dist. Lake No. 2011-L-083, 2012-Ohio-1271, 2012
{¶60} Moreover, there is a split in authority as to whether an affirmative finding regarding the defendant’s ability to pay is required under
{¶61} However, the statute does not require such a finding, only consideration. Ohio courts have consistently held that a sentencing court is only required to makе findings when the applicable statutes require findings. For example, the failure to make the required findings to impose consecutive sentences in
{¶62} However, when a statute states that a sentencing court “shall consider” something, that is all that is required. See State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988) (finding that a silent record raises the presumption that a trial court considered the sentencing factors); State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992) (“The burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria.”); State v. Johnson, 11th Dist. Lake No. 2018-L-001, 2018-Ohio-3968, ¶ 19 (holding that the trial court’s statement that it considered the purposes and principles of felony sentencing in
{¶63} Thus, a trial court is not required to find that an оffender has the ability to pay before employing
{¶64} Here, the trial court does not indicate whether it considered аny presentence investigation report. And there is likewise no PSI in the record. Notwithstanding, as showing his ability to pay, the state establishes Fulton as relatively young, 27 years old at the time of sentencing, and that he was sentenced to 18 months in prison. Thus, there was some information before the court for it to consider Fulton’s future ability to pay the fine and fee totaling $375, consistent with
{¶65} Accordingly, his fifth assigned error lacks merit.
{¶66} The trial court’s decision is affirmed in part, reversed in part, and remanded. On remand, the trial court must identify its authority for the imposition of the $75 indigent assessment and recoupment fee and how the same will be collected.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.