State v. JordanState v. Jordan
DECISION AND JUDGMENT
Decided: February 5, 2021
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
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MAYLE, J.
{¶ 1} Appellant, Jerome Jordan, appeals the August 10, 2018 judgment of the Lucas County Court of Common Pleas. As part of his sentence following his conviction on six counts of robbery, Jordan was ordered to pay restitution to his victims and to pay all associated costs. For the reasons that follow, we affirm, in part, and reverse, in part, the trial court‘s judgment.
{¶ 2} On December 11, 2017, Jordan was indicted on 11 counts of aggravated robbery in violation of
{¶ 3} On July 11, 2018, Jordan appeared for a change of plea hearing. Through an agreement with the state, Jordan entered a guilty plea pursuant North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), to six counts of robbery in violation of
{¶ 4} On August 8, 2018, the trial court sentenced Jordan to a three-year prison term on each of the first four counts of robbery and to a two-year prison term on the two remaining counts. The trial court ordered him to serve all prison terms consecutively for an aggregate prison term of 16 years. The trial court also ordered Jordan to pay a total of $4,961.05 in restitution to the victims, and to pay “the cost of prosecution.” The trial court dismissed the remaining counts at the state‘s request and its judgment entry was journalized the following day. Jordan failed to file an appeal within thirty days of the judgment as required by
- The trial court abused its discretion when it ordered restitution at sentencing without considering appellant‘s ability to pay, pursuant to
R.C. 2929.19(B)(5) . - The trial court abused its discretion when it found appellant had, or reasonably was expected to have, the ability to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution in the judgment entry, but failed to impose such costs at sentencing, without finding that appellant had the ability to pay.
II. Law and Analysis
A. Appellant waived review of the trial court‘s order to pay restitution
{¶ 6} In his first assignment of error, Jordan argues that the trial court abused its discretion when it failed to consider his ability to pay before it ordered him to pay a total of $4,961.05 in restitution to the robbery victims.
{¶ 8}
{¶ 10} But, Jordan is not challenging the amount of restitution that the trial court imposed. Rather, he is challenging the trial court‘s imposition of any restitution without first considering his ability to pay that restitution. In Coburn, we stated “[u]nlike the amount of restitution, which we previously determined was improperly imposed, the overall agreement to pay some sort of restitution at all was included in and considered by appellant before entering his plea. * * * Therefore, we conclude the trial court did not err in accepting appellant‘s plea agreement to pay restitution to the victim without determining his ability to pay.” Coburn at ¶ 23 (emphasis sic), see also State v. Kurth, 6th Dist. Lucas Nos. L-15-1238, L-15-1239, 2016-Ohio-7698, ¶ 10-12 (holding that the trial court‘s failure to consider a defendant‘s ability to pay an amount of restitution unknown at the time of their plea but ascertained and imposed at the sentencing hearing without objection was not error). Accordingly, a defendant that agrees to pay restitution in a plea agreement cannot challenge, on appeal, the trial court‘s failure to consider his or her ability to pay before imposing restitution—even if the actual amount of restitution was not specified in the plea agreement.
B. The trial court improperly imposed the costs of confinement and assigned counsel fees.
{¶ 12} In his second assignment of error, Jordan argues that the trial court abused its discretion by imposing the costs of confinement, attorney fees, and costs of prosecution in its judgment entry without making such findings at sentencing or considering his current or future ability to pay such costs.
{¶ 13} As an initial matter, appellant cites the incorrect standard of review. We review the imposition of court costs under
{¶ 14} At the sentencing hearing, the trial court ordered Jordan to pay “the costs of prosecution” but did not reference the costs of confinement, attorney fees, or costs of prosecution. In its sentencing entry, however, the trial court stated that it found Jordan “to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision,1 confinement, assigned counsel, and prosecution as
{¶ 15} We must first consider whether the costs imposed are mandatory or discretionary. Id. at ¶ 24. With regard to the costs of prosecution,
{¶ 16} The costs of confinement and assigned counsel, however, are not mandatory and “are premised on a finding of a defendant‘s present or future ability to pay.” State v. Seals, 6th Dist. Lucas No. L-17-1177, 2018-Ohio-2028, ¶ 14, citing State v. Johnson, 6th Dist. Lucas No. L-16-1165, 2017-Ohio-8206, ¶ 24. To impose these costs, the trial court must affirmatively find that the defendant has, or reasonably may be expected to have, the ability to pay. State v. Grey, 6th Dist. Lucas No. L-15-1072, 2015-Ohio-5021, ¶ 21. Such a finding need not be made at a formal hearing, but the record must contain some evidence that the court considered the defendant‘s ability to pay. Seals at ¶ 14, citing State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919, ¶ 13. When the record on appeal contains no evidence reflecting the trial court‘s consideration of present or future ability to pay these costs—such as consideration of
{¶ 17} Here, the trial court did not make any finding regarding Jordan‘s ability to pay the costs of confinement and assigned counsel at his sentencing hearing. Further, the trial court failed to address any evidence of Jordan‘s ability to pay these costs during the underlying proceedings. Therefore, Jordan‘s second assignment of error is found well-taken, in part, and we vacate the award of costs of confinement and assigned counsel.
III. Conclusion
{¶ 18} We find Jordan‘s first assignment of error not well-taken. We find Jordan‘s second assignment of error not well-taken as to the trial court‘s imposition of the mandatory costs of prosecution. We find Jordan‘s second assignment of error well-taken as to the non-mandatory costs of confinement and appointed counsel. We therefore vacate the trial court‘s award of these non-mandatory costs. The mandatory costs of prosecution are not vacated by this decision. We affirm the remainder of the August 10, 2018 judgment of the Lucas County Court of Common Pleas. Jordan and the state are ordered to share the costs of this appeal pursuant to
Judgment affirmed, in part, and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, 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.supremecourt.ohio.gov/ROD/docs/.