STATE OF OHIO v. WILLIAM LAMBERT
Appellate Case No. 2015-CA-5
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
December 11, 2015
[Cite as State v. Lambert, 2015-Ohio-5168.]
Trial Court Case No. 2013-CR-810 (Criminal Appeal from Common Pleas Court)
Rendered on the 11th day of December, 2015.
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecutor, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
BRIAN D. BRENNAMAN, Atty. Reg. No. 0088988, 1616 Turner Road, Xenia, Ohio 45385 Attorney for Defendant-Appellant
{1} Defendant-appellant, William Lambert, appeals from the prison sentence he received in the Clark County Court of Common Pleas following his guilty plea to one count of theft. Specifically, Lambert challenges the trial court‘s restitution order, the order taxing court-appointed counsel fees as costs, and the consecutive nature of his six-month prison sentence. For the reasons outlined below, the judgment of the trial court will be affirmed in part and vacated only as to the trial court‘s order taxing the court-appointed counsel fees as costs.
Facts and Course of Proceedings
{2} On November 25, 2013, Lambert was indicted for one count of theft in violation of
{3} Although Lambert initially pled not guilty to the theft charge, he eventually entered into a plea agreement with the State. Thereafter, at the May 28, 2014 plea hearing, Lambert and the State advised the trial court that they had reached a plea agreement, whereby Lambert would plead guilty to the single count of theft in exchange for receiving a six-month prison term that would run consecutive to a 36-month prison sentence he was serving in Montgomery County. The plea agreement also permitted Lambert to obtain judicial release upon him paying $2,425 in restitution.
{4} The trial court indicated that it would not commit to the judicial release portion
{5} The State agreed to tender the offer proposed by the trial court. Lambert, however, continued to negotiate the terms of the agreement in an effort to extend the amount of time in which he would have to pay the restitution. Specifically, Lambert proposed that the sentencing hearing be scheduled three months away, to which the State agreed. Lambert then accepted the revised plea agreement and thereafter pled guilty to the single count of theft. In confirming the plea agreement, the trial court reiterated on the record that if Lambert paid $2,425 in restitution by the sentencing date, the court would impose a six-month concurrent prison sentence, but noted that if Lambert was unable to pay the restitution by the agreed upon deadline, the maximum sentence the court would impose would be a six-month prison sentence consecutive to the Montgomery County sentence.
{6} The sentencing hearing was scheduled to take place three months later on August 29, 2014. On August 22, 2014, Lambert filed a motion requesting a continuance of 90 days to give him more time to acquire the funds to pay the restitution. Before the trial court issued a decision on that motion, Lambert filed a second motion for continuance
{7} Lambert now appeals from his sentence, raising four assignments of error for our review.
First Assignment of Error
{8} Lambert‘s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO PAY RESTITUTION WITHOUT DETERMINING THE DEFENDANT‘S PRESENT AND FUTURE ABILITY TO PAY.
{9} Under his First Assignment of Error, Lambert contends the trial court erred in ordering him to pay restitution without first considering whether he had the present and future ability to pay. We disagree.
{10} As a preliminary matter, we note that Lambert did not object to the order of restitution, and therefore, he has waived all but plain error. State v. Croom, 2d Dist. Montgomery No. 25094, 2013-Ohio-3377, ¶ 92. “To prevail on a claim of plain error, an appellant ‘must show that an error occurred, that the error was plain, and that but for the error, the outcome of the trial clearly would have been otherwise.’ ” (Emphasis omitted.)
{11}
{12} “Where the trial court fails to make an explicit finding on a defendant‘s relative ability to pay, this court has observed that a trial court‘s consideration of this issue may be ‘inferred from the record under appropriate circumstances.’ ” Philbeck at ¶ 27, quoting Parker at ¶ 42. In determining whether the trial court considered the offender‘s future ability to pay, we have considered information obtained by the trial court at the offender‘s plea hearing. See, e.g., State v. Lewis, 2d Dist. Greene No. 2011-CA-75, 2012-Ohio-4858, ¶ 10.
{13} In this case, while the trial court did not discuss Lambert‘s present and future ability to pay restitution during the sentencing hearing, we can infer from other parts of the record that the required consideration was in fact made. Specifically, the trial court and Lambert had the following discussion at the plea hearing:
COURT: Do you have your own business?
LAMBERT: Yes, sir.
* * *
COURT: Do you have a reasonable likelihood that you‘re going to be able to pay this restitution soon?
LAMBERT: Well, my car is paid for: I could sell that. I‘ve got other assets. I‘ve got tools and equipment from, you know, over 26 years in the business I have got a lot of stuff that I‘ve had my partner—That I did work for Dayton Metropolitan Housing, but he‘s got all my stuff. I got a lawsuit pending right now with Jeff Slyman out of Dayton, Ohio, for this accident where I tore my shoulder. They offered a settlement now. It‘s not enough in his opinion. I mean, I can sign off on it now and they can send a check and I think their offer was around $9,000. He takes a third of it, and I can pay this off now, but obviously, he doesn‘t want to do that because it doesn‘t even cover the cost of the repair of the injury to my shoulder. I got people I can borrow from and probably have something written up with Jeff that says when he gets the money, that they get their money off the top, so there is—I can‘t do anything here because it‘s $10 a call for—or $15 a call for a ten minute call, but like I said I already made an effort and had Dale get all my stuff, my equipment, everything. My car‘s parked in my son‘s mother‘s
garage. It‘s a Cadillac STS. It‘s paid for. So I mean, I do have the potential to pay this back.
Plea Trans. (May 28, 2014), p. 12, 14-15.
{14} Based on the foregoing exchange, we find that it can be inferred from the record that the trial court considered Lambert‘s present and future ability to pay before it ordered him to pay restitution as required by
{15} Lambert‘s First Assignment of Error is overruled.
Second Assignment of Error
{16} Lambert‘s Second Assignment of Error is as follows:
THE TRIAL COURT ERRED WHEN IT ORDERED DEFENDANT TO PAY COSTS [FOR HIS] COURT-APPOINTED ATTORNEY IN VIOLATION OF HIS DUE PROCESS RIGHTS AND IN VIOLATION OF
R.C. 2941.51(D) .
{17} Under his Second Assignment of Error, Lambert argues that the trial court committed plain error in ordering him to pay court-appointed counsel costs as part of his sentence. We agree.
{18} As this court has stated previously, ”
{19} The State, however, relies on
{20} At the sentencing hearing, the trial court did not mention court-appointed counsel fees; however, in the judgment entry of conviction and sentence, the trial court ordered the court-appointed counsel fees to be taxed as costs. In light of the language in
{21} Lambert‘s Second Assignment of Error is sustained.
{22} For purposes of convenience we will address Lambert‘s Third and Fourth Assignments of Error together. They are as follows:
III. THE TRIAL COURT ERRED BY SENTENCING THE DEFENDANT TO CONSECUTIVE SENTENCES AS A CONSECUTIVE SENTENCE IN THIS CASE IS IMPRISONMENT FOR A DEBT AND VIOLATES THE DEFENDANT‘S RIGHT TO EQUAL PROTECTION UNDER THE LAW.
IV. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO CONSECUTIVE SENTENCES AS THE RECORD DOES NOT SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES IN ACCORDANCE WITH
R.C. 2929.11 AND2929.12 .
{23} Under his Third and Fourth Assignments of error, Lambert challenges the consecutive nature of his six-month prison sentence. Lambert first contends that his consecutive sentence is contrary to law because it violated his constitutional right to equal protection under the law. In support of this claim, Lambert argues that he would have received a more favorable sentence if he had been able to pay the $2,425 in restitution prior to sentencing, and thus, claims his economic status impacted the sentence he received. Lambert also contends that consecutive sentences were not supported by the purposes and principles of sentencing set forth in
{24} This court applies
{25} In the present case,
{26} In addition, Lambert‘s sentence is authorized by law because it comports with all mandatory sentencing provisions. Specifically, a six-month prison sentence is within the authorized statutory range for a fifth-degree felony such as Lambert‘s theft offense. See
{27} The record also reveals that at the sentencing hearing and in the sentencing entry, the trial court made the findings required by
{28} We further note that even if we were to find some error in the trial court‘s sentence, which we do not, Lambert‘s constitutional challenge to the consecutive sentence would be barred under the doctrine of invited error. “Under the invited-error doctrine, a party is not entitled to take advantage of an error that he himself invited or induced the trial court to make.” (Emphasis omitted.) State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 243, citing State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27. The doctrine applies to cases in which a defendant entered into a plea agreement covering the alleged error claimed on appeal. See, e.g., State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10 (holding a defendant cannot take advantage of an error that he invited through the plea negotiations); State v. Marcum, 4th Dist. Hocking Nos. 12CA22, 12CA26, 2013-Ohio-2189, ¶ 10 (“[the invited-error] doctrine applies to errors arising from a negotiated plea agreement“).
{30} Lambert‘s Third and Fourth Assignments of Error are overruled.
Conclusion
{31} The portion of the trial court‘s judgment requiring Lambert to pay court-appointed counsel fees as costs will be vacated. In all other respects, the judgment of the trial court will be affirmed.
FAIN, J., concurs.
DONOVAN, J., dissenting:
{32} In my view, the majority affirms a decision of the lower court which is the functional equivalent of a return to debtor‘s prison. Increasing a prison term by a six-month consecutive term because Lambert is indigent and unable to make restitution is fundamentally wrong in its reasoning process and is constitutionally repugnant. It is also dangerous in its implication under the equal protection and due process clauses of the Ohio and U.S. Constitutions. “Due process and equal protection principles converge” in the analysis of cases where a defendant may have been improperly sentenced due to the defendant‘s poverty. Bearden v. Georgia, 461 U.S. 660, 665, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).
{33} “The treatment of indigent criminal defendants has for more than a half-
{34} Furthermore, by characterizing it as invited error, the majority ignores the constitutional issues which arise when the judge himself “negotiates” with an indigent criminal defendant for a reduced sentence subject to payment of full restitution prior to disposition rather than considering the purposes and principles of sentencing as
{35} I recognize that the State has an interest in making the victim whole by encouraging the payment of restitution, and such a fact may be considered in the court‘s exercise of discretion. However, the opposite is not true, Lambert did not earn an
{36} Significantly, not noted by the majority, is the fact that Lambert had been in prison for over nine months at the time of sentencing and prior thereto, in a local jail in lieu of bond. This ignores the fact that “a defendant who is unable to make bail and is jailed will have very few opportunities to make restitution.” Zhong, Judging Remorse, 39 N.Y.U. Rev. L. & Soc. Change 133, 166 (2015). Furthermore, the United States Supreme Court has long emphasized that “there can be no equal justice when the kind of trial (sentence) a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
{37} Although Lambert unrealistically thought he might be able to sell a car or tools or settle a civil suit2 while serving prison time, there is absolutely no showing this was anything other than wishful thinking. Additionally, there is no evidence Lambert was anything other than indigent. It is important to note that just prior to his plea, Lambert requested in a written motion that his lawyer be discharged because he was inaccessible to him and had provided virtually no assistance. Lambert also noted that the cost of phone calls from the prison was cost prohibitive at a rate of $10.00 - $15.00 per call. These facts illustrate just how difficult it is to somehow access and sell personal property
{38} Justice does not fare well when poverty leads to an additional six-month prison term. I would reverse and modify pursuant to our authority under
Copies mailed to:
Ryan A. Saunders
Brian D. Brennaman
Hon. Douglas M. Rastatter