STATE OF OHIO v. JOHN C. LEDBETTER
No. 104077
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 12, 2017
[Cite as State v. Ledbetter, 2017-Ohio-89.]
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Laster Mays, J.
STATE OF OHIO, PLAINTIFF-APPELLEE vs. JOHN C. LEDBETTER, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-15-594924-A
RELEASED AND JOURNALIZED: January 12, 2017
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Lon‘Cherie’ Billingsley
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Appellant, John C. Ledbetter, appeals his sentences for drug trafficking, possession of criminal tools, and child endangerment arguing they are contrary to law and the court erred in imposing fines and costs. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{2} Cleveland police officers from the first district police station noticed activity indicative of drug trafficking at a house across the street from the police station. Officers conducted surveillance from the roof of the police station and then arranged a controlled buy of oxycodone from appellant at the house. Police then executed a search warrant and discovered a large amount of oxycodone, marijuana, guns, and money in various locations throughout the home. Also present in the home at the time of the buy and search was a 12-year-old child. Appellant and his fiancée were then arrested.
{3} On the day of trial, appellant agreed to accept a plea deal offered by the state. The plea agreement called for appellant to enter guilty pleas to one count of drug trafficking, a fourth-degree felony violation of
{4} After the state and the court explained that there would be a minimum prison term of at least three years, appellant requested additional time to consider the deal. The court granted appellant a recess to consult with his attorney. After recess, appellant indicated he wished to move forward with the plea deal.
{5} The court then engaged appellant in a thorough plea colloquy where it explained appellant‘s rights pursuant to Crim.R. 11. The court accepted appellant‘s guilty pleas, and set the matter for sentencing after ordering a presentence investigation report and court supervised release eligibility report.
{6} A sentencing hearing commenced on September 10, 2015. There, the court heard arguments on the merger of allied offenses and determined that each count of drug trafficking should merge. The state elected to have appellant sentenced on the second-degree felony count. Appellant asked the court for the minimum sanction of three years imprisonment and to suspend the costs and fines due to his indigency. The court imposed a four-year prison sentence consisting of a three-year sentence for drug trafficking to be served consecutive to the one-year firearm specification. The court also imposed a mandatory $7,500 fine and court costs.
{7} Appellant then filed the instant appeal assigning two errors for review:
- The trial court erred by imposing a greater than minimum sentence and the four year aggregate prison sentence is contrary to law.
- The trial court erred by imposing fines and costs in violation of appellant‘s Fifth and Sixth Amendment rights because appellant is indigent.
A. Length of Sentence
{8}
{9}
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:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of
section 2929.13 , division (B)(2)(e) or (C)(4) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{10} Clear and convincing evidence “is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
{11} Further, a trial court does not need to make any specific findings regarding the factors set forth in
{12} When imposing sentence, the following exchange occurred between the court and appellant:
THE COURT: The overall purpose is to punish the offender and protect the public from future crime by the offender and others using the minimum sanctions that the Court determines accomplishes those purposes without imposing an unnecessary burden on [s]tate or local [g]overnment resources.
The Court must, and I have considered the need for incapacitation, deterrence, rehabilitation, and restitution. I‘m trying to fashion a sentence that‘s fair to you, but doesn‘t demean the seriousness of your conduct and its impact on the citizens of this county here.
So here‘s what I find important: Under
2929.12(B) , this was organized drug sales over a few months as you‘ve stated, that culminated with a search warrant being served and this crime uncovered on April 8th ofthis year. Indicators your conduct is less serious, under
2929.12(C) , you do suffer from a bipolar condition and you do have, I believe, legitimate pain issues for which you take medication and you also take psych meds; but, here, you‘ve indicated that the only thing that alleviated your pain or alleviated it best was marijuana, correct?Yes?
[APPELLANT]: Correct.
THE COURT: Marijuana is legal in certain States in the country?
[APPELLANT]: Yes, sir.
THE COURT: You‘re on SSI, your co-defendant is getting benefits. You could have gone anywhere in the country and lived legally, right?
[APPELLANT]: Yes, sir.
THE COURT: Instead you chose to stay in this community, do something illegal with a child and a gun right across from the police station. Could you have been anymore bold and in your face about ignoring the law?
[APPELLANT]: Your Honor, I am remorseful and I apologize for my behavior.
THE COURT: You could have gone somewhere and accomplished a part of your pain relief legally.
[APPELLANT]: If I could do it again, I would just cessate [sic] all activity regarding drugs completely.
THE COURT: You know, at the present time, Oxycodone is an opiate. We have an officer for Cleveland, an officer for the county, and all they do is they go out to heroin or opiate overdose death scenes and then try and build a case against the person that sold. You were a person that was selling; do you understand?
[APPELLANT]: I do.
THE COURT: All right. Indicators you are more likely to reoffend, under
2929.12(D) , you had one prior drug abuse, and I think it was back in ‘94, so that‘s the only indicator that you would be engaged in such - in any criminal conduct. Positive things I could say for you, under2929.12(E) , you admit your involvement, you‘ve been going to your AA meetings. You‘ve done well on court-supervised release. You have a lot of people who have written letters and are supportive of you here in person today. You were getting your college degree. So the conduct here doesn‘t square up with your potential, and that‘s the sad part of many of our cases.So in this matter, on Count 2, drug trafficking with a juvenile spec, forfeitures, and a one-year firearm spec, the Court is imposing a sentence of four years. That‘s one year for the firearm, mandatory, to be served prior to and consecutive to three years for the rather flagrant and blatant drug trafficking. So four years on Count 2. For Count 7, the possession of criminal tools, 12 months also at LCI. That will be concurrent. For the misdemeanor, the endangering children, six months in the county jail, that‘s concurrent.
For Count 2, I am imposing a mandatory minimum fine of $7,500 plus Court costs. If you‘re unable to pay the court costs, in the future you may be required to do court community work service. Is that clear?
[APPELLANT]: Yes, Your Honor.
* * *
THE COURT: I did take into consideration the positive things that were said about you, and really there were a lot of accolades, but this was wrong.
{13} The trial court clearly considered the required factors under
B. Imposition of Fines and Costs
{14} Appellant also argues the court erred when it imposed a $7,500 fine and court costs when appellant was indigent.
{15} A trial court has discretion when imposing financial sanctions on a defendant, even an indigent one. An appellate court will review the trial court‘s decision for an abuse of that discretion. State v. Schneider, 8th Dist. Cuyahoga No. 96953, 2012-Ohio-1740, ¶ 9, citing State v. Weyand, 7th Dist. Columbiana No. 07-CO-40, 2008-Ohio-6360, ¶ 7. An abuse of discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{16}
[T]he sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense pursuant to division (A)(3) of this section [$7,500]. If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.
{17} Appellant did not file an affidavit of indigency regarding the payment of fines and costs prior to sentencing.
{18} Appellant points to the finding that he was indigent for purposes of
{19} Defendants must file an affidavit of indigency addressing their present and future ability to pay in order for the court to waive fines and costs. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 12. Appellant‘s failure to address these issues severely weakens his assigned error. The court heard that appellant was a high school graduate who was close to obtaining a post-secondary degree. Appellant admitted he engaged in a period of selling drugs for at least six months and was found with a large quantity of cash on hand. Appellant offered nothing to indicate he had a future inability to pay the fine and costs after being released from prison. Therefore, the
III. Conclusion
{20} This court‘s review of sentences does not include separately weighing the factors the trial court considered in arriving at its sentence. It is only when those factors considered are not supported in the record does
{21} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE