STATE OF OHIO v. DALE PETERS
No. 108068
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 31, 2019
[Cite as State v. Peters, 2019-Ohio-4461.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-622890-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 31, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Brian Radigan and Kerry A. Sowul, Assistant Prosecuting Attorneys, for appellee.
Dworken & Bernstein Co., L.P.A., and Jerome M. Emoff, for appellant.
{1} Defendant-appellant, Dale Peters, appeals his sentence. He raises two assignments of error for our review:
- When an indigent [defendant] is sentenced to die in prison, a maximum fine is excessive.
- The trial court failed to comply with
R.C. 2929.14(C)(4) .
{2} Finding no merit to his assignments of error, we affirm.
Procedural History and Factual Background
{3} On November 14, 2017, a Cuyahoga County Grand Jury indicted Peters on 11 counts: one count of aggravated murder in violation of
{5} The trial court found Peters not guilty of aggravated murder in violation of
{6} At sentencing, the trial court found that the counts for aggravated murder, aggravated burglary, aggravated robbery, kidnapping, and murder were allied offenses and merged for sentencing purposes. The state elected to have the trial court sentence Peters for the aggravated murder count. The trial court sentenced Peters as follows:
Aggravated Murder: Life term of imprisonment without the possibility of parole; $20,000 fine
Felonious Assault: 8 years; $15,000 fine
Violating a Protection Order: 36 months; $10,000 fine
Grand Theft: 18 months; $5,000 fine
Tampering with Evidence: 36 months; $10,000 fine
{7} The trial court ordered that all of the sentences (including the fines) run consecutive to one another and advised Peters of postrelease control. It also ordered Peters to pay for the costs of prosecution. Peters did not file an affidavit of indigency prior to sentencing.
{8} At sentencing, Peters‘s counsel orally moved the court to declare Peters indigent, which the trial court did in its sentencing journal entry.
{9} It is from this judgment that Peters now appeals.
A. Fines
{10} In his first assignment of error, Peters argues that the trial court‘s imposition of $60,000 in fines was unconstitutionally excessive because he was indigent and is serving a life sentence without the possibility of parole.
{11} The language in the Eighth Amendment to the U.S. Constitution and the Ohio Constitution are identical and state, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The U.S. Supreme Court recently held that the Eighth Amendment to the U.S. Constitution‘s protection against excessive fines is also incorporated by and applicable to the states under the Fourteenth Amendment‘s Due Process Clause. See Timbs v. Indiana, 586 U.S. ___, 139 S.Ct. 682, 203 L.Ed.2d 11 (2019).
{12} A trial court may impose a fine upon a defendant even if it finds the defendant is indigent. See State v. Price, 8th Dist. Cuyahoga No. 100981, 2015-Ohio-411, ¶ 63 (“[T]he fact that Price was found indigent for purposes of court-appointed counsel, and the trial court expressly found him indigent at sentencing, does not preclude the trial court from imposing the fine upon defendant.“).
{13} Under
- For a felony of the first degree, not more than twenty thousand dollars;
- For a felony of the second degree, not more than fifteen thousand dollars;
For a felony of the third degree, not more than ten thousand dollars; - For a felony of the fourth degree, not more than five thousand dollars[.]
{14} Under
{15} We review a trial court‘s imposition of fines under an abuse of discretion standard. State v. Allen, 8th Dist. Cuyahoga No. 96952, 2012-Ohio-1193, ¶ 9; State v. Sekic, 8th Dist. Cuyahoga No. 95633, 2011-Ohio-3978, ¶ 30. An abuse of discretion means that the trial court‘s decision was arbitrary, capricious, or unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{16} However, because Peters did not object to the fines, he waived all but plain error. State v. Hall, 8th Dist. Cuyahoga No. 90366, 2009-Ohio-462, ¶ 56. “Plain error exists only if ‘but for the error, the outcome of the trial clearly would have been otherwise, and is applied under exceptional circumstances and only to prevent a manifest miscarriage of justice.‘” State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61, quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
{17} Foremost, we are unable to review the $20,000 fine imposed for Peters‘s aggravated murder conviction. “There is no constitutional right to appellate review of a criminal sentence, so ‘the only right to appeal is the one provided by statute.‘” State v. Campbell, 8th Dist. Cuyahoga No. 103982, 2016-Ohio-7613, ¶ 14, quoting State v. Akins, 8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023.
{18} Turning to the remaining $40,000 in fines, we have examined whether a trial court considered a defendant‘s present and future ability to pay a fine on a number of occasions. See State v. Barker, 8th Dist. Cuyahoga No. 93574, 2010-Ohio-4480, ¶ 13 (affirming the trial court‘s imposition of a fine because the defendant was sentenced to three years in prison and the trial court reviewed the defendant‘s presentence-investigation report); State v. Andera, 8th Dist. Cuyahoga No. 92306, 2010-Ohio-3304, ¶ 53 (affirming the trial court‘s imposition of a fine because the defendant was sentenced to 15 years in prison and had 10 years of employment experience).
{19} Similarly, in State v. Bernadine, 11th Dist. Portage No. 2010-P-0056, 2011-Ohio-4023, the court upheld the trial court‘s imposition of a mandatory fine, stating:
[T]here is no specific indication in either the transcript of the sentencing hearing or in the sentencing Judgment Entry that the trial court considered Bernadine‘s present and future ability to pay the fines and restitution ordered by the court. However, the trial court did indicate in its Judgment Entry that it reviewed the PSI. The PSI included information regarding Bernadine‘s age and physical health. In addition, it included information about her current employment and the amount of money she makes monthly. The PSI also included information about her educational background, which would show her ability to obtain future employment. All of these factors were relevant and sufficient for the court to consider Bernadine‘s present and future
ability to pay the fine and restitution, especially when reviewing the court‘s judgment under the plain error standard.
{20} Based upon our review of the record, we can infer that the trial court considered Peters‘s present and future ability to pay the $40,000 in fines before imposing them. Like Bernadine and Barker, the record shows that the trial court reviewed Peters‘s presentence-investigation report, which contained Peters‘s education information (he graduated from high school) and work history (he worked for American Livery Services “pick[ing] up the deceased” from July 2010 until October 2017, which was one month before he was arrested for the charges in the instant case, making $55,000 per year). While Peters was sentenced to life in prison without the possibility of parole, the presentence-investigation report documented his seven-year work history, during which he made a significant salary and from which he can possibly pay the fines imposed.
{21} Additionally, Peters did not file an affidavit of indigency or object to the trial court‘s imposition of fines. Peters had retained counsel for trial, and it was only after sentencing that his trial counsel asked the court to declare him indigent for purposes of appeal. He also did not provide any evidence or argument that he was unable to pay the fines imposed by the trial court.
{22} Further, none of the fines that the trial court imposed were contrary to law because they all were the maximum allowed under
{23} As a result, while the fines are substantial, we find that the trial court did not abuse its discretion or commit plain error, and we find the trial court considered Peters‘s present and future ability to pay the $40,000 in fines connected to Peters‘s convictions for felonious assault, violating a protection order, grand theft, and tampering with evidence and overrule Peters‘s first assignment of error to that extent.
{24} Peters also argues, albeit in a single sentence within his assignment of error, that the trial court‘s imposition of costs of the prosecution was also constitutionally excessive. ”
{26} However, the General Assembly enacted Am.Sub.H.B. No. 247, effective March 22, 2013, amending
{27} Turning to whether the trial court‘s imposition of costs was constitutionally excessive, the Ohio Supreme Court has previously rejected an argument that imposing costs violates a defendant‘s Eighth Amendment‘s right against cruel and unusual punishment. In State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1,
pay court costs, nor must it explain its decision, when ruling on a post-conviction motion to vacate, stay, or remit court costs. The Ohio Supreme Court stayed its proceedings on Sibrian, awaiting its decision in State v. Taylor, 2d Dist. Montgomery No. 27539, 2018-Ohio-1649, which was accepted for review on the following proposition of law: A trial court need not consider an inmate‘s present or future ability to pay court costs, or determine whether any exemption statutes prohibit collection from an inmate‘s account, when ruling on a post-conviction motion to vacate, stay, or remit court costs.
{28} Accordingly, we overrule Peters‘s first assignment of error.
B. R.C. 2929.14(C)(4)
{29} In his second assignment of error, Peters argues that the trial court failed to comply with
{30} An appellate court must conduct a meaningful review of the trial court‘s sentencing decision. State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-Ohio-2508, ¶ 6, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892.
{31} A defendant can challenge consecutive sentences on appeal by arguing that the consecutive sentences are contrary to law because the court failed to make the necessary findings under
{32} In Ohio, sentences are presumed to run concurrent to one another unless the trial court makes the required findings under
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, or was under post-release control for a prior offense.
- At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Id. The failure to make the above findings renders the imposition of consecutive sentences contrary to law. State v. Lawson, 8th Dist. Cuyahoga No. 105038, 2017-Ohio-4189, ¶ 9, citing State v. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075.
{34} We have previously held that an appellant‘s assignment of error contesting the imposition of consecutive sentences is moot when that appellant has been sentenced to death or a prison term of life without the possibility of parole and does not challenge his conviction or that portion of his sentence for that conviction on appeal. See Campbell, 8th Dist. Cuyahoga No. 103982, 2016-Ohio-7613, at ¶ 11 (“[T]he sentence of life without the possibility of parole imposed on Campbell does foreclose the possibility of parole — his life sentence will be completed only upon death. When that occurs, the sentences that were ordered to be served consecutive to the life sentence will terminate.“). Therefore, because Peters was sentenced to life imprisonment without the possibility of parole and does not challenge his aggravated murder conviction or that portion of his sentence, his second assignment of error is moot.
{35} Even assuming his assignment of error is not moot, we would still overrule Peters‘s second assignment of error. Peters argues that it is “arguable” as
{36} At the sentencing hearing, the trial court stated:
I don‘t know why you chose to waive your right to a jury trial in this case, but by doing so you spared 14 members of our community the horror of having to look at the photos of your handiwork.
This Court has for 42 years looked at many awful photos, none as awful as what I saw in this case. From babies to adults, I haven‘t seen anything this awful in my career. I am glad that 14 people were spared because I know that the common citizen is not prepared to see such carnage, such willful, such intentional carnage to another human being.
I remember the testimony that you told the police officer * * * [t]hat you had no remorse while you were doing that to her. And then you left, you stole her car, you dumped the TV, made it look like a burglary, left her on the front lawn of her home for the world to see. * * *
There are times I wish I wouldn‘t remember what I hear in this room. Your trial is certainly the one I will most try to forget.
And I will sentence you on each count to the maximum and to the consecutive. [The prosecutor] is absolutely right, you don‘t deserve any hope of getting out of prison alive nor would I want you to do this to some other wonderful, kind-hearted person who extends a hand to help you as [the victim] did.
{37} After setting forth the sentences for each count, the trial court also stated, “And all of these will run consecutive because the crime was so heinous that no one particular sentence would be sufficient, and consecutive sentences will not demean the seriousness of the offense.”
{39} Second, we can discern from the record that the trial court made the requisite findings. The trial court found that concurrent sentences were not appropriate based on Peters‘s severe and appalling acts.
{40} Additionally, the trial court‘s statements at sentencing clearly demonstrate that it found that consecutive sentences were necessary to protect the public and that Peters‘s crimes resulted in great or unusual harm. The trial court stated that it imposed consecutive sentences because it did not “want [him] to do this to some other wonderful, kind-hearted person[.]” The trial court also thoroughly remarked on the gruesome nature of Peters‘s crimes and how it had never seen such an awful crime.
{41} Finally, the trial court also properly incorporated the necessary findings into its sentencing journal entry as required. See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at syllabus.
{42} Therefore, contrary to Peters‘s assertions, we find that the trial court made the necessary findings under
{43} Judgment affirmed.
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 conviction having been affirmed, any bail pending 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.
MARY J. BOYLE, JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
MARY EILEEN KILBANE, A.J., DISSENTS IN PART WITH SEPARATE OPINION
MARY EILEEN KILBANE, A.J., DISSENTING IN PART:
{44} I respectfully dissent in part. I agree with the majority that we lack statutory authority to review Peters‘s $20,000 fine for aggravated murder. I disagree, however, with the majority‘s finding that the trial court‘s imposition of the remaining $40,000 in fines was proper.
{45} The majority infers from the record that the trial court considered Peters‘s present and future ability to pay the $40,000 in fines before imposing them because the trial court reviewed his presentence investigation report. The report documented Peters‘s work history, which indicated that at one time he made $55,000 per year. Based on this limited work history, the majority then infers the
{46} While there are no express factors that must be taken into consideration regarding the offender‘s ability to pay that must be made on the record, the record still must contain some evidence that the court considered the offender‘s ability to pay such a sanction. Sampson, 11th Dist. Lake No. 2007-L-075, 2007-Ohio-7126, at ¶ 14; State v. Jobe, 6th Dist. Lucas No. L-07-1413, 2009-Ohio-4066, ¶ 79, citing State v. Phillips, 6th Dist. Fulton No. F-05-032, 2006-Ohio-4135, citing State v. Lamonds, 6th Dist. Lucas No. L-03-1100, 2005-Ohio-1219 (where the trial court‘s imposition of costs was vacated when there was no evidence in the record supporting the trial court‘s finding that appellant had, or could reasonably in the future be expected to have, the ability to pay the costs). Indeed, this court has stated that “[f]ines should be imposed as punishment upon those with the ability to pay.” State v. McCauley, 8th Dist. Cuyahoga No. 80630, 2003-Ohio-3211, ¶ 17, rev‘d on other grounds, 104 Ohio St.3d 158, 2004-Ohio-5772, 798 N.E.2d 405 (where this court found the fine was improper under
{48} Accordingly, I would sustain the first assignment of error as to the $40,000 in fines.