2004 Ohio 5937 | Ohio Ct. App. | 2004
{¶ 2} On June 2, 2003, Sanders entered a plea of guilty to one count of engaging in a pattern of corrupt activity, a felony of the second degree in violation of R.C.
{¶ 3} Sanders raises the following assignments of error: "The trial court erred to the prejudice of the defendant-appellant when it imposed restitution despite the indigence of the defendant-appellant."
{¶ 4} A court imposing sentence on a felony offender may require the offender to make restitution "to the victim of the offender's crime * * * in an amount based on the victim's economic loss." R.C.
{¶ 5} "[T]here are no express factors that must be taken into consideration or findings regarding the offender's ability to pay that must be made on the record." State v. Martin,
{¶ 6} An appellate court reviews a felony sentence under a clear and convincing evidence standard of review. R.C.
{¶ 7} Sanders argues that the trial court erred by imposing restitution "without first considering his indigence and without making an affirmative determination of his ability to pay restitution." Sanders maintains that a hearing on this issue was necessary in light of the facts that he had appointed counsel during the pendency of the proceedings against him and that he filed an affidavit of indigency with the court on the day of his sentencing hearing.
{¶ 8} The trial court's August 20, 2003 judgment entry states: "The Court, having determined that the defendant is able to pay a financial sanction of restitution or is likely in the future to be able to pay a financial sanction of restitution, hereby orders that the defendant is to make restitution to [the Lake County Probation Department on behalf of] the victims of the defendant's criminal act, in the amount of Thirty-two Thousand Six Hundred Twenty-six and 00/100 Dollars, the victims' economic losses." The trial court did not explain its reasoning.
{¶ 9} The trial court also stated on the record at the sentencing hearing and in its judgment entry that it considered the pre-sentence investigation (PSI) report. The PSI report states that Sanders has no assets or obligations and considers himself to be in excellent physical health. The report also states that Sanders is a verified high school graduate and that Sanders claims to have completed a correspondence course in business law in 1992. Sanders also indicated in the report that, prior to his arrest in November 2002, he was spending about $400 a day on crack cocaine. Finally, the report states that, from September 1998 to November 2002, Sanders was working fifty to sixty hours a week on commission as a business manager for Auto Outlet in Madison, Ohio.
{¶ 10} We hold that the trial court properly considered Sanders' present and future ability to pay the amount of restitution imposed as stated in its August 20, 2003 judgment entry. The requirement of R.C.
{¶ 11} Moreover, we hold that the record supports the trial court's decision to impose the sanction of restitution. Nothing in the record suggests that Sanders would not be able to work and, therefore, pay restitution after his release from prison. It is well-settled that an offender's indigency and/or need for appointed counsel does not preclude the imposition of a financial sanction. State v. Kelly (2001),
{¶ 12} All that the trial court was required to do in order to impose restitution on Sanders was comply with the requirement of R.C.
{¶ 13} By leave of this court granted on October 14, 2004, Sanders raises the following, supplemental assignment of error: "The trial court erred when it sentenced the defendant-appellant to more than the minimum prison term based upon a finding of factors not found by the jury or admitted by the defendant-appellant in violation of the defendant-appellant's state and federal constitutional rights to trial by jury."
{¶ 14} Under Ohio's sentencing statutes, "if the court is imposing a sentence upon an offender for a felony * * *, the court shall impose the shortest prison term authorized for the offense * * * unless * * * the offender previously had served a prison term * * * [or] [t]he court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender * * *." R.C.
{¶ 15} The range of possible terms of imprisonment for engaging in a pattern of corrupt activity, a second degree felony, is from two to eight years. R.C.
{¶ 16} In Apprendi v. New Jersey (2000),
{¶ 17} Relying on Apprendi and Blakely, Sanders argues that, by imposing a six year sentence, the trial court went beyond the "statutory maximum" for Apprendi purposes. To do so, the court was required to make "additional findings which had not been admitted to by Mr. Sanders nor found by a jury." Therefore, Sanders concludes, the court has violated his constitution rights to trial by jury as set forth by the United States Supreme Court. We disagree.
{¶ 18} Pursuant to R.C.
{¶ 19} The trial court made additional factual findings at the sentencing hearing bearing on the seriousness of Sanders' conduct and the threat of future crime which Sanders posed to the public. Although the United States Supreme Court's holdings inApprendi and Blakely potentially implicate the validity of these findings, we need not consider those issues in disposing of Sanders' present argument. Sanders was never entitled to receive the shortest authorized prison term. R.C.
{¶ 20} Sanders' supplemental assignment of error is without merit.
{¶ 21} The August 20, 2003 judgment entry of the Lake County Court of Common Pleas ordering Sanders to serve a six-year prison term and imposing restitution in the amount of $32,626 is affirmed.
O'Neill, J., Rice, J., concur.