STATE OF OHIO, Plaintiff-Appellee, - vs - ERIC R. SCHILLINGER, Defendant-Appellant.
CASE NO. 2018-P-0014
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
September 24, 2018
2018-Ohio-3966
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 0934. Judgment: Affirmed.
Neil P. Agarwal, 3732 Fishcreek Road, #288, Stow, OH 44224 (For Defendant-Appellant).
OPINION
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Eric R. Schillinger, appeals from the judgment of the Portage County Court of Common Pleas sentencing him to five years imprisonment after accepting his plea of guilty on charges of felonious assault and failure to comply with order or signal of police officer. We affirm.
{¶2} On October 26, 2017, appellant was indicted on one count of felonious assault, in violation of
{¶3} Appellant ultimately changed his plea and agreed to plead guilty to an amended Count One, reducing the felonious assault charge to a felony in the second degree; and guilty to the “failure to comply” count. A plea hearing was held, and after conducting a
{¶4} The trial court accepted a jointly-recommended sentence and ordered appellant to serve consecutive prison terms of two years on Count One and thirty-six months on Count Two for an aggregate prison term of five years. The court additionally imposed a $300 fine, court costs, an assessment and recoupment fee that provided appellant a period of ten years to pay his fine, and notified him that post-release control was mandatory for three years.
{¶5} Appellant now appeals alleging five assignments of error. Appellant‘s first assignment of error provides:
{¶6} “The trial court committed reversible and plain error in accepting the defendant‘s guilty plea without strictly complying with the requirements of
{¶7} Under his first assignment of error, appellant contends the trial court erred when it accepted his guilty plea without inquiring into his individual ability to understand the consequences of entering into the guilty plea during the
{¶9} Pursuant to
{¶10} During the plea hearing, the trial court specifically and literally advised appellant of each constitutional right. Moreover, the court expressly asked appellant if he understood his rights, the nature of what he was waiving, and the ultimate effect of the guilty plea he was entering. Further, during the colloquy with the judge, appellant specifically acknowledged that he understood his plea operated as a complete
{¶11} Appellant‘s first assignment of error lacks merit.
{¶12} Appellant‘s second assignment of error provides:
{¶13} “The trial court committed reversible and plain error when it sentenced the defendant without properly giving him all the notifications concerning post-release control. (1/22/18, T.p. 7, T.d. 29).”
{¶14} Appellant contends the trial court failed to inform of all necessary notifications concerning post-release control, therefore committed plain error. In particular, appellant argues the court erred in failing to notify him that he would be subject to consecutive prison terms, pursuant to
{¶15} The Supreme Court of Ohio has defined “plain error” in State v. Barnes, 94 Ohio St.3d 21, 27 (2002), as follows:
{¶16} “Under
{¶17} Recently, in State v. Gordon, ___ Ohio St.3d ___, 2018-Ohio-1975, the Ohio Supreme Court held:
{¶18} Applying the plain language of
R.C. 2929.19(B)(2)(e) , we hold that the statute does not require that a trial court notify an offender at his initial sentencing hearing of the penalty provisions contained inR.C. 2929.141(A)(1) and (2) (provisions that apply only when an offender is convicted of committing a new felony while serving a period of postrelease control). Gordon, supra, at ¶2.
{¶19} Appellant‘s argument is therefore unavailing.
{¶20} In interest of a comprehensive analysis, we shall nevertheless consider whether the court properly imposed appellant‘s post-release control. At the sentencing hearing, the trial court made the following statements regarding post-release control:
{¶21} You will be subject to post-release control pursuant to
Ohio Revised Code 2967.28 . If you violate the terms of your post-release control, you could receive an additional prison term not to exceed 50 percent of your original prison term. Post-release control period is a mandatory period of three years and your potential penalty could be up to two-and-a-half yours. Do you understand that?
{¶22} Appellant responded in the affirmative.
{¶23} The court‘s sentencing order also provided:
{¶24} The court thereupon notified the Defendant that after release from prison, the defendant will be supervised under (mandatory) post release control
R.C. 2967.28 for three years and that if the defendant violates the terms of the post-release control the defendant could receive an additional prison term not to exceed 50 percent of his original prison term.
{¶26} [T]o validly impose post-release control when the court orally provides all the required advisements at the sentencing hearing, the sentencing entry must contain the following information: (1) whether post-release control is discretionary or mandatory, (2) the duration of the post-release-control period, and (3) a statement to the effect that the Adult Parole Authority (“APA“) will administer the post-release control pursuant to
R.C. 2967.28 and that any violation by the offender of the conditions of post-release control will subject the offender to the consequences set forth in that statute.
{¶27} In this case, the post-release control notification was statutorily compliant as the trial court verbally advised appellant of post-release control and its effects and incorporated all the necessary advisements into the order.
{¶28} Appellant‘s second assignments of error lacks merit.
{¶29} For his third assignment of error, appellant asserts the following:
{¶30} “The trial court committed reversible and plain error at the sentencing hearing by failing to comply with
{¶31} Appellant argues that the court committed reversible error at his sentencing hearing by not informing him that he would not be permitted to ingest or be injected with a drug of abuse and that he would also be subject to random drug tests, pursuant to
{¶32} Under
{¶33} Require that the offender not ingest or be injected with a drug of abuse and submit to random drug testing as provided in section
341.26 ,753.33 , or5120.63 of the Revised Code, whichever is applicable to the offender who is serving a prison term, and require that the results of the drug test administered under any of those sections indicate that the offender did not ingest or was not injected with a drug of abuse.
{¶35} Finally, the Ohio General Assembly, via Senate Bill 66, which passed on June 27, 2018, legislatively removed current
{¶36} In light of the foregoing, we conclude the trial court did not err in not informing appellant of the restrictions addressed in
{¶37} Appellant‘s third assignment of error is without merit.
{¶38} For his fourth and fifth assignments of error, appellant asserts respectively:
{¶39} “The Trial Court committed reversible and plain error by ordering the defendant to pay an ‘assessment and recoupment fee.’ (1/22/18, T.p. 6, T.d. 29).”
{¶41} Under appellant‘s fourth assignment of error, he asserts that the trial court committed plain error by ordering him to pay an “assessment and recoupment” fee. Specifically, he argues that there is no statutory authority permitting the trial court to order him to pay those fees. In his fifth assignment of error, appellant argues that, in assessing fines, a recoupment fee, and court costs, the court committed reversible error by not considering his ability to pay those fines and costs.
{¶42} ”
{¶43} At the sentencing hearing, the trial court stated the following:
{¶44} [Appellant will] be assessed a fine of $300.00 and court costs as well as any assessment recoupment fee. I will allow him ten years to pay. If you cannot pay, I will allow you to do community work service through the adult probation department of up to 40 hours a week at $10.00 per hour until paid in full. Your court costs are
currently $260.00, to work this off you have to do 56 community work service hours.
{¶45} Appellant first contends the trial court lacked authority to impose “assessment recoupment fees.” We first note that appellant did not object to the imposition of these fees. We accordingly review this issue for plain error.
{¶46} Although the court expressly stated appellant would be required to pay these fees, the fees are not defined in the record and the court did not specify an amount appellant would be obligated to pay. Similarly, appellant has failed to demonstrate, by reference to the record, that any such assessment or recoupment fees were actually assessed against him. Without more information regarding the nature of the fees and whether a sum certain was assessed, we discern no error.
{¶47} Moreover, the court‘s statements on record demonstrates it considered appellant‘s present and future ability to pay the fee and costs. The court imposed a relatively small fine and afforded appellant a lengthy period of time to pay the same. The court also offered appellant the alternative of “working off” the fine in the event he was unable to pay the sanction. In State v. Chioncio, 11th Dist. Portage No. 2012-P-0057, 2013-Ohio-4296, this court was faced with a similar case. In affirming the trial court‘s imposition of the financial sanction, this court stated:
{¶48} “[T]he $300 fine was relatively minimal, and the trial court gave appellant a reasonable amount of time to work it off through “sweat equity” if necessary. There is no evidence in the record to indicate that appellant is not an able-bodied person capable of physical labor.” Id. at ¶69.
{¶49} The record indicates appellant inquired into taking college classes and there was no indication he was physically unable to engage in a community work
{¶50} Appellant‘s fourth and fifth assignments of error are without merit.
{¶51} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.