2019-Ohio-3017
Ohio Ct. App. 6th
2019

State of Ohio v. Amy Trimpe

Court of Appeals No. WD-18-048

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

Decided: July 12, 2019

2019-Ohio-3017

MAYLE, J.

Trial Court No. 2015CR0019

DECISION AND JUDGMENT

* * * * *

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

* * * * *

I. Introduction

{¶ 1} Defendant-appellant, Amy Trimpe, appeals the June 7, 2018 judgment entered by the Wood County Court of Common Pleas terminating her intervention in lieu of conviction and sentencing her to four years of community control. For the following reasons we affirm the trial court‘s judgment.

A. Facts and Procedural Background

{¶ 2} On January 22, 2015, Trimpe was indicted on two counts of theft, both felonies of the fifth degree, under R.C. 2913.25(A)(3) and (B)(2).

{¶ 3} At a pretrial conference on March 20, 2015, Trimpe moved for intervention in lieu of conviction pursuant to R.C. 2951.041.1 The trial court set a hearing on Trimpe‘s motion, and ordered an assessment for the purpose of determining Trimpe‘s eligibility for intervention in lieu of conviction and recommendation of an appropriate intervention plan.

{¶ 4} On May 8, 2015, the trial court conducted a hearing on Trimpe‘s motion. The court found that Trimpe was eligible for intervention in lieu of conviction and granted her request. The trial court accepted her guilty plea, but withheld a finding on it, and stayed all criminal proceedings pending Trimpe‘s compliance with the terms of her intervention plan. The trial court placed Trimpe under the control and supervision of the Wood County Adult Probation Department for a period of one year, and ordered her, among other things, to participate in drug and alcohol treatment services, obtain and maintain employment, abstain from the use of all illegal drugs and alcohol (and submit to random screenings to verify compliance with this condition), and pay restitution in the amount of $2,934.39 during her one-year period of intervention supervision. On May 11, 2015, the trial court memorialized its ruling in a judgment entry and order for intervention in lieu of conviction.

{¶ 5} On September 9, 2015, the state filed a petition for an intervention in lieu of conviction violation because Trimpe tested positive for amphetamines, benzodiazepines, and opiates. The court held a hearing on September 25, 2015, at which time Trimpe produced prescriptions for these three substances. The state moved to dismiss its petition. The court dismissed the petition, but noted that the three prescriptions were not from one physician and one pharmacy, as required by her intervention plan, and the court informed Trimpe that she would have to rectify that issue.

{¶ 6} On April 8, 2016, the state filed another petition for an intervention in lieu of conviction violation, this time on the grounds that Trimpe had failed to make any payments toward restitution as of April 6, 2016. The parties appeared for a hearing on the petition on April 29, 2016. Trimpe waived the hearing and admitted to the violation (although she claimed to have paid $100 toward restitution). The court found that she had violated the plan but continued intervention for an additional year to allow her more time to make payment. The court warned her that she had to “make some effort” to satisfy her restitution obligation because “if we have to keep coming back next year at this time, the patience of everyone gets smaller and smaller as we go along.”

{¶ 7} On April 20, 2017, the state filed another petition for intervention in lieu of conviction violation, this time on the grounds that Trimpe had paid only $62.35 towards restitution as if April 19, 2017. The parties appeared for a hearing on May 2, 2017. At that time, Trimpe‘s counsel argued that extenuating circumstances prohibited Trimpe from making restitution over the previous year. Counsel explained that Trimpe was incarcerated in Indiana between May and September of 2016, and therefore was unable to make any payment during that time. Following her release, she was hospitalized for surgeries due to MRSA―which she contracted while incarcerated―and although she had some minimum wage employment, 50 percent of her income was intercepted by the Child Support Enforcement Agency. Counsel further argued that Trimpe had obtained a second job and was pledging to pay restitution going forward. The state agreed to withdraw the petition upon Trimpe‘s agreement to an additional one-year extension of the intervention plan. The court continued intervention for another year, but cautioned Trimpe that “next time will be your third strike and, at that point in time, you‘re going to be convicted of a felony.”

{¶ 8} On April 23, 2018, the state filed another petition for intervention in lieu of conviction violation. The state claimed that Trimpe had paid only $236.30 towards her restitution obligation, with the last payment received in July 2017. On May 1, 2018, the matter proceeded to hearing. The state called Charlie Lopez of the Wood County Adult Probation Department, who confirmed that Trimpe had not been making payments toward restitution. Lopez further testified that restitution was the only aspect of the intervention plan that Trimpe had not yet satisfied.

{¶ 9} Trimpe also testified at the hearing. She stated that although she was employed by Waffle House, her paycheck is subjected to numerous deductions including a garnishment for her child-support obligation. She presented three weekly pay stubs, dated May 11, 18, and 25, 2018, which indicated that she received a net payment of $15.50, $73.08, and $30.08 during those respective pay periods. Trimpe testified that although her income varies by week, these were “typical pay stubs” for her. She stated that she tried to get a second job and “applied to a couple of different [establishments],” but “when they find out my [criminal] record they deny me.” She testified that she lives with her parents and that all of her earnings go towards food.

{¶ 10} At the conclusion of the hearing, the court found that Trimpe was in violation of her intervention plan because she had not made restitution, and the court found her guilty based upon her prior guilty plea. The court continued the matter for a full presentence investigation.

{¶ 11} The parties appeared before the court for a sentencing hearing on June 5, 2018, at which time the court sentenced Trimpe to four years of community control with terms and conditions, including her continued abstinence from drugs or alcohol, as well as payment of the remaining amount of restitution, $2,698.09, and costs of prosecution.

B. Assignments of Error

{¶ 12} On appeal Trimpe claims two assignments of error:

  1. The trial court abused it‘s [sic] discretion in terminating Appellant‘s [sic] Intervention in Lieu of Conviction.
  2. The trial court committed error to the prejudice of Appellant by imposing costs of prosecution without consideration of Appellant‘s [sic] present or future ability to pay.

{¶ 13} We will review each of these assignments of error in turn.

II. Law and Analysis

A. The Trial Court‘s Revocation of Trimpe‘s Intervention in Lieu of Conviction Was Not an Abuse of Discretion.

{¶ 14} Under R.C. 2951.041, certain eligible offenders may request intervention in lieu of conviction, which is a procedure by which the trial court stays all criminal proceedings, orders the offender to comply with the terms and conditions of a specifically-tailored “intervention plan,” and places the offender under the general control and supervision of the county probation department or another comparable agency during the duration of the intervention plan. The terms and conditions of the intervention plan must require the offender, for at least one year, “to abstain from the use of illegal drugs and alcohol, to participate in treatment and recovery support services, and to submit to regular random testing for drug and alcohol use” and may include other terms and conditions including “community service or restitution.” R.C. 2951.041(D). If the offender successfully completes the intervention plan, “the court shall dismiss the proceedings against the offender.” R.C. 2951.041(E). “In enacting R.C. 2951.041, the legislature made a determination that when chemical abuse is the cause or at least a precipitating factor in the commission of a crime, it may be more beneficial to the individual and the community as a whole to treat the cause rather than punish the crime.” State v. Ingram, 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967, quoting State v. Shoaf, 140 Ohio App.3d 75, 77, 746 N.E.2d 674 (10th Dist.2000).

{¶ 15} In this case, Trimpe did not comply with the condition of her intervention plan that required her to pay restitution to the victim and, because of this, the trial court terminated Trimpe‘s intervention, found her guilty of the two theft charges, and sentenced her to four years of community control.

{¶ 16} We review a trial court‘s termination of intervention in lieu of conviction for abuse of discretion. State v. Zepeda, 6th Dist. Wood No. WD-13-003, 2014-Ohio-1311, ¶ 18, citing State v. Lingg, 2d Dist. Greene No. 2011 CA 8, 2011-Ohio-4543, ¶ 11. A reversal under this standard requires more than an error in judgment; instead there must be evidence that the court‘s attitude was unconscionable, unreasonable, or arbitrary. State v. Huckaby, 6th Dist. Wood No. WD-14-028, 2015-Ohio-3302, ¶ 19, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 17} Trimpe argues that the trial court‘s decision to terminate her intervention in lieu of conviction was an abuse of discretion because the trial court misperceived her failure to pay restitution as “a willful act of avoidance” when, in fact, it was “the product of her inability to pay.”

{¶ 18} Under the governing statute, however, if the court finds that “the offender has failed to comply with any [of the] term[s] and condition[s] [of the intervention plan]” it has three available options: it may (1) continue the offender on intervention in lieu of conviction, (2) continue the offender on intervention in lieu of conviction with additional terms, conditions, and sanctions, or (3) enter a finding of guilty and impose an appropriate sanction under R.C. Chapter 2929. R.C. 2951.041(F). The trial court found that Trimpe failed to comply with her obligation to make restitution―which was a specific condition of her intervention plan―on three separate instances. After each of these three instances, the trial court followed a specific course prescribed by R.C. 2951.041(F).

{¶ 19} First, on April 29, 2016, the trial court found that Trimpe had failed to comply with her restitution obligation (after the state alleged that she had made no payments at all), but continued her on intervention for an additional year as permitted by R.C. 2951.041(F). The court cautioned her to “make some effort” to pay because “if we have to keep coming back next year at this time, the patience of everyone gets smaller and smaller as we go along.”

{¶ 20} Second, on May 2, 2017, the trial court found that Trimpe had failed to comply with the restitution obligation (after the state alleged she had paid only $62.35 toward restitution, with the last payment received in March 2016). The trial court chose, once again, to continue her on intervention for an additional year as allowed under R.C. 2951.041(F). The court informed Trimpe, however, that “next time will be your third strike and, at that point in time, you‘re going to be convicted of a felony. * * * If you‘re really serious about [making restitution], then you have an opportunity to show me by making regular monthly payments to your victim that you stole from.”

{¶ 21} Finally, on May 1, 2018, the trial court found that Trimpe had failed to comply with the restitution obligation (after the state alleged she had paid only $236.30 towards her restitution obligation, with the last payment received in July 2017). This third and final time, as promised, the court found her guilty of the theft charges, as permitted by R.C. 2951.041(F).

{¶ 22} We cannot say that the trial court abused its discretion by terminating Trimpe‘s intervention in lieu of conviction. The trial court was well within its authority to terminate Trimpe‘s intervention under R.C. 2951.041(F), which provides that a trial court may terminate intervention in lieu of conviction if the offender “failed to comply with any of [the] terms and conditions [of the intervention plan] * * *.” (Emphasis added.) And, in this case, the trial court had already extended her intervention on two prior instances, each time with a warning to take her obligation seriously by “making some effort” and to demonstrate her commitment “by making regular monthly payments” to the victim. Although Trimpe demonstrated that she had limited funds available to make payment, we cannot find that the trial court abused its discretion by determining that her nearly complete lack of payment―and complete lack of any consistency in making payment during the preceding three-year period―demonstrated that she was not serious about making restitution. Intervention in lieu of conviction is a privilege, not a right. State v. Loe, 6th Dist. Wood No. WD-15-080, 2017-Ohio-994, ¶ 14. We find that the court did not abuse its discretion by revoking Trimpe‘s privilege under the circumstances of this case.

{¶ 23} Trimpe also suggests that the trial court discriminated against her indigent status by revoking her intervention, and violated her due process and equal protection rights under the authority of Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In Bearden, the Supreme Court held that when a trial court is revoking probation for a failure to pay restitution or fines, it is required to:

inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State‘s interest in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay.

Id. at 672-673.

{¶ 24} Bearden, however, is not directly applicable because this case concerns intervention in lieu of conviction―not community control or probation. Under R.C. 2951.041(D), the offender is placed under the supervision of the probation department of the appropriate county “as if the offender was subject to a community control sanction * * *.” (Emphasis added.) Or, in other words, the offender is not actually “subject to a community control sanction” during intervention. Indeed, intervention in lieu of conviction and community control sanctions (also referred to as probation) are very different things. Community control is a “sanction,” defined by R.C. 2929.01(DD) as a penalty that exists “as punishment for the offense.” State v. Ingram, 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967, ¶ 12. A court‘s grant of intervention in lieu of conviction, on the other hand, is not punishment. Rather, it is “an opportunity for first time offenders to receive help with their dependency without the ramification of a felony conviction.” Id. at ¶ 13.

{¶ 25} Regardless, Bearden concerned the circumstances under which a court may revoke probation and impose imprisonment as a sanction for failure to make payments on fines or restitution. Under Bearden, a court may not revoke probation and imprison an offender under such circumstances without an inquiry into the offender‘s ability to pay and, if the offender is unable (as opposed to unwilling) to pay, the court must explore alternatives to incarceration before it may imprison the offender for failing to pay. Id. at 668-669.

{¶ 26} Trimpe was sentenced to community control sanctions―not prison. In that respect, the trial court‘s alternative sanction fully complies with Bearden. Moreover, the record reflects that the trial court considered Trimpe‘s ability to pay and provided multiple opportunities for Trimpe to avoid any sanction whatsoever. Trimpe‘s reliance upon Bearden, therefore, is misplaced.

{¶ 27} For the foregoing reasons, we find that trial court did not abuse its discretion when it revoked Trimpe‘s intervention in lieu of conviction. Trimpe‘s first assignment of error is not well-taken.

B. The Trial Court Properly Imposed Costs of Prosecution.

{¶ 28} In her second assignment of error, Trimpe claims that the trial court improperly imposed costs at sentencing by failing to consider her present or future ability to pay. At the sentencing hearing, the court ordered that Trimpe “pay the court costs for which judgment is awarded to Wood County.” In its sentencing entry, journalized on June 7, 2018, it stated that Trimpe was to “pay the costs of prosecution with judgment and execution awarded.”

{¶ 29} We review felony sentences under R.C. 2953.08(A)(4) and (G)(2) to determine whether or not the imposition of costs by the trial court was contrary to law. State v. Farless, 6th Dist. Lucas Nos. L-15-1060, L-15-1061, 2016-Ohio-1571, ¶ 4. According to R.C. 2947.23(A)(1)(a), “[i]n all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution * * * and render judgment against the defendant for such costs.” The trial court is therefore obligated to impose costs of prosecution without consideration as to the defendant‘s ability to pay such costs. State v. Rhoda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 13; See also State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.

{¶ 30} A review of the trial court‘s record shows that the trial court‘s award of the costs of prosecution was not contrary to law. Trimpe‘s second assignment of error is therefore not well-taken.

III. Conclusion

{¶ 31} In conclusion, Trimpe‘s first and second assignments of error are not well taken. We affirm the June 7, 2018 judgment of the Wood County Court of Common Pleas. Trimpe is ordered to pay the costs of the appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J.

JUDGE

Thomas J. Osowik, J.

JUDGE

Christine E. Mayle, P.J.

CONCUR.

JUDGE

This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

Notes

1
Trimpe also submitted a written motion for intervention in lieu of conviction on March 23, 2015.