STATE OF OHIO v. ROBERTO VELESQUEZ
Court of Appeals No. L-22-1167
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
March 31, 2023
2023-Ohio-1100
Trial Court No. CR0202201153
Decided: March 31, 2023
Julia R. Bates, Lucas County Prosecuting Attorney, and Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
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MAYLE, J.
{¶ 1} Following a plea, the Lucas County Court of Common Pleas sentenced the appellant, Roberto Velesquez, to a total stated minimum term of 10 years in prison with a maximum indefinite term of 12.5 years. The trial court‘s June 28, 2022 judgment entry also imposed various costs. On appeal, Velesquez challenges the imposition of
I. Background and Facts
{¶ 2} On June 15, 2022, Velesquez pleaded no contest to two counts of endangering children in violation of
{¶ 3} After imposing a prison term at the June 27, 2022 sentencing hearing, the trial court stated that Velesquez could “work off [his] court costs while in custody.” It did not expressly impоse or refer to any other fees or costs, nor did it make any finding with respect to Velesquez‘s ability to pay financial sanctions.
{¶ 4} In its June 28, 2022 final judgment, the trial court made the following findings:
Defendаnt found to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement,
and prоsecution as authorized by law. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs. This order of reimbursement is a judgment enforceable pursuant to law by the parties in whose favor it is entered.
{¶ 5} Velesquez appeals his conviction, raising one assignment of error:
Assignment of Error: The court improperly assigned costs of confinement and supervision in the judgment entry of sentencing, but not at the sentencing hearing, and without regard to appellant‘s ability to pay.
II. Law and Analysis
{¶ 6} In his sole assignment of error, Velasquez argues that the trial court improperly оrdered him to pay the costs of confinement and supervision. “Our standard of review on this issue is whether the imposition of costs was contrary to law.” State v. Ivey, 6th Dist. No. L-19-1243, 2021-Ohio-2138, ¶ 7, citing
{¶ 7} Velesquez concedes that the triаl court “properly assessed” costs of prosecution. Indeed, such costs are mandatory under
{¶ 8} Unlike the costs of prosecution, the costs of supervision and confinement are discretionary. See
{¶ 9} If the court elects to impose discretionary costs, including the costs of supervision or confinement, it must affirmatively find that the defendant has or reasonably may be expected to have, the ability to pay. See
{¶ 10} “Although the ‘best practice’ is for the trial court to put the basis for its findings regarding a defendant‘s ability to pay on the record, the trial court is not required to explicitly make findings on the record.” (Emphasis in the original.) Ivey, quoting State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786, 171 N.E.3d 290, ¶ 2. Nor is the court required to consider any specific factors in reaching its determination about a defendant‘s ability tо pay. Id. citing State v. VanCamp, 6th Dist. Wood No. WD-15-034, 2016-Ohio-2980, ¶ 10. Although the court need not conduct a formal hearing as to the defendant‘s ability to pay discretionary costs, a finding of a defendant‘s ability to pay “must be supported by clear and convincing evidence in the record.” State v. Wymer, 6th Dist. Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 14.
{¶ 11} Here, the trial court did not impose the costs of supervision or confinement during the sentencing hearing, nor did it expressly consider Velеsquez‘s present and future ability to pay such costs at that hearing. However, it its final judgment entry, the court stated that “[d]efendant found to have, or reasonably may be expected to hаve, the means to pay all or part of the applicable costs of supervision [and] confinement * * * as authorized by law.” Velasquez asks us to “find that the costs of supervision and сonfinement included in the sentencing entry must be vacated * * *.”
{¶ 12} As an initial matter, we note that the trial court did not order Velesquez to pay any costs of supervision in the sentencing entry. Costs оf supervision are not applicable in this case because Velesquez was sentenced to prison.
{¶ 13} Velesquez argues that the trial court improperly imposed the costs of confinement because it made no finding at the sentencing hearing regarding his ability to pay. And, although the court subsequently made an ability-to-pay determination in the judgment entry, Velеsquez alleges that it was “conclusory” and not supported by any evidence in the record. Notably, the state concedes error because it recognizes that we have “рreviously found reversible error in similar situations,” and the state asks us “to vacate only the portion of the sentencing entry pertaining to the costs of confinement and supervision.”1
{¶ 14} We agree with the parties. The trial court record is devoid of any evidence to support the trial court‘s determination that Velesquez has, or may be expected to have, the means to pay costs of confinement. Wymer at ¶ 14 (a finding of a defendant‘s ability to pay “must be supported by clear and convincing evidence in the record“). According
{¶ 15} In sum, based upon our review of the record, we find that the record does not contain clear and convincing evidence to support the trial court‘s determination that Velesquez has, or reasonably may be expected to have, a present or future ability to pay the costs of his confinement. Accord State v. Maloy, 6th Dist. Lucas No. L-1-1350, 2011-Ohio-6919, ¶ 15 (Defendant lacks аbility to pay where he did not finish high school, has never been gainfully employed, and will be incarcerated until he is 94 years old).
{¶ 16} For the above reasons, we find that the trial court‘s imposition оf the costs of confinement was contrary to law. Therefore, we find Velesquez‘s assignment of error well-taken, in part, but not well-taken with respect to the costs of supervision, which were not ordered in this case.
{¶ 17} The June 28, 2022 judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed, in part. The portion of the trial court‘s judgment that requires Velesquez to рay the costs of confinement is hereby vacated. The remainder of the judgment is affirmed. The state is ordered to pay the costs of this appeal pursuant to App.R. 24. It is so ordеred.
Judgment affirmed, in part, and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J.
JUDGE
Gene A. Zmuda, J.
JUDGE
Charles E. Sulek, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter оf 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/.