State v. WestState v. West
Appeal from Seneca County Common Pleas Court Trial Court No. 21 CR 0140
Judgment Affirmed
Date of Decision: November 14, 2022
APPEARANCES:
James J. Whitfield for Appellant
Angela M. Boes for Appellee
{1} Defendant-appellant, Alyssa D. West (“West“), appeals the April 22, 2022 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm.
{2} On August 26, 2021, the Seneca County Grand Jury indicted West on Count One of felonious assault in violation of
{3} On March 15, 2022, West withdrew her pleas of not guilty and entered guilty pleas, under a negotiated-plea agreement, to the counts alleged in the indictment. In exchange for her change of pleas, the State agreed to a sentencing recommendation. The trial court accepted West‘s guilty pleas, found her guilty, and ordered a pre-sentence investigation.
{4} On April 21, 2022, the trial court sentenced West to a minimum term of four years in prison to a maximum term of six years in prison on Count One and to 18 months in prison on Count Two. (Doc. Nos. 48-49).1 The trial court ordered West to serve the prison terms concurrently. The trial court further ordered that
{5} On May 13, 2022, West filed her notice of appeal. She raises two assignments of error for our review, which we will discuss together.
Assignment of Error No. I
The Sentence Imposed By the Trial Court is Inconsistent With the Principles and Purposes of Sentencing Under the Ohio Revised Code and Therefore is Contrary to Law.
Assignment of Error No. II
The Trial Court Erred by Assessing Restitution and Costs Without Conducting an Ability to Pay Hearing.
{6} In her first assignment of error, West argues the record does not support the trial court‘s sentence. Specifically, West contends that her sentence is contrary to law because the trial court failed to consider the purposes and principles of felony sentencing when imposing her sentence. In her second assignment of error, West argues that it was error for the trial court to impose the costs of prosecution and restitution without considering her ability to pay.
Standard of Review
{7} Under
{8} Furthermore, we review the imposition of costs and restitution under
{9} First, we will address West‘s argument challenging the prison sentence imposed by the trial court for her felonious-assault and tampering-with-evidence convictions.
{10} “It is well-established that the statutes governing felony sentencing no longer require the trial court to make certain findings before imposing a maximum sentence.” State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 29, citing State v. Dixon, 2d Dist. Clark No. 2015-CA-67, 2016-Ohio-2882, ¶ 14 (“Unlike consecutive sentences, the trial court was not required to make any particular ‘findings’ to justify maximum prison sentences.“) and State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 9 (“The law no longer requires the trial court to make certain findings before imposing a maximum sentence.“). Rather, “‘trial courts have full discretion to impose any sentence within the statutory range.‘” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶ 10, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20.
{11} In this case, as a second-degree felony, felonious assault carries a non-mandatory, indefinite sanction of two-years to eight-years of imprisonment.
{12} “[A] sentence imposed within the statutory range is ‘presumptively valid’ if the [trial] court considered applicable sentencing factors.” Maggette at ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15. Because the trial court sentenced West to a minimum term of four years in prison to a maximum term of six years in prison as to her felonious-assault conviction, the trial court‘s sentence as to that conviction is within the statutory range and is appropriately calculated. Likewise, because the trial court sentenced West to 18 months in prison as to her tampering-with-evidence conviction, the trial court‘s sentence as to that conviction falls within the statutory range.
{13}
overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.
{14} “Although the trial court must consider the purposes and principles of felony sentencing set forth in
{16} West‘s argument is without merit. Importantly, the Supreme Court of Ohio recently directed Ohio‘s courts of appeal that
{17} Thus, when imposing a felony sentence, “it is ‘[t]he trial court [that] determines the weight afforded to any particular statutory factors, mitigating grounds, or other relevant circumstances.‘” State v. McKennelly, 12th Dist. Butler No. CA2017-04-055, 2017-Ohio-9092, ¶ 15, quoting State v. Steger, 12th Dist. Butler No. CA2016-03-059, 2016-Ohio-7908, ¶ 18, citing State v. Stubbs, 10th Dist. Franklin No. 13AP-810, 2014-Ohio-3696, ¶ 16. “The fact that the trial court chose to weigh various sentencing factors differently than how appellant would have weighed them does not mean the trial court erred in imposing appellant‘s sentence.” Id.
{18} In this case, the trial court concluded that a four-year prison term is consistent with the purposes and principles of felony sentencing and “that the shortest prison term will demean the seriousness of [West‘s] conduct and will not adequately protect the public from future crime by [West] or others.” (Doc. Nos. 48-49). (See also Apr. 21, 2022 Tr. at 91). Specifically, after weighing the
{19} In particular, assessing the seriousness of West‘s conduct, the trial court found that the victim suffered serious physical harm as a result of the offense and that West‘s relationship with the victim facilitated the offense. (Apr. 21, 2022 Tr. at 91); (Doc. Nos. 48-49). See
{20} Assessing whether West was likely to commit future crimes, the trial found none of the factors under
{21} Thus, based on our review of the record, we conclude the trial court did not abuse its discretion by imposing a minimum term of four years in prison even though West would have weighed the
{22} West further argues that the trial court erred by ordering that she pay restitution and the costs of prosecution without considering her ability to pay the ordered amount. Specifically, West does not contest the amount of restitution or the costs ordered by the trial court; rather, West disputes the trial court‘s order that she begin making payments toward the restitution order within 30 days from the date of its judgment entry of sentence and the trial court‘s order that she pay the costs of prosecution within one year of its judgment entry of sentence in consideration of her incarceration.
{23} However, as an initial matter, West failed to object to the trial court‘s order that she pay restitution and the costs of prosecution. The failure to object to a trial court‘s order to pay the costs of prosecution and the failure to object to a trial court‘s award of restitution waives all but plain error on review. State v. Wilkins, 3d Dist. Shelby No. 17-13-13, 2014-Ohio-983, ¶ 8; State v. Bricker, 6th Dist. Fulton No. F-21-013, 2022-Ohio-3494, ¶ 26. “To recognize plain error, we must find obvious error affecting such substantial rights that the error was outcome-determinative.” State v. Henslee, 5th Dist. Muskingum No. CT2017-0009, 2017-Ohio-5786, ¶ 13, citing State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 62. See also
{24} “In the context of sentencing, outcome-determinative means an error that resulted in a sentence which is contrary to law.” Henslee at ¶ 13, citing State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, ¶ 23 (Lanzinger, J., concurring in part and dissenting in part). See also Wilkins at ¶ 8 (“‘[I]mposition of a sentence not authorized by statute constitutes plain error.‘“), quoting Stewart at ¶ 7.
{25} ”
{26} “‘If the record shows that the court considered a presentence investigation report that provides pertinent information about the offender‘s financial situation and his ability to pay the financial sanction, it has met its obligation under
{27} Even though “[t]he trial court did not explicitly state at the sentencing hearing or in its judgment entry that it considered [West‘s] ability to pay a financial sanction,” the trial court met its obligation under
{28} In particular, the PSI contains information reflecting West‘s age, health, education, and employment status. Accord Wilkins at ¶ 21. Specifically, the PSI states that West is 21 years old; that she is in “[g]ood” physical health; that she has completed 105 credit hours toward an associate‘s degree at Owens Community College and is enrolled (but has not started classes) at the University of Cincinnati; and that she was employed at the time of the offense.
{29} Consequently, “[b]y considering that information, the trial court satisfied its obligation under
{30} Furthermore, it was not plain error to order West to pay the costs of prosecution. That is, the trial court‘s order that West pay the costs of prosecution is not contrary to law. “’
{31} Nevertheless, West challenges that trial court‘s order that she begin making payments toward the restitution order within 30 days from the date of its judgment entry of sentence and the trial court‘s order that she pay the costs of prosecution within one year of its judgment entry of sentence in consideration of her incarceration. However, that issue is not properly before this court. Pertinently,
{32} For these reasons, West‘s assignments of error are overruled.
{33} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr