State v. Brewer

[Cite as State v. Brewer, 2014-Ohio-1903.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY

STATE OF OHIO, : Case No. 14CA1

Plaintiff-Appellee, :

v. : DECISION AND
JUDGMENT ENTRY
CARL BREWER, :

Defendant-Appellant. : RELEASED: 4/24/14

APPEARANCES:

Michael R. Huff, Athens, Ohio, for appellant.

Colleen S. Williams, Meigs County Prosecuting Attorney, and Amanda Bizub-
Franzmann, Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.

Harsha, J.
{¶1} Carl Brewer pleaded guilty to one count of burglary and appeals his

sentence, which included a seven-year prison term and an order to pay restitution of

$1,000 to the victim.

{¶2} First, Brewer argues that his trial counsel was ineffective because the

attorney failed to review his presentence investigation report (“PSI”) before the

sentencing hearing and failed to request a continuance of the hearing to review the

report. However, counsel indicated he did not review the PSI because it was

incomplete due to Brewer's failure to cooperate with the investigation. Moreover, given

Brewer’s admitted noncompliance with the trial court’s orders, including his criminal

conduct while released on bond pending sentencing, Brewer cannot establish a

reasonable probability that, but for counsel’s purported errors, the result of the

proceeding would have been different.
Meigs App. No. 14CA1 2

{¶3} Next, Brewer claims that the trial court abused its discretion in sentencing

him just short of the maximum prison term authorized by law. Because our standard of

review in felony sentencing cases is no longer the abuse-of-discretion standard and

Brewer concedes that his seven-year prison sentence is not clearly and convincingly

contrary to law, this assignment of error has no merit.

{¶4} Brewer finally contends that the trial court erred when it sentenced him to

pay restitution of $1,000 to the victim without first inquiring of his ability to pay as

required by R.C. 2929.19(B)(5).1 Brewer’s claim is meritless because the record

included pertinent information about his financial situation and the trial court specified

that it had determined that he “has the present and/or future ability to pay restitution.”

{¶5} Therefore, we overrule Brewer’s assignments of error and affirm the

judgment of the trial court.

I. FACTS

{¶6} Michael Duhl, who had installed cameras inside his home, telephoned

police that Brewer was burglarizing his house. The police interrupted the burglary and

arrested Brewer when he attempted to run away. Brewer later confessed to breaking

into Duhl’s house and stealing items from it. A subsequent search of Brewer’s car

uncovered a tool case stolen from Duhl’s house in an earlier burglary.

{¶7} Less than two months later, a Meigs County grand jury indicted Brewer on

two counts of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree.

At his arraignment hearing, Brewer stated that he was 28 years old, he had not worked

1
Both parties and the trial court erroneously refer to this requirement as being in R.C. 2929.19(B)(6).
They are, however, referring to former R.C. 2929.19(B)(6), which was amended and included in the
current version of R.C. 2929.19(B)(5) before this criminal case was instituted. See State v. Jennings, 2d
Dist. Montgomery No. 24559, 2012-Ohio-1229, ¶ 6.
Meigs App. No. 14CA1 3

in two years, he did not have assets more than $500 in his name alone, and he lived

with his father. The trial court determined that Brewer was indigent and appointed

attorney David Baer to represent him. Brewer noted that he had just posted $500 to be

released on a $5,000 bond in a different criminal matter. The trial court set a $5,000

appearance bond, with 10% cash permitted.

{¶8} Shortly thereafter, the trial court held a bond hearing, and it released

Brewer on his own recognizance upon his posting of $110 in fees. The court ordered

Brewer to remain at his mother’s residence except to travel with prior approval to church

and doctor appointments. The trial court later held that Brewer need not post the $110

in fees because he had previously posted the $500 for the initial bond.

{¶9} About a month later, the state filed a motion to revoke Brewer’s bond on

the basis that he had committed another burglary while he was out on bond. The trial

court revoked the bond and ordered Brewer’s arrest and detention until he could appear

before it. At a pretrial hearing, the state commented that Brewer had been released on

his own recognizance for various crimes on five separate occasions and that he had

“been in court a number of times on bond revocations,” including “a new breaking and

entering,” which verified that he was not complying with the conditions of his release.

The trial court emphasized to Brewer that he had to follow court orders, and it set a new

bond.

{¶10} Brewer then entered into an agreement to plead guilty to the second count

of burglary in return for the dismissal of the first count. The parties agreed that the state

would recommend a prison term not to exceed four years and Brewer would argue that

he be sentenced to community control. At the change of plea hearing, Brewer testified
Meigs App. No. 14CA1 4

that he had completed the seventh grade and that he was not able to read and write

very well. He stated, however, that he had previously been employed as a carpenter

and also operated forklifts and Bobcat machines. He also stated that other than some

liver problems he did not have physical or mental issues. The state noted that although

Brewer’s previous bond had been revoked because of a suspected burglary, because

he was not indicted for that incident, the state would not oppose letting Brewer out on

bond pending sentencing. A neighbor in the audience at the hearing noted that

everybody in the community had had trouble with Brewer in the past.

{¶11} The trial court found Brewer guilty upon the parties’ stipulation of fact and

ordered a presentence investigation. The trial court further ordered that Brewer submit

to an evaluation and assessment by TASC, Health Recovery Services, and SEPTA.

The trial court released him on his own recognizance upon payment of $110 on the

conditions that he stay home, he not have contact with either the victim of the crime or

another neighbor who spoke at the hearing, he remain at home except when he went to

church, and he remain law abiding.

{¶12} A couple months later, the trial court held a sentencing hearing. The state

noted that Brewer had not completed the ordered evaluations and had been stopped by

the State Highway Patrol for marijuana possession while out on bond pending

sentencing.2 In accordance with the parties’ plea agreement, the state recommended

that Brewer receive a four-year prison term. The burglary victim requested restitution of

$1,000 to replace a broken door, and in his victim impact statement, requested a six-

month prison term. Brewer’s trial counsel, attorney Baer, argued that Brewer should be

2
Although the hearing does not indicate whether he was charged, Brewer's brief on appeal concedes that
he was cited for a misdemeanor marijuana charge.
Meigs App. No. 14CA1 5

placed in a community based correctional facility, rather than prison, to participate in

programs addressing his underlying chemical dependency and substance abuse

problems. But the attorney recognized that if Brewer had failed to make the

appointments to be evaluated for these programs, “that may limit ou[r] choices.”

{¶13} At that point in the proceedings, the trial court asked attorney Baer if he

had seen Brewer’s PSI:

THE COURT: Did you not get a chance to see the PSI?

ATTORNEY BAER: No. I understood it was incomplete.

THE COURT: It’s dreadful.

ATTORNEY BAER: Uh…

THE COURT: Totally not compliant. He ignored all the instructions of my
staff. Failed to go to SEPTA. Failed to participate in MonDay. Didn’t do
anything we requested. Today is the day. I am sure you remember the
litany I told him. He had to get all of that done

ATTORNEY BAER: Yes.

THE COURT: And it’s certainly no reflection on you, Mr. Baer. I don’t
want you to argue things that are not possible for me at this point.

ATTORNEY BAER: That’s alright. Alright.

{¶14} The trial court noted that a probation officer had given Brewer a packet for

the PSI that he was supposed to complete and return, but he did not. Brewer claimed

that he didn’t understand it. Brewer also failed to set an appointment with Health

Recovery Services for a drug-dependence evaluation until the date of sentencing.

Brewer claimed that he completed a TB test and answered questions at SEPTA, but he

did not disagree with the court’s statement that SEPTA found that he was not an

acceptable candidate. Brewer agreed that his multiple misdemeanor convictions related
Meigs App. No. 14CA1 6

to his use of alcohol and drugs and that he couldn’t even remember that he had been

pulled over by a patrolman for marijuana use while driving a car. The PSI concluded

that Brewer “has a problem with following rules and the ability to stay out of trouble” and

recommended that he be sentenced to the maximum prison term.

{¶15} At the conclusion of the hearing, the trial court decided to sentence

Brewer to a prison term longer than that recommended by the state because of his

failure to follow orders, including his continued violation of the law while he was out on

bond:

THE COURT: Alright. I’m giving him seven years in prison. I’m going to
remand him to the custody of the Meigs County Sheriff. You can apply for
judicial release after 60 months. I’m not following the recommendation of
the State. I don’t think it’s severe enough based on the fact you don’t do
anything anybody says, Mr. Brewer. You continue to violate the law while
you’re on bond. Remanded to custody.

{¶16} The trial court also ordered Brewer to pay court costs and the $1,000 in

restitution requested by the victim. The trial court issued a sentencing entry reflecting

its decision.

{¶17} We dismissed Brewer’s initial appeal because there was no journal entry

resolving the first count of burglary charged in the indictment. State v. Brewer, 4th Dist.

Meigs No. 12CA9, 2013-Ohio-5118. Subsequently, the trial court issued a new

sentencing entry that sentenced Brewer to seven years in prison on his conviction for

the second count of burglary, dismissed the first count of burglary, and ordered that

Brewer pay $1,000 in restitution to the victim. This appeal from the amended

sentencing entry ensued.

II. ASSIGNMENTS OF ERROR
Meigs App. No. 14CA1 7

{¶18} Brewer assigns the following errors for our review:

1. The appellant was denied the effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the Constitution
of the United States and Art. I, section 10 of the Ohio Constitution.

2. The trial court abused its discretion when it sentenced appellant to
serve a near maximum sentence (7 years out of a possible maximum 8
year sentence).

3. The trial court erred as a matter of law and abused its discretion when
it sentenced appellant to pay restitution of $1,000 to the victim without first
inquiring of the appellant’s ability to pay as required by ORC
2929.19(B)[5].

III. LAW AND ANALYSIS

A. Ineffective Assistance of Counsel

{¶19} In his first assignment of error Brewer claims that he was denied the

effective assistance of counsel. More specifically, Brewer contends that his trial counsel

was ineffective because he did not review the PSI, did not request a continuance to

confer with Brewer and have Brewer complete the PSI, and failed to address the trial

court’s concerns.

{¶20} Criminal defendants have the constitutional right to counsel, which

includes the right to the effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387,

392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (“we have held that the trial-level right to

counsel, created by the Sixth Amendment and applied to the States through the

Fourteenth Amendment, * * * comprehends the right to effective assistance of counsel”);

Article I, Section 10, Ohio Constitution.

{¶21} To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must establish (1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a
Meigs App. No. 14CA1 8

reasonable probability that, but for counsel’s errors, the result of the proceeding would

have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d

1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 23. The

defendant bears the burden of proof because in Ohio, a properly licensed attorney is

presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 23. Failure to establish either part of the test is fatal to an ineffective-

assistance claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538

N.E.2d 373 (1989).

{¶22} Brewer cannot establish a reasonable probability that but for counsel’s

alleged errors, the result of the proceeding would have been different. The transcript of

the sentencing hearing indicates that the trial court rejected the state’s recommendation

of a four-year prison term and imposed a harsher sentence because Brewer exhibited a

pattern of not complying with orders, including violating the law while released on bond.

Ironically, Brewer argues that he completed a SEPTA evaluation and had a TB test,

“thus partially complying” with the trial court’s orders. (Emphasis added.) By

contending that he only partially complied with the orders, Brewer essentially concedes

that he did not fully comply with them. And Brewer further admits, as he did at the

sentencing hearing, that one of the trial court orders he violated required him to abide

by the law when he was released on bond pending sentencing; he violated the order

because he was pulled over for a marijuana charge.

{¶23} There is no credible evidence in the record to suggest that if Brewer’s trial

counsel had reviewed the PSI before sentencing, requested a recess during sentencing,
Meigs App. No. 14CA1 9

or asked that Brewer be given additional time to complete the information he had failed

to previously on the PSI, a different result was reasonably probable. Brewer does not

argue on appeal that the information in the PSI was incorrect; nor can he allude to any

additional information that could have changed the fact that he continued to violate the

law during the short period of time he was released on bond pending sentencing and

that he failed to complete information or provide evaluations as instructed. Nor could he

have changed the fact when he did get evaluated, SEPTA determined that he was not

an acceptable candidate for its program. Furthermore, Brewer never expressed

dissatisfaction with his trial counsel’s performance during the trial court proceedings. In

fact, the record generally exhibits that notwithstanding Brewer’s repeated failure to

comply with court orders and instructions, his trial counsel negotiated a favorable plea

agreement and provided a competent argument concerning the propriety of community

control in lieu of prison. Ultimately, however, his trial counsel could not persuade the

court to overlook Brewer’s continued noncompliance with court orders and instructions.

{¶24} Under these circumstances, Brewer cannot establish prejudice from his

counsel’s allegedly deficient performance during sentencing. Therefore, his ineffective-

assistance assignment of error fails. See, e.g., State v. Ramos, 11th Dist. Geauga No.

2007-G-2794, 2008-Ohio-3738, ¶ 29, 33 (claim of ineffective assistance of counsel

based in part on trial counsel’s failure to review presentence investigative report

rejected); State v. Barnes, 8th Dist. Cuyahoga No. 94025, 2010-Ohio-4674, ¶ 46 (trial

counsel’s failure to read presentence investigation report or request additional time to

do so before sentencing did not constitute ineffective assistance because the record did

not establish prejudicial error). We overrule Brewer’s first assignment of error.
Meigs App. No. 14CA1 10

B. Prison Sentence

{¶25} In his second assignment of error, Brewer asserts that the trial court

abused its discretion when it sentenced him to serve a near maximum prison sentence

of seven years.

{¶26} Initially, we must determine the correct standard of review in felony

sentencing cases. “Prior to Foster, [109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470],

there was no doubt regarding the appropriate standard for reviewing felony sentences.

Under the applicable statute, appellate courts were to ‘review the record, including the

findings underlying the sentence or modification given by the sentencing court. * * * The

appellate court’s standard for review [was] not whether the sentencing court abused its

discretion. R.C. 2953.08(G)(2).” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E2d 124, ¶ 9. “The statute further authorized a court of appeals to ‘take any

action * * * if it clearly and convincingly finds either of the following: (a) That the record

does not support the sentencing court’s findings under division (B) or (D) of section

2929.13, division (E)(4) of section 2929.14, or division (H) of section 2929.20 of the

Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary

to law.’ Former R.C. 2953.08(G)(2), 2004 Am.Sub.H.B. No. 473, 150 Ohio Laws, Part

IV, 5814.” Id. at ¶ 10.

{¶27} In Foster, the Supreme Court of Ohio declared certain provisions of the

felony sentencing statutes unconstitutional and excised them because they required

judges to make certain factual findings before imposing maximum, non-minimum, or

consecutive sentences. The Supreme Court held that insofar as former R.C.
Meigs App. No. 14CA1 11

2953.08(G), referred to the severed unconstitutional judicial findings provisions, it no

longer applied. Id. at ¶ 99.

{¶28} Following Foster, appellate districts applied different standards of review

in felony sentencing cases. Kalish at ¶ 3. In Kalish, the Supreme Court of Ohio

attempted to resolve the conflicting standard, and a three-judge plurality held that based

on the court’s previous opinion in Foster, “appellate courts must apply a two-step

approach when reviewing felony sentences. First, they must examine the sentencing

court’s compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary to law. If this first

prong is satisfied, the trial court’s decision in imposing the term of imprisonment is

reviewed under the abuse-of-discretion standard.” Id. at ¶ 26. A fourth judge concurred

in judgment only and advocated a differing standard based on which statutes were

being challenged. Id. at ¶ 27-42 (Willamowski, J., concurring). The remaining three

judges joined the author of the court’s decision in Foster in an opinion that stated Foster

did not modify the standard for appellate review of felony sentences set forth in R.C.

2953.08, which did not include an abuse-of-discretion standard. Id. at ¶ 43-68

(Lanzinger, J., dissenting).

{¶29} In the wake of Kalish, most appellate courts, including this one, followed

the two-step standard of review specified by the plurality, even though it had not

garnered the support of a majority of the Supreme Court. See, e.g., State v. Tolle, 4th

Dist. Adams No. 13CA964, 2013-Ohio-5568, ¶ 22.

{¶30} Following Kalish, however, the United States Supreme Court held contrary

to Foster, that it is constitutionally permissible for states to require judges rather than
Meigs App. No. 14CA1 12

juries to make findings of fact before imposing consecutive sentences. Oregon v. Ice,

555 U.S. 160, 164, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). The Supreme Court of Ohio

then held that the sentencing provisions it ruled unconstitutional in Foster remained

invalid following Ice unless the General Assembly enacted new legislation requiring the

judicial findings. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768,

paragraphs two and three of the syllabus. Thereafter, the General Assembly enacted

2011 Am.Sub.H.B. No 86 (“H.B. 86”), which revived some of the judicial fact-finding

requirements for sentences and reenacted the felony sentencing standard of review in

R.C. 2953.08(G).

{¶31} In light of these quickly changing circumstances, many appellate courts

have abandoned the standard of review set forth in the Kalish plurality and returned to

the standard set forth in the statute. Recently, in State v. Bever, 4th Dist. Washington

No. 13CA21, 2014-Ohio-600, ¶ 13, the lead opinion espoused the view that we should

adopt the holdings of those other appellate districts that have addressed the issue and

hold that the abuse-of-discretion part of the Kalish test no longer controls. In that case,

the author of this opinion concurred in judgment because the appeal was manifestly

governed by the standard of review in R.C. 2953.08(G)(2), so we did not need to

address the viability of the second part of the standard of review set forth in Kalish. Id.

at ¶ 24 (Harsha, J., concurring in judgment only)3; see also State ex rel. Asti v. Ohio

Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 34,

quoting PDK Laboratories, Inc. v. United States Drug Enforcement Administration

(D.C.Cir.2004), 362 F.3d 786, 799 (Roberts, J., concurring in part and in the judgment)

(“ ‘This is a sufficient ground for deciding this case, and the cardinal principle of judicial
3
Judge McFarland also concurred in judgment only to the lead opinion in Bever.
Meigs App. No. 14CA1 13

restraint—if it is not necessary to decide more, it is necessary not to decide more—

counsels us to go no further’ ”).

{¶32} Here, however, Brewer does not assert that the trial court’s seven-year

sentence is contrary to law. Nor does he suggest that his appeal is based on any of the

grounds specified in R.C. 2953.08(A). Instead, he argues simply that the trial court’s

imposition of a seven-year sentence constituted an abuse of discretion under the

second part of the Kalish test. Therefore, the issue of whether the Kalish test remains

viable is directly before us in this appeal.

{¶33} Upon consideration, we join the growing number of appellate districts that

have abandoned the Kalish plurality’s second-step abuse-of-discretion standard of

review; when the General Assembly reenacted R.C. 2953.08(G)(2), it expressly stated

that “[t]he appellate court’s standard of review is not whether the sentencing court

abused its discretion.” See generally State v. White, 1st Dist. Hamilton No. C-130114,

2013-Ohio-4225, ¶ 9 (“we cannot justify applying an abuse of discretion standard where

the legislature has explicitly told us that the standard of review is not an abuse of

discretion. Thus, henceforth, we will apply the statutory standard rather than the Kalish

plurality framework to our review of felony sentences”); State v. Scates, 2d Dist. Clark

No. 2013-CA-36, 2014-Ohio-418, ¶ 11 (“Kalish’s two-step approach no longer applies to

appellate review of felony sentences”); State v. Tammerine, 6th Dist. Lucas No. L-13-

1081, 2014-Ohio-425, ¶ 10 (“Given recent legislative action in Ohio, culminating in the

passage of a new statute directly addressing appellate court felony sentence review and

a growing body of recent appellate cases applying the new statutory parameters, we are

no longer utilizing the former Kalish approach”); State v. Venes, 2013-Ohio-1891, 992
Meigs App. No. 14CA1 14

N.E.2d 453 (8th Dist.), ¶ 10 (“With the basis for the decision in Kalish no longer valid,

and given that Kalish had questionable precedential value in any event, we see no

viable reasoning for continuing to apply the standard of review used in that case”); State

v. Ayers, 10th Dist. Franklin No. 13AP-371, 2014-Ohio-276, ¶ 8, quoting State v. Allen,

10th Dist. Franklin No. 10AP-487, 2011-Ohio-1757, ¶ 21 (“ ‘since Kalish, this court has *

* * only applied the contrary-to-law standard of review’ ”); State v. Waggoner, 12th Dist.

Butler No. CA2013-02-027, 2013-Ohio-5204, ¶ 6, quoting State v. Crawford, 12th Dist.

Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6 (“we recently stated that ‘rather

than continue to apply the two-step approach as provided by Kalish’ in reviewing felony

sentencing, ‘the standard of review set forth in R.C. 2953.08(G)(2) shall govern all

felony sentences’ ”).

{¶34} To be sure, as Judge Froelich pointed out in his concurring opinion in

State v. Rodeffer, 2d Dist. Montgomery Nos. 25574 et seq., 2013-Ohio-5759, ¶ 45

(Froelich, J., concurring), it can be asserted that when an appeal is not made under

R.C. 2953.08(A), (B), or (C), the standard of review set forth in R.C. 2953.08(G)(2) does

not apply from the outset. That is, under this view, there may be appeals in felony

sentence cases that are not governed by the statute at all.

{¶35} Nevertheless, as Judge Hall pointed out in his concurring opinion in

Rodeffer, this strict interpretation of R.C 2953.08 was not adopted by the Supreme

Court in Kalish, where “all seven jurists agreed that former R.C. 2953.08(G)(2) applied

to all felony sentencing.” Id. at ¶ 51 (Hall, J., concurring). Indeed, under the views of

the two three-Justice opinions in Kalish—the plurality and the dissent, the manifest
Meigs App. No. 14CA1 15

conclusion is that “R.C. 2953.08, had it not been for the severance of the statute by

Foster, was intended to apply to all felony sentencing.” Id. at ¶ 53 (Hall, J., concurring).

{¶36} In addition, we must acknowledge that Kalish was merely a plurality

opinion. Its standard of review was never made a part of the court’s syllabus. See

Ayers at ¶ 8, noting that the Tenth District Court of Appeals has historically not applied

the abuse-of-discretion prong of the Kalish test. Moreover, the basis for the Kalish

plurality holding was extinguished when the legislature reenacted R.C. 2953.08, in H.B.

86. Under these circumstances, there is no longer any basis to apply the abuse-of-

discretion prong of the standard of review set forth in the Kalish plurality opinion

because it is based on precedent that has since been abrogated.

{¶37} R.C. 2953.08(G)(2) specifies that an appellate court may increase,

reduce, modify, or vacate and remand a challenged felony sentence if the court clearly

and convincingly finds either that “the record does not support the sentencing court’s

findings” under the specified statutory provisions or “the sentence is otherwise contrary

to law.” As noted previously, under this standard the appellate court does not determine

whether the trial court abused its discretion. R.C. 2953.08(G)(2).

{¶38} Applying this standard of review, as Brewer concedes we must, his seven-

year sentence for burglary is not clearly and convincingly contrary to law. Although the

plurality opinion in Kalish no longer controls our standard of review of felony sentences,

“it may still be utilized in the course of determining whether a sentence is clearly and

convincingly contrary to law.” Tammerine, 2014-Ohio-425, at ¶ 15. Consequently, a

sentence is generally not contrary to law if the trial court considered the R.C. 2929.11

purposes and principles of sentencing as well as the R.C. 2929.12 seriousness and
Meigs App. No. 14CA1 16

recidivism factors, properly applied postrelease control, and imposed a sentence within

the statutory range. Id., citing Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, at ¶ 18. The sentence must also comply with any specific statutory requirements

that apply, e.g. a mandatory term for a firearm specification, certain driver's license

suspensions, etc.

{¶39} In its amended sentencing entry the trial court specified that it considered

the principles and purposes of sentencing under R.C. 2929.11, balanced the

seriousness and recidivism factors under R.C. 2929.12, and properly applied

postrelease control. In addition, the trial court imposed a seven-year prison sentence

for Brewer’s second-degree felony conviction for burglary, which was within the

statutory range of two to eight years. R.C. 2929.14(A)(2). Therefore, Brewer’s seven-

year sentence is not clearly and convincingly contrary to law.

{¶40} Brewer’s argument under his second assignment of error is restricted to

contending that the trial court abused its discretion in imposing a seven-year sentence

because the reasons it cited for departing from the state’s recommended four-year

prison term were unreasonable, arbitrary, and capricious. But as previously discussed,

this second part of the Kalish test is no longer applicable.

{¶41} Moreover, even assuming the second step of the Kalish test remains

viable, Brewer’s argument would still fail. The trial court’s reliance on Brewer’s failure to

follow court orders and instructions, including engaging in criminal conduct while out on

bond pending sentencing, justified the imposition of a near-maximum sentence. In

addition, the PSI recommended that Brewer be given the maximum term based upon
Meigs App. No. 14CA1 17

the pertinent statutory factors. The trial court’s seven-year sentence was neither

unreasonable, arbitrary, nor unconscionable.

{¶42} Because Brewer’s challenge to his felony sentence is meritless, we

overrule his second assignment of error.

C. Restitution

{¶43} In his third assignment of error, Brewer argues that the trial court erred

and abused its discretion when it ordered him to pay restitution of $1,000 to the victim

without first inquiring of Brewer’s ability to pay as required by R.C. 2929.19(B)(5).

{¶44} R.C. 2929.18(A)(1) authorizes a trial court to order a felony offender to

make restitution to the victim of the offender’s crime in an amount based on the victim’s

economic loss. Before imposing this financial sanction, the trial court “shall consider the

offender’s present and future ability to pay” the sanction. R.C. 2929.19(B)(5). A trial

court abuses its discretion in imposing a financial sanction without conducting even a

cursory inquiry into the offender’s present and future means to pay the amount

imposed. State v. Dennis, 4th Dist. Highland No. 13CA6, 2013-Ohio-5633, ¶ 14.

{¶45} We review the totality of the record to determine whether this statutory

requirement has been satisfied, so that even if the trial court’s sentencing entry does not

specify that the court considered the defendant’s ability to pay, the record may indicate

that the court did so. State v. Bulstrom, 2013-Ohio-3582, 997 N.E.2d 162, ¶ 15 (4th

Dist.).

{¶46} Here, the trial court’s amended sentencing entry specified that the court

“determined that the Defendant has the present and/or future ability to pay restitution.”

In that entry, the trial court further noted that it considered the record of the case. The
Meigs App. No. 14CA1 18

record included Brewer’s statements that he was 28, suffered from no major physical or

mental problems, and was an experienced carpenter and forklift operator. In addition,

he posted $500 for one bond and $110 for another bond. Therefore, the record

establishes that the trial court sufficiently considered Brewer’s present and future ability

to pay restitution. The mere fact that the trial court found him indigent and appointed

counsel for him did not preclude the same court from finding that he had the ability to

pay his burglary victim restitution of $1,000 in the future. Bulstrom at ¶ 17. Therefore,

we overrule Brewer’s third assignment of error.

IV. CONCLUSION

{¶47} Having overruled Brewer’s assignments of error, we affirm the judgment of

the trial court.

JUDGMENT AFFIRMED.
Meigs App. No. 14CA1 19

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Meigs
County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________
William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.