[Cite as State v. Mitchell, 2016-Ohio-1422.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2014-CA-108
:
v. : T.C. NO. 14CR367
:
JAMES MITCHELL, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___1st___ day of __ April___, 2016.
...........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P. O. Box 751192, Dayton, Ohio 45475
Attorney for Defendant-Appellant
JAMES MITCHELL, JR., Inmate # 708810, Lebanon Correctional Institute, P. O. Box 56,
Lebanon, Ohio 45036
Defendant-Appellant
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FROELICH, J.
{¶ 1} James Mitchell, Jr., pled guilty to robbery in violation of R.C. 2911.02(A)(3),
a third-degree felony, for which he was sentenced to three years in prison, the maximum
sentence for the offense. Mitchell was also ordered to pay restitution of $1,037.40, court
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costs, and court-appointed counsel fees. Mitchell appeals from his conviction.
{¶ 2} Mitchell=s original appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after
thoroughly examining the record and the law, she found no issues upon which to base an
appeal. Counsel set forth one potential assignment of error, namely that the imposition
of a maximum sentence was not supported by the record and by statutory factors. By
entry, we informed Mitchell that his attorney had filed an Anders brief on his behalf and
granted him 60 days from that date to file a pro se brief. No pro se brief was filed.
{¶ 3} After an independent review of the record, we concluded that the record
revealed at least one potentially meritorious issue for review related to the court’s order
that Mitchell pay court-appointed counsel fees as part of his sentence. We appointed
new counsel and instructed new counsel to review the entire record and raise any issues
that counsel believes have arguable merit.
{¶ 4} Mitchell now raises two assignments of error on appeal, which we will
address in reverse order.
Imposition of a Maximum Sentence
{¶ 5} Mitchell’s second assignment of error states, “The Trial Court Erred in
Sentencing Mr. Mitchell to the Maximum Sentence of Three Years.”
{¶ 6} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
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those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 7} R.C. 2929.11 requires trial courts to be guided by the overriding principles of
felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). The court must “consider the need
for incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be reasonably calculated to achieve the two overriding purposes of felony
sentencing * * *, commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.”
{¶ 8} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct
is more serious than conduct normally constituting the offense. These factors include
whether the physical or mental injury to the victim was exacerbated because of the
physical or mental condition of the victim; serious physical, psychological, or economic
harm suffered by the victim as a result of the offense; whether the offender’s relationship
with the victim facilitated the offense; and whether the offender committed the offense for
hire or as a part of an organized criminal activity.
{¶ 9} R.C. 2929.12(C) sets forth four factors indicating that an offender’s conduct
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is less serious than conduct normally constituting the offense, including whether the victim
induced or facilitated the offense, whether the offender acted under strong provocation,
whether, in committing the offense, the offender did not cause or expect to cause physical
harm to any person or property, and the existence of substantial grounds to mitigate the
offender’s conduct, although the grounds are not enough to constitute a defense. R.C.
2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the
offender’s likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the
sentencing court to consider the offender’s military service record.
{¶ 10} The Ohio Supreme Court recently held that an appellate court must apply
the standard of review set forth in R.C. 2953.08(G)(2) in reviewing a felony sentence.
State v. Marcum, Slip Opinion No. 2016-Ohio-1002. Under that standard, “an appellate
court may vacate or modify a felony sentence on appeal only if it determines by clear and
convincing evidence that the record does not support the trial court’s findings under
relevant statutes or that the sentence is otherwise contrary to law.” Id. at ¶ 1; see also
State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.) (applying the standard of
review in R.C. 2953.08(G)(2) to felony sentencing). R.C. 2953.08(G)(2) expressly
addresses findings under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C.
2929.20(I).
{¶ 11} The supreme court acknowledged that some sentences do not require a
trial court to make any of the findings that R.C. 2953.08(G) specifically addresses.
Marcum at ¶ 23. It nevertheless held that “it is fully consistent for appellate courts to
review those sentences that are imposed solely after consideration of the factors in R.C.
2929.11 and R.C. 2929.12 under a standard that is equally deferential to the sentencing
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court. That is, an appellate court may vacate or modify any sentence that is not clearly
and convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.” Id.
{¶ 12} Mitchell’s sentence was imposed after consideration of R.C. 2929.11 and
R.C. 2929.12; no statutory findings were required. Nevertheless, in accordance with
Marcum, we review the trial court’s sentence under the deferential standard articulated in
R.C. 2953.08(G).
{¶ 13} According to the bill of particulars and police reports, at approximately 11:35
a.m. on April 24, 2014, Mark Welsh was riding his bicycle on a bike path when he
encountered Mitchell. Mitchell asked Welsh, “What are you looking at” and punched
Welsh in the head. Welsh reported that Mitchell repeatedly struck him in the face and
head and tried to take his (Welsh’s) bicycle and backpack. Welsh did not allow Mitchell
to take his property. Mitchell fled when a witness yelled to him to stop and indicated that
she was calling the police. Responding officers noticed redness on the left side of
Welsh’s face, and Welsh complained of loose teeth.
{¶ 14} Mitchell was originally charged with robbery in violation of R.C.
2911.02(A)(2), a second-degree felony. He pled guilty to a reduced charge of robbery,
a third-degree felony. Mitchell was eligible for community control and faced a maximum
sentence of three years in prison.
{¶ 15} A presentence investigation was performed prior to sentencing. Mitchell
told the presentence investigator that he encountered Welsh while he (Mitchell) was
walking on the bike trail with his girlfriend. Mitchell reported that, as Welsh rode toward
them on his bike, Mitchell believed that Welsh was going to grab his girlfriend. Mitchell
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yelled to Welsh and asked him (Welsh) if he was going to grab the girlfriend; Welsh denied
that he was going to. Mitchell accused Welsh of lying and punched Welsh, and the two
fought. Mitchell stated that he was under the influence of marijuana, “triple C’s”, Vicodin,
and Percocet at the time. Mitchell denied trying to rob Welsh of his bicycle and
backpack.
{¶ 16} Mitchell was 20 years old at the time of the offense in April 2014. He had
three adult convictions at the time of sentencing: 1) misdemeanor unauthorized use of
property in April 2013, for which he received a 30-day suspended jail sentence; 2)
misdemeanor assault in August 2013, for which he received 90 days in jail; and 3)
misdemeanor assault in May 2014 (after the instant offense), for which he received 180
days in jail.
{¶ 17} Mitchell has a juvenile record dating back to 2004, when he was 10 years
old. At age 10, he was adjudicated for driving without a license and burglary. At age
12, he was adjudicated for criminal damaging and assault. At age 14, he was
adjudicated for tampering with evidence, carrying a concealed weapon, and vandalism.
At age 16, he was adjudicated for criminal trespassing. At various times, Mitchell was
placed on house arrest, received suspended detentions, was placed in detention, and
received a suspended commitment to the Department of Youth Services. He had
numerous probation violations throughout his involvement with the juvenile court. A
couple of additional allegations were dismissed by the State.
{¶ 18} Mitchell reported that he has had a substance abuse issue since age 16.
He stated that he uses a variety of substances, including marijuana, “triple C’s”, Vicodin,
Percocet, and Klonopins. Mitchell further reported that he had never had a mental health
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assessment, but he has a temper problem and hears voices. Mitchell stated that he had
been prescribed medication for mental health issues by his medical doctor, but Mitchell
had not seen his doctor for approximately 18 months.
{¶ 19} Mitchell was unemployed, had never been employed, and had no direct
sources of income. He reported that his mother, sister, and girlfriend assist him
financially.
{¶ 20} At sentencing, the trial court noted Mitchell’s criminal history and imposed
the maximum sentence of three years in prison. Upon review of the record, we cannot
conclude that this sentence was either an abuse of discretion or clearly and convincingly
unsupported by the record.
{¶ 21} Although Mitchell was only 20 years old at sentencing, he had been
adjudicated for several juvenile offenses, including assault and carrying a concealed
weapon. Two of his three adult convictions were for assault; his third adult conviction
was for unauthorized use of property, a theft offense. The facts underlying Mitchell’s
offense in this case, as presented in the bill of particulars, supported a conclusion that
Mitchell had caused physical harm in committing the robbery; Mitchell faced a maximum
of eight years in prison on the original charge. The record reflects that Mitchell might
benefit from substance abuse and mental health treatment; however, given Mitchell’s
criminal history and his conduct in this case, the court’s decision to impose a three-year
sentence was not clearly and convincingly unsupported by the record.
{¶ 22} Mitchell’s second assignment of error is overruled.
Court-Appointed Counsel Fees
{¶ 23} In his first assignment, Mitchell claims that the trial court erred when it
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ordered him to pay court-appointed counsel fees as costs. The trial court’s judgment
entry stated:
Defendant is ORDERED to pay all costs of prosecution, Court appointed
counsel costs, and any fees permitted pursuant to law. If the defendant
fails to pay that judgment or fails to timely make payments toward that
judgment under a payment schedule approved by the court, the court may
order the defendant to perform community service in an amount of not more
than forty hours per month until the judgment is paid or until the court is
satisfied that the defendant is in compliance with the approved payment
schedule. If the court orders the defendant to perform the community
service, the defendant will receive credit upon the judgment at the specified
hourly credit rate per hour of community service performed, and each hour
of community service performed will reduce the judgment by that amount.
The trial court did not inform Mitchell at sentencing that he would be required to pay court-
appointed counsel fees.
{¶ 24} The State concedes error by the trial court, citing R.C. 2941.51(D), State v.
Breneman, 2d Dist. Champaign No. 2013-CA-15, 2014-Ohio-1102, ¶ 6, and State v.
Lambert, 2d Dist. Clark No. 2015-CA-5, 2015-Ohio-5168, ¶ 18-20. Based on this
authority and others, we agree. As we stated in Lambert:
“[R.C. 2941.51(D)] confers a right of action on a county for any claim it has
for reimbursement of court-appointed counsel fees and expenses, ‘if the
person has, or may reasonably be expected to have, the means to meet
some part of the cost of the services rendered to the person.’ ” Yet, “[t]he
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right of action R.C. 2941.51(D) confers must be prosecuted in a civil action.”
In fact, the statute specifically states that “fees and expenses approved by
the court under this section shall not be taxed as part of the costs * * *.”
R.C. 2941.51(D). “Therefore, requiring a defendant to pay his court-
appointed attorney fees as part of his sentence is not condoned under R.C.
2941.51.” The Court may enter a civil judgment regarding appointed
counsel fees if it determines that the offender has the ability to pay.
However, the collection must be pursued by civil process, not enforced in
the criminal proceeding.
(Citations omitted.) Lambert ¶ 19. We have further held that a trial court errs when it
orders a defendant to pay court-appointed counsel fees without notifying the defendant
of that requirement at sentencing and determining the defendant’s ability to pay those
fees. State v. Hudson, 2d Dist. Clark No. 2011 CA 100, 2014-Ohio-1977, ¶ 8.
{¶ 25} Here, the trial court did not inform Mitchell at sentencing that he would be
required to pay court-appointed counsel fees. In addition, when imposing that
requirement in the judgment entry, the trial court treated the court-appointed counsel fees
as costs, and indicated that Mitchell could be required to perform community service if he
failed to pay those fees in accordance with a court-approved payment schedule. The
trial court thus erred in imposing court-appointed counsel fees in the judgment entry.
{¶ 26} Mitchell’s first assignment of error is sustained.
Conclusion
{¶ 27} The trial court’s order requiring Mitchell to pay court-appointed counsel fees
will be vacated. In all other respects, the trial court’s judgment will be affirmed.
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DONOVAN, P.J. and FAIN, J., concur.
Copies mailed to:
Ryan A. Saunders
Richard L. Kaplan
James Mitchell, Jr.
Hon. Douglas M. Rastatter