[Cite as State v. Brammer, 2018-Ohio-3067.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-56
:
v. : Trial Court Case No. 17-CR-390
:
RICKY C. BRAMMER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 3rd day of August, 2018.
...........
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, 55 Greene Street, 1st Floor, Xenia, Ohio
45385
Attorney for Plaintiff-Appellee
KRISTA GIESKE, Atty. Reg. No. 0080141, 810 Sycamore Street, 3rd Floor, Cincinnati,
Ohio 45202
Attorney for Defendant-Appellant
.............
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DONOVAN, J.
{¶ 1} Defendant-appellant Ricky C. Brammer appeals his conviction and sentence
for two counts of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1), both
felonies of the third degree, and one count of aggravated trafficking in drugs, in violation
of R.C. 2925.03(A)(1), a felony of the first degree. Brammer filed a timely notice of
appeal with this Court on October 20, 2017.
{¶ 2} In January of 2017, Brammer was indicted in Greene County Case No. 2017
CR 0023 for the following offenses: Counts I and III, aggravated trafficking in drugs, in
violation of R.C. 2925.03(A)(1), both felonies of the third degree; Counts II and IV,
aggravated possession of drugs, in violation of 2925.11(A), both felonies of the third
degree; Count V, aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1), a
felony of the second degree; Count VI, aggravated possession of drugs, in violation of
R.C. 2925.11(A), a felony of the second degree; Count VII, aggravated trafficking in
drugs, in violation of R.C. 2925.03(A)(2), a felony of the first degree, accompanied by a
major drug offender specification; and Count VIII, aggravated possession of drugs, in
violation of R.C. 2925.11(A), a felony of the first degree, also accompanied by a major
drug offender specification. Also attached to Counts VII and VIII were one-year firearm
specifications. Finally, the indictment included the following forfeiture specifications:
1) $3,753.00 in cash; 2) 2001 Harley-Davidson motorcycle; 3) Hawkins .50 caliber muzzle
loader rifle; 4) Stihl pole saw and parts; 5) Leinad .45 caliber firearm; and 6) $39,017.18
seized from multiple bank accounts belonging to Brammer.
{¶ 3} Thereafter, Brammer entered into a plea agreement with the State whereby
the indictment in Case No. 2017 CR 0023 was dismissed. In return for dismissal of the
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indictment, Brammer agreed to plead guilty to a separate Bill of Information filed on July
24, 2017, in Greene County Case No. 2017 CR 0390.
{¶ 4} Pursuant to the Bill of Information, Brammer pled guilty to two counts of
aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1), both felonies of the third
degree (Counts I and II), and one count of aggravated trafficking in drugs, in violation of
R.C. 2925.03(A)(2), a felony of the first degree (Count III). The basis for the Bill of
Information involved controlled drug buys from Brammer conducted by the Greene
County A.C.E. Task Force. Specifically, on November 7, 2016, Brammer sold or offered
to sell a quantity of methamphetamine equal to or exceeding the bulk amount but less
than five times the bulk amount (Count I). On November 9, 2016, Brammer sold or
offered to sell a similar quantity of methamphetamine (Count II). Thereafter, on
November 16, 2016, Brammer prepared for sale a quantity of methamphetamine equal
or exceeding 50 times the bulk amount but less than 100 times the bulk amount (Count
III).
{¶ 5} The plea hearing was held on July 27, 2017. As part of the plea agreement,
the State did not attach the Major Drug Offender or firearm specifications to the first
degree felony charge in Count III. Additionally, Brammer agreed to all of the forfeiture
specifications, with the exception of the specification requiring the seizure of $39,017.18
belonging to Brammer. The State agreed not to pursue a forfeiture of the $39,017.18.
After conducting a Crim.R. 11 colloquy, the trial court found Brammer guilty of the three
counts contained in the Bill of Information and instructed the probation department to
complete a presentence investigation report (PSI) for review prior to sentencing.
Significantly, the trial court also informed Brammer that, unless he was found to be
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indigent, he was subject to mandatory minimum fine of $20,000.00 with a maximum fine
of $40,000.00.
{¶ 6} On September 15, 2017, Brammer filed a motion for waiver of the mandatory
fine and a supporting affidavit. In the motion, Brammer argued that based upon his
failing health and indigent status, he did not have the present and/or future ability to pay
the mandatory fine. Shortly thereafter on September 20, 2017, the trial court sentenced
Brammer to three years each on Counts I and II, and nine years on Count III. The trial
court ordered that the sentences for Counts I and II be served concurrently to the
sentence imposed for Count III, for an aggregate sentence of nine years in prison.
Furthermore, because the State did not pursue forfeiture of the $39,017.18 originally
seized from Brammer’s bank accounts, the trial court found that he was now able to pay
the mandatory minimum fine of $20,000.00 and imposed the fine. The trial court ordered
that the remaining balance of $19,017.18 be remitted to Brammer.
{¶ 7} It is from this judgment that Brammer now appeals.
{¶ 8} Brammer’s first assignment of error is as follows:
THE TRIAL COURT ERRED IN SENTENCING BRAMMER TO SERVE A
NINE-YEAR TERM OF INCARCERATION.
{¶ 9} In his first assignment, Brammer argues that his nine-year sentence is
contrary to law because the trial court failed to properly consider and apply R.C. 2929.11,
which governs the overriding purposes of felony sentencing, and R.C. 2929.12 which sets
forth the seriousness and recidivism factors for the court to consider in imposing
sentence. We note that Brammer acknowledges that his nine-year sentence is within
the applicable statutory range and is significantly less than the maximum sentence of 17
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years.
{¶ 10} As this Court has previously noted:
“This court no longer applies an abuse of discretion standard when
reviewing felony sentences, as the Supreme Court of Ohio has made clear
that felony sentences are to be reviewed in accordance with the standard
set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist. Clark No. 2016–
CA–28, 2016–Ohio–7415, ¶ 6, citing State v. Marcum, 146 Ohio St.3d 516,
2016–Ohio–1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State v. Rodeffer,
2013–Ohio–5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.) Under the plain language
of R.C. 2953.08(G)(2), “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.” Marcum at ¶ 1.
“This is a very deferential standard of review, as the question is not whether
the trial court had clear and convincing evidence to support its findings, but
rather, whether we clearly and convincingly find that the record fails to
support the trial court's findings.” State v. Cochran, 2d Dist. Clark No. 2016–
CA–33, 2017–Ohio–217, ¶ 7, citing Rodeffer at ¶ 31.
Even before Marcum, we had indicated “[t]he 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 reasons for
imposing maximum or more than minimum sentences.” (Citation omitted.)
State v. Nelson, 2d Dist. Montgomery No. 25026, 2012–Ohio–5759.
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Accord State v. Terrel, 2d Dist. Miami No. 2014–CA–24, 2015–Ohio–4201,
¶ 14. But “in exercising its discretion, a trial court must consider the
statutory policies that apply to every felony offense, including those set out
in R.C. 2929.11 and R.C. 2929.12.” (Citations omitted.) State v. Castle,
2016–Ohio–4974, 67 N.E.3d 1283, ¶ 26 (2d Dist.). * * *
State v. Folk, 2d Dist. Montgomery No. 27375, 2017–Ohio–8105, ¶ 5–6.
{¶ 11} Initially, we note that at Brammer’s sentencing hearing, the trial court made
the following statement:
The Court has considered the statements of the parties, the Pre-Sentence
Report, purposes and principles of sentencing, and I will balance the
seriousness and recidivism factors pursuant to [R.C.] 2929.12.
{¶ 12} Additionally, in its judgment entry of conviction, the trial court stated as
follows:
The Court has considered the record, oral statements, victim impact
statement, and the pre-sentence report. The Court has considered the
purposes and principles of sentencing under R.C. 2929.11, and has
balanced the seriousness and recidivism factors pursuant to R.C. 2929.12,
and the need for deterrence, incapacitation, rehabilitation and restitution.
The Court is guided by the overriding purposes of felony sentencing,
including protection of the public from future crime by the defendant and
others and punishment of the defendant, using the minimum sanctions that
the court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. R.C.
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2929.11[.]
{¶ 13} 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.”
{¶ 14} R.C. 2929.12(B) sets forth nine factors indicating an offender's conduct is
more serious than conduct normally constituting the offense. R.C. 2929.12(C) sets forth
four factors indicating that an offender's conduct is less serious. R.C. 2929.12(D) and
(E) each list 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 and “whether the offender has an
emotional, mental, or physical condition that is traceable to the offender's service in the
armed forces of the United States and that was a contributing factor in the offender's
commission of the offense or offenses.”
{¶ 15} At Brammer’s sentencing hearing, the trial court stated that it had received
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and reviewed the PSI. The trial court also stated that it had considered “the purposes
and principles of sentencing and recidivism factors of the revised code,” and it noted that
Brammer’s conviction for first degree felony aggravated trafficking in drugs carried a
mandatory prison sentence.
{¶ 16} As previously stated, Brammer’s pled guilty to charges involving two third
degree felony controlled drug buys (Counts I and II). Based on the two controlled drug
buys, police officers from the A.C.E. Task Force were able to secure a search warrant
which revealed a first degree felony amount of methamphetamine in Brammer’s
possession (Count III).
{¶ 17} We also note that in his PSI, Brammer attempted to minimize his role in the
offenses and, according to the PSI drafter, displayed “absolutely no remorse.” PSI, p. 7.
Brammer denied that he sold methamphetamine and stated that methamphetamine found
in his possession belonged to a friend. Brammer further stated that he was “set up” by
the confidential source who conducted the controlled drug buys on behalf of the police.
Id. The PSI author stated that Brammer “denie[d] all wrong doing and represented
himself as the victim.” Id. These comments ostensibly demonstrate a total lack of
accountability and remorse on Brammer’s part.
{¶ 18} Lastly, Brammer’s PSI discloses that he has a prior adult criminal record for
a felony offense of violence. Specifically, in 1999, Brammer was charged with two
counts of attempted murder and one count of felonious assault. While the two counts of
attempted murder were dismissed, Brammer was convicted of the felonious assault
count. Brammer’s felonious assault conviction was approximately 19 years old, but
when he was arrested for the instant offenses, two firearms were confiscated from him by
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the police. When imposing sentence, the trial court could take into account the fact that
Brammer was previously convicted of felonious assault and was now in possession of
two firearms while at the same time trafficking in significant quantities of
methamphetamine.
{¶ 19} In the case at bar, the trial court imposed a sentence within the permissible
statutory range. The record establishes that the trial court properly reviewed the PSI,
Brammer’s statements, as well as the statements of counsel. The record further
establishes that the trial court considered the principles and purposes of sentencing under
R.C. 2929.11, and that it balanced the seriousness and recidivism factors set forth in R.C.
2929.12. In sum, we are unable to find “by clear and convincing evidence that the record
does not support the sentence.” Marcum at ¶ 23. The sentence is not contrary to law.
{¶ 20} Brammer’s first assignment of error is overruled.
{¶ 21} Brammer’s second and final assignment of error is as follows:
THE TRIAL COURT ERRED IN FAILING TO WAIVE THE MANDATORY
DRUG FINE DUE TO BRAMMER’S ENDURING INDIGENT STATUS.
{¶ 22} In his second assignment, Brammer contends that the trial court erred when
it did not waive the mandatory fine with respect to his conviction for Count III. As
previously discussed, Brammer was ordered to pay a $20,000.00 mandatory fine as part
of his sentence. Brammer disputes the imposition of the fine, alleging violations of R.C.
2929.18(B)(1), which prohibits an imposition of an otherwise mandatory fine against an
indigent offender, and R.C. 2929.19(B)(5), which requires consideration of the offender's
present and future inability to pay.
{¶ 23} R.C. 2929.18(B)(1) imposes a mandatory fine for a first, second, or third
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degree felony violation of any provision of Chapter 2925, 3719, or 4729 of the Revised
Code. With respect to Count III, Brammer pled guilty to one count of aggravated
trafficking in drugs, in violation of R.C. 2925.03(A)(1), a felony of the first degree, thereby
subjecting him to the mandatory fine set forth in R.C. 2929.18(B)(1).
{¶ 24} Although Brammer's fine was mandatory under R.C. 2929.18, the trial court
still was obligated by R.C. 2929.19(B)(5) to consider his “present and future ability to pay.”
A hearing on a defendant's ability to pay is not required. Nor is a court required to make
findings. “All that is required is that the trial court ‘consider’ a defendant's ability to pay.”
State v. Hodge, 2d Dist. Montgomery No. 23964, 2011-Ohio-633, ¶ 55 (citations omitted).
“[A] trial court is not required to expressly state that it considered [a defendant's] ability to
pay a fine.” State v. Parker, 2d Dist. Champaign No. 03CA0017, 2004-Ohio-1313, ¶ 42.
Under appropriate circumstances, a reviewing court may infer that a trial court considered
the issue. Id.
{¶ 25} For purposes of the statute, being “indigent” and being “unable to pay” are
not the same. Indigency concerns a defendant's current financial situation, whereas an
inability to pay encompasses his future financial situation as well. See, e.g., State v.
Gipson, 80 Ohio St.3d 626, 636, 687 N.E.2d 750 (1998) (“[A] trial court's determination
whether an offender is indigent and is unable to pay a mandatory fine can (and should)
encompass future ability to pay. If the General Assembly had intended otherwise, the
statutes would have been written to permit a waiver of the mandatory fines based solely
on a defendant's present state of indigency, and would not have also required trial courts
to consider the additional question whether the offender is ‘unable to pay.’ ”); State v.
Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-Ohio-3002, ¶ 13 (recognizing that “
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‘indigency’ refers to a present financial ability and ‘is unable to pay’ encompasses a future
ability to pay as well”).
{¶ 26} Under the statute, “the burden is upon the offender to affirmatively
demonstrate that he or she is indigent and is unable to pay the mandatory fine.”
(Emphasis sic.) Gipson at 635. The fine is mandatory unless the offender establishes
current indigence and an inability to pay. Id. A trial court need only consider the issue,
which it frequently can do by reviewing a pre-sentence investigation report that contains
enough pertinent information. State v. Barker, 2d Dist. Montgomery No. 26061, 2014-
Ohio-3946, ¶ 15. “We review a trial court's decision on an offender's present and future
ability to pay a mandatory fine for an abuse of discretion.” Id. at ¶ 16. An abuse of
discretion often involves a decision that is unreasonable. Id.
{¶ 27} Having reviewed the record, we see no abuse of discretion in the trial court's
refusal to waive Brammer's mandatory fine. As set forth above, the fine in this case was
mandatory unless Brammer alleged in a pre-sentence affidavit that he was indigent and
unable to pay the mandatory fine. See R.C. 2929.18(B)(1); Gipson at 635. Here, the first
affidavit Brammer filed prior to his sentencing hearing is a hand-completed copy of Ohio
Public Defender Form 206R, which is the “Financial Disclosure/Affidavit of Indigency”
form utilized for determining whether a defendant is entitled to appointment of counsel.
Therein, Brammer averred that he was indigent and was “financially unable to retain
private counsel without substantial hardship[.]” Generally speaking, alleging indigency
and an inability to afford private counsel does not establish an inability to pay a fine. State
v. Plemons, 2d Dist. Montgomery Nos. 26434, 26435, 26436, 26437, 2015-Ohio-2879, ¶
9. Indeed, “[a] finding of indigence for purposes of appointed counsel does not shield
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the defendant from paying a fine.” State v. Lewis, 2d Dist. Greene No. 2011–CA–75,
2012–Ohio–4858, ¶ 16. Here, Brammer filed a second personal affidavit attached to his
motion for waiver in which he listed his numerous medical conditions. In the second
affidavit, Brammer averred that he does “not have a future ability to be gainfully employed
because of [his] medical conditions.”
{¶ 28} As previously discussed, however, the State elected to not pursue the
forfeiture of the $39,017.18 originally seized from Brammer’s bank accounts. This
decision resulted in a cash asset flowing back to Brammer, far exceeding the $20,000.00
fine. Finally, Brammer’s PSI indicates that he previously received disability in the
amount of $1,000.00 per month, but was currently being supported by his mother and
father. Brammer also reported that he was previously employed by a tree service
company for ten years. Notwithstanding his affidavits alleging his indigent status, the
record clearly establishes that Brammer was able to pay the mandatory fine imposed by
the trial court. Accordingly, the trial court did not err when it found that Brammer was
currently able to pay the mandatory minimum fine of $20,000.00.
{¶ 29} Brammer’s second and final assignment of error is overruled.
{¶ 30} Both of Brammer’s assignments of error having been overruled, the
judgment of the trial court is affirmed.
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WELBAUM, P. J., and FROELICH, J., concur.
Copies mailed to:
Nathaniel R. Luke
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Krista Gieske
Hon. Stephen Wolaver