[Cite as State v. Maston, 2020-Ohio-209.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28172
:
v. : Trial Court Case No. 2018-CRB-4622
:
WILLIAM M. MASTON : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 24th day of January, 2020.
...........
TROY B. DANIELS, Atty. Reg. No. 0084957, Assistant Prosecuting Attorney, City of
Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
MICHAEL HALLOCK, JR., Atty. Reg. No. 0084630, P.O. Box 292017, Dayton, Ohio
45429
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, William M. Maston, appeals from his judgment of
conviction in the Dayton Municipal Court after being found guilty of two counts of criminal
trespass following a bench trial. In support of his appeal, Maston contends that the trial
court erred in sentencing him to pay a $25 fine without first considering his present and
future ability to pay the fine. Maston also contends that the sentencing entry issued by
the trial court erroneously states that he entered a guilty plea to the criminal trespassing
offenses as opposed to being found guilty after a bench trial. The State concedes error
on both matters raised by Maston.
{¶ 2} Upon review, we agree that the trial court erred by failing to consider
Maston’s present and future ability to pay the fine imposed and by issuing a sentencing
entry that incorrectly stated Maston’s manner of conviction. Therefore, the portion of the
trial court’s judgment ordering Maston to pay a $25 fine will be reversed; the matter will
be remanded to the trial court for a determination of Maston’s present and future ability
to pay the fine and for resentencing on that issue. When issuing its new sentencing
entry, the trial court shall reflect the correct manner of Maston’s conviction. In all other
respects, the judgment of the trial court is affirmed.
Relevant Facts and Course of Proceedings
{¶ 3} On July 30, 2018, the State filed a criminal complaint charging Maston with
two counts of criminal trespass, one count in violation of R.C. 2911.21(A)(3) and the other
count in violation of R.C. 2911.21(A)(4). Both counts were charged as fourth-degree
misdemeanors. The charges stemmed from allegations that Maston refused to leave the
Miami Valley Hospital emergency room following his after-hours discharge on July 30,
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2018. It was alleged that Maston refused to leave the hospital despite hospital police
explaining to Matson that the hospital’s policy required him to either leave the premises
or to arrange for a ride home. After the police gave Maston multiple directives to comply
with said policy, Maston refused to comply and was thereafter arrested for criminal
trespass.
{¶ 4} Maston pled not guilty to the charges in the complaint, and the matter was
scheduled for a bench trial to take place on October 4, 2018. The trial date, however,
was continued due to Maston’s suffering a seizure. Maston’s trial was thereafter
rescheduled for October 10, 2018, and went forward as rescheduled.
{¶ 5} After the bench trial, the trial court found Maston guilty of the two criminal
trespass charges. Once the guilty verdict was issued, the trial court proceeded
immediately to sentencing. During sentencing, the trial court merged the two criminal
trespass convictions and sentenced Maston to serve 30 days in jail with 28 days
suspended and two days of jail-time credit. The trial court also sentenced Maston to two
years of non-reporting community control sanctions with the special condition that Maston
stay away from Miami Valley Hospital unless he was transported there for a medical
emergency. The trial court further ordered Maston to pay a $25 fine and court costs.
{¶ 6} Maston now appeals from the judgment of conviction, raising two
assignments of error for review.
First Assignment of Error
{¶ 7} Under his first assignment of error, Maston contends that the trial court erred
by sentencing him to pay a $25 fine without first considering his present and future ability
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to pay the fine. The State concedes error in that regard. Upon review, we agree that
the trial court erred by failing to consider Maston’s present and future ability to pay the
fine imposed.
{¶ 8} “[T]he imposition of financial sanctions in misdemeanor cases is governed by
R.C. 2929.28.” State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d
372, ¶ 20. R.C. 2929.28(B) provides that, “the court may hold a hearing to determine
whether the offender is able to pay the financial sanction imposed pursuant to this section
or court costs or is likely in the future to be able to pay the sanction or costs.” (Emphasis
added.) While this court has held that R.C. 2929.28(B) provides that a hearing on a
defendant’s ability to pay a financial sanction is merely discretionary, we have also held
that there still must be “ ‘some evidence in the record that the court considered the
defendant’s present and future ability to pay the sanction imposed.’ ” State v. Simmons,
2d Dist. Montgomery No. 26181, 2015-Ohio-446, ¶ 8, quoting State v. Kinsworthy, 12th
Dist. Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 34 and State v. Reigsecker, 6th
Dist. Fulton No. F-03-022, 2004-Ohio-3808, ¶ 11. Accord State v. Flanagan, 11th Dist.
Ashtabula No. 2015-A-0020, 2015-Ohio-5528, ¶ 48.
{¶ 9} In this case, there is nothing in the record indicating that the trial court
considered Maston’s present and future ability to pay the $25 fine at issue. The only
information in the record that pertains to Maston’s ability to pay indicates that, at the time
of trial, Maston was 51 years old, insured by CareSource, and suffering from multiple
seizures a week. By itself, this information does not establish that the trial court
considered Maston’s present and future ability to pay the fine imposed. Therefore, we
find that the trial court erred in sentencing Maston to pay a $25 fine without first
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considering his present and future ability to pay.
{¶ 10} Maston’s first assignment of error is sustained.
Second Assignment of Error
{¶ 11} Under his second assignment of error, Maston contends that the sentencing
entry issued by the trial court erroneously stated that he entered a guilty plea to the
criminal trespassing offenses at issue. The State concedes, and we agree, that the trial
court’s sentencing entry did not state the correct manner of conviction. The record
clearly indicates that Maston did not enter a guilty plea, but instead was found guilty of
criminal trespass following a bench trial. The incorrect statement regarding Matson’s
manner of conviction is a clerical error that can be corrected nunc pro tunc. State v.
Melvin, 2d Dist. Montgomery Nos. 27248, 27263, 2017-Ohio-7938, ¶ 19, citing State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph two of the
syllabus; State ex rel. Snead v. Ferenc, 138 Ohio St.3d 136, 2014-Ohio-43, 4 N.E.3d
1013, ¶ 9; State v. Priest, 2d Dist. Montgomery No. 25896, 2014-Ohio-3843, ¶ 11.
However, insofar as our disposition of this case will require the trial court to issue a new
sentencing entry, the error shall be corrected in that entry.
{¶ 12} Maston’s second assignment of error is sustained.
Conclusion
{¶ 13} Having sustained both of Maston’s assignments of error, the portion of the
trial court’s judgment ordering Maston to pay a $25 fine is reversed and vacated, and the
matter is remanded to the trial court for a determination of Maston’s present and future
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ability to pay the fine, and resentencing on that issue. When issuing a new sentencing
entry after remand, the trial court is also ordered to reflect the correct manner of Maston’s
conviction in the new entry. In all other respects, the judgment of the trial court is affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Troy B. Daniels
Michael Hallock, Jr.
William M. Maston
Hon. Christopher D. Roberts