State v. Scott

[Cite as State v. Scott, 2022-Ohio-745.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,
CASE NO. 1-21-41
PLAINTIFF-APPELLEE,

v.

KENNETH J. SCOTT, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,
CASE NO. 1-21-42
PLAINTIFF-APPELLEE,

v.

KENNETH J. SCOTT, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,
CASE NO. 1-21-43
PLAINTIFF-APPELLEE,

v.

KENNETH J. SCOTT, OPINION

DEFENDANT-APPELLANT.
Case No. 1-21-41, 1-21-42, 1-21-43

Appeals from Lima Municipal Court
Trial Court Nos. 20CRB02349, 21CRB382 and 20CRB02361

Judgments Affirmed

Date of Decision: March 14, 2022

APPEARANCES:

Thomas J. Lucente Jr. for Appellant

Joseph C. Snyder for Appellee

WILLAMOWSKI, J.

{¶1} Defendant-appellant Kenneth J. Scott (“Scott”) brings these appeals

from the judgments of the Lima Municipal Court finding him guilty of one charge

of menacing, one charge of telecommunications harassment and one charge of

violating a protection order and sentencing him on those convictions. Scott alleges

on appeal that the convictions were against the manifest weight of the evidence, that

the trial court erred in sentencing him to maximum, consecutive sentences, and that

the trial court erred in imposing financial sanctions without considering Scott’s

ability to pay. For the reasons set forth below, the judgments are affirmed.

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Case Number 20 CRB 02349A & B1

{¶2} On December 4, 2020, Benny Hager Jr. (“Hager”) received a phone call

in Lima, Ohio from Scott. ADoc. 3. Scott was in the Allen County Jail at that time

on unrelated felony gun charges and wanted Hager to bring him $105,000 for bail.

ADoc. 3. When Hager told Scott he did not have that kind of money, Scott

threatened to kill Hager and his family. ADoc. 3. Hager then called law

enforcement. ADoc. 3. Complaints were filed on December 11, 2020 charging

Scott with 1) telecommunications harassment in violation of R.C. 2917.121(B)(1),

a misdemeanor of the first degree (case number 20 CRB 02349A) and 2) menacing

in violation of R.C. 2903.22(A), a misdemeanor of the fourth degree (case number

20 CRB 02349B). ADoc. 4 and 6. Scott made an initial appearance on December

18, 2020 and entered pleas of not guilty. ADoc. 8. The trial court released Scott on

his own recognizance, but ordered him to have no contact with Hager and to stay

away from his residence. ADoc. 9. A change of plea hearing was held on May 27,

2021 and, pursuant to a plea agreement, Scott entered a no contest plea to the

menacing charge. ADoc. 15. The telecommunication harassment charge was

dismissed as agreed by the parties. ADoc. 14. The trial court accepted the plea of

no contest and subsequently found Scott guilty of menacing. ADoc. 15. On

Augues17, 2021, the trial court sentenced Scott to 30 days in jail to be served

1
The docket in this case will be referred to as “ADoc.”

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concurrently to the sentence in case number 21 CRB 00382 and a fine of $150 along

with court costs. ADoc. 16. Scott filed a timely appeal from this judgment. ADoc.

20.

Casen Number 20 CRB 023612

{¶3} On December 15, 2020, Scott called Ariel Howell (“Howell”) on the

phone and contacted her on Facebook while she was at an address in Lima, Ohio.

Doc. 1 Scott wanted Howell to accuse Hager of sexual harassment, which had not

occurred, and threatened her when she refused. BDoc. 1. A complaint was filed

charging Scott with telecommunications harassment in violation of R.C.

2917.21(B)(1), a misdemeanor of the first degree (case number 20 CRB 02361).

BDoc. 2. Scott appeared before the trial court on December 21, 2020, and entered

a plea of not guilty. BDoc. 4. On May 27, 2021, Scott withdrew his not guilty plea

and entered a plea of no contest. BDoc. 10. The trial court subsequently found

Scott guilty of telecommunication harassment. BDoc. 10. On August 17, 2021, the

trial court sentenced Scott to 120 days in jail with 60 days suspended, a fine of $150,

and court costs. BDoc. 13. The trial court ordered that the jail sentence be served

consecutive to that imposed in case number 20 CRB 02349. BDoc. 13. Scott filed

a timely appeal from this judgment. BDoc. 15.

2
The docket in this case will be identified as “BDoc.”

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Case Number 21 CRB 003823

{¶4} On March 6, 2021 in Lima, Ohio, Scott was observed within 500 yards

of Hager’s home and posting threats to Hager on Facebook after the trial court had

ordered that Scott have no contact with Hager and not be near Hager’s home. CDoc.

1. A complaint was filed charging Scott with violation of a protections order in

violation of R.C. 2919.27(A)(2), a misdemeanor of the first degree (case number 21

CRB 00382). CDoc. 2. Scott appeared before the trial court on March 23, 2021,

and entered a plea of not guilty. CDoc. 5. On August 17, 2021, Scott withdrew his

not guilty plea and entered a plea of no contest. CDoc. 13. The trial court

subsequently found Scott guilty of violation of a protection order. CDoc. 13. The

trial court immediately sentenced Scott to 180 days in jail, a fine of $150, and court

costs. CDoc. 13. The trial court ordered that the jail sentence be served concurrent

to that imposed in case number 20 CRB 02349. CDoc. 13. Scott filed a timely

appeal from this judgment. CDoc. 16.

{¶5} On appeal Scott raises three assignments of error.

First Assignment of Error
The trial court abused its discretion when it sentenced [Scott] to
maximum jail terms and ran the terms consecutive to each other.

Second Assignment of Error

The trial court erred when it imposed a financial sanction upon
an indigent defendant without determining the defendant’s
ability to pay and to consider community service instead.

3
The docket in this case will be identified as “CDoc.”

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Third Assignment of Error

The trial court erred when it found defendant guilty against the
manifest weight of the evidence.

{¶6} In the interest of clarity, we will address the assignments of error out of

order.

Manifest Weight of the Evidence

{¶7} In the first assignment of error, Scott claims that his convictions were

against the manifest weight of the evidence. When reviewing a judgment to

determine if it is against the manifest weight of the evidence, an appellate court

“review[s] the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” State v.

Mendoza, 137 Ohio App.3d 336, 738 N.E.2d 822 (3d Dist. 2000). See, also, State

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new trial should

be granted only in the exceptional case in which the evidence weighs heavily against

conviction. Thompkins at 387, 678 N.E.2d 541. Although the appellate court acts

as a “thirteenth juror,” due deference to the findings made by the fact-finder must

still be given. State v. Moorer, 3d Dist. Seneca No. 13–12–22, 2013-Ohio-650, ¶

29.

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{¶8} Scott claims on appeal that the convictions were against the manifest

weight of the evidence because in cases numbered 20 CRB 02349 and 20 CRB

02361 the prosecutor did not state that the offense occurred in Allen County, Ohio,

thus failing to establish jurisdiction. A review of the record shows that Scott entered

pleas of no contest to these charges. A plea of no contest is an admission to the

accuracy of the facts alleged in the complaints. Crim.R. 11(B)(2). The affidavits

for the statements of facts filed with the complaints both stated that the offenses

charged occurred at addresses in Lima, Ohio. Scott admitted to the accuracy of

those statements when he entered pleas of no contest.

{¶9} Scott also claims that the prosecutor failed to show in case number 21

CRB 00382 that there was a protection order in place and that Scott recklessly

violated it. As discussed above, Scott admitted to the facts alleged in the complaint

by entering a plea of no contest. Specifically, the complaint alleged as follows.

[Scott] did recklessly violate the terms of a protection order issued
or consent agreement approved pursuant to section 2151.34,
2903.213, or 2903.14 of the Revised Code, to-wit: Case No:
CP2020-0128 issued in Allen County Common Pleas Court Civil
Division[.]

CDoc. 2. The affidavit for statement of facts filed with the complaint indicates that

the protection order was issued on January 13, 2021, and that Scott violated it by 1)

having contact with Hager, 2) coming within 500 yards of the residence and 3)

posting threats against Hager on Facebook. CDoc. 1.

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{¶10} Having reviewed the records in the cases, there was evidence to

support the findings of guilt by the trial court. The evidence did not weigh heavily

against conviction. Thus, the judgments were not against the manifest weight of the

evidence and the third assignment of error is overruled.

Maximum Consecutive Sentences

{¶11} In the first assignment of error, Scott claims that the trial court erred

by imposing maximum consecutive sentences. Initially, this court notes that the

only sentence imposed to be served consecutive to another was that in case number

20 CRB 2361, which was ordered to be consecutive to the sentence in 20 CRB 2349.

The sentences in 20 CRB 2349 and 21 CRB 00382 were ordered concurrent.

Additionally, the sentence in CRB 2361 was not a maximum sentence as it was a

first degree misdemeanor and only a sentence of 120 days was imposed when the

maximum was 180 days. Altogether, Scott served 180 days and was set for release

on February 12, 2022. See ADoc. 16-17, BDoc. 13-14, and CDoc. 13-14. If the

trial court had imposed maximum consecutive sentences, Scott would have been

ordered to serve 390 days in jail.

{¶12} Additionally, the sentences in 20 CRB 2349 and 20 CRB 2361 (90

days total) were served concurrently to the sentence in 21 CRB 00382 (180 days

total). This sentence ended on February 12, 2022. Thus the imposed sentences have

been fully served. When a sentence has been completed, a challenge to the length

of the sentence is moot because there is no relief to be given. See State v. Murphy,

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12th Dist. Clinton No. CA2019-11-018, 2021-Ohio-1452; State v. Biscardi, 11th

Dist. Portage Nos. 2019-P-0003 and 2019-P-0004, 2019-Ohio 4653; State v.

Oglesby, 1st Dist. Hamilton Nos. C-180177 and C-180178, 2019-Ohio-1456; State

v. Jones, 8th Dist. Cuyahoga No. 107277, 2019-Ohio-1126; and State v. McAbee, 5th

Dist. Ashland No. 16 COA 016, 2016-Ohio-8234. A review of the records shows

that no stay was requested. The docket sheets in each case show that the

commitment writs were returned. From a review of the record, it appears that these

sentences are completed. Thus there is no relief we can provide for Scott and the

first assignment of error is overruled as moot.

Ability to Pay

{¶13} Scott claims in the second assignment of error that the trial court erred

by imposing financial sanctions without first considering his ability to pay since he

was being represented by the Public Defender’s Office.

(A) In addition to imposing court costs pursuant to section
2947.23 of the Revised Code, the court imposing a sentence upon
an offender for a misdemeanor, including a minor misdemeanor,
may sentence the offender to any financial sanction or
combination of financial sanctions authorized under this section.
If the court in its discretion imposes one or more financial
sanctions, the financial sanctions that may be imposed pursuant
to this section include, but are not limited to, the following:

(2) A fine of the type described in divisions (A)(2)(a) and (b) of
this section payable to the appropriate entity as required by law[.]

***

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(B) If the court determines a hearing is necessary, 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.

R.C. 2929.28. For the two first degree misdemeanors, the maximum fine would be

$1,000 each. R.C. 2929.28(A)(2)(a)(i). The maximum fine for the fourth degree

misdemeanor is $250. R.C. 2929.28(A)(2)(a)(iv). Each sentence included a fine of

$150, which was below the maximum allowed fine. The statute provides that the

trial court has the discretion as to whether to hold a hearing regarding the ability of

a defendant to pay. A review of the record in this case shows that at no point did

Scott raise the issue of his alleged inability to pay the fines, thus making the standard

of review one of plain error. State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-

Ohio-5048, ¶ 26, 161 N.E.3d 112. In addition, no affidavit of indigency was ever

filed with the trial court. Although no hearing was held, it is not necessary that one

be held in order for the issue of ability to pay be considered. State v. Hall, 2d Dist.

Montgomery No. 27695, 2018-Ohio-2321, ¶ 54, 114 N.E.3d 730. At the sentencing

hearing, Scott indicated that he was employed. Tr. 13. The trial court can consider

the issue based upon a pre-sentence investigation report (“PSI”) that contains

pertinent information. Id. The PSI in this case shows that Scott was only 30 years

old and had been working before he was arrested on other charges. The statement

by Scott at the sentencing hearing and the PSI showed that Scott was employable

and most likely would have the future ability to pay the total fines of $450. No

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argument was made to the contrary. Based upon the evidence before it, the trial

court did not abuse its discretion in imposing fines as part of the sentences. The

second assignment of error is overruled.

{¶14} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgments of the Lima Municipal Court are affirmed.

Judgments Affirmed

ZIMMERMAN, P.J. and SHAW, J., concur.

/hls

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