State v. Barnett

[Cite as State v. Barnett, 2023-Ohio-678.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-22-16

v.

NIKKI NICOLE BARNETT, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20212203

Judgment Affirmed in Part and Reversed in Part

Date of Decision: March 6, 2023

APPEARANCES:

Christopher Bazeley for Appellant

Andrew R. Tudor for Appellee
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WALDICK, J.

{¶1} Defendant-appellant, Nikki Nicole Barnett (“Barnett”), appeals the

September 21, 2022 judgment of the Hardin County Court of Common Pleas

sentencing Barnett to 30 months in prison and ordering that court-appointed

attorneys fees be taxed as costs in the case and paid by Barnett. For the reasons that

follow, we affirm in part and reverse in part.

Facts and Procedural History

{¶2} This case originated on December 30, 2021, when the Hardin County

Grand Jury returned a two-count indictment against Barnett. Count 1 of the

indictment charged Barnett with Money Laundering, a third-degree felony in

violation of R.C. 1315.55(A)(3) and 1315.99(C). Count 2 charged Barnett with

Theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1) and (B)(2). On

January 20, 2022, an arraignment was held and Barnett pled not guilty to both counts

in the indictment. At that time, the trial court found Barnett to be indigent and

granted Barnett’s request for court-appointed counsel.

{¶3} On March 25, 2022, the case was resolved with a negotiated plea of

guilty. Pursuant to the plea agreement, Barnett pled guilty to Count 1 and, in

exchange, the prosecution dismissed Count 2. The trial court then ordered a pre-

sentence investigation.

{¶4} On May 3, 2022, a sentencing hearing was held and Barnett was

sentenced to five years of community control. As a term of that community control,

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the trial court ordered Barnett to enter and successfully complete the WORTH

Center, a community-based correctional facility.

{¶5} On May 4, 2022, the trial court filed its judgment entry of sentencing.

In that entry, the trial court ordered that “Defendant shall * * * [p]ay court costs,

including court appointed counsel fees which are hereby Ordered taxed as costs and

paid by Defendant[.]” (Docket No. 30, page 2). The entry further states that “[t]he

Court inquired of Defendant and finds that Defendant has, or reasonably may be

expected to have, the means to pay all of the court costs, court appointed counsel

fees, any fine, and any restitution or reimbursement.” (Docket No. 30, page 5). At

the conclusion of that entry, the trial court ordered, “Costs to Defendant, including

the costs of establishing a case in which to file a certificate of judgment for

collection purposes, for which judgment is ordered and execution may issue.”

(Docket No. 30, pages 7-8).

{¶6} On May 11, 2022, Barnett filed a notice of appeal. On May 17, 2022,

the trial court filed an entry finding Barnett to be indigent, and new counsel was

appointed to represent Barnett on appeal.

{¶7} On July 21, 2022, while the initial direct appeal was still pending, the

State of Ohio filed a motion in the trial court seeking revocation of Barnett’s

community control, based on the allegation that Barnett had failed to complete the

WORTH Center program. As a result, new trial court counsel filed an updated

financial disclosure form on Barnett’s behalf, and the trial court again found Barnett

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to be indigent and ordered that counsel be appointed to represent Barnett in the trial

court.

{¶8} On August 3, 2022, a hearing was held on the state’s revocation motion.

At that time, Barnett formally entered an admission, acknowledging that she had

violated the terms of community control as alleged.

{¶9} On August 30, 2022, a dispositional hearing was scheduled to be held.

However, at that time, the defense requested that disposition be deferred to give

Barnett the opportunity to apply for placement in another treatment program, West

Central. The trial court agreed to continue the hearing.

{¶10} On September 20, 2022, the parties returned to court for the

dispositional hearing on the community control violation. At the start of the hearing,

the trial court noted it had received information that Barnett had refused to be

evaluated for placement in the West Central treatment program. The State of Ohio

then recommended that Barnett be sentenced to 30 months in prison. The defense

requested that the trial court follow the state’s recommendation or, alternatively,

consider a lesser sentence.

{¶11} Following a review of Barnett’s criminal history and her unsuccessful

history of community control supervision in this case, the trial court found that a

prison sentence was appropriate and sentenced Barnett to 30 months in prison, with

212 days of jail time credit.

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{¶12} On September 21, 2022, the trial court filed an entry journalizing its

sentencing order. At the conclusion of that judgment entry, the trial court ordered,

“Costs to Defendant including court appointed counsel fees which are hereby

Ordered taxed as costs and paid by Defendant, for which judgment is ordered and

execution may issue.” (Docket No. 63).

{¶13} On October 20, 2022, Barnett filed the instant appeal, in which she

raises three assignments of error.

{¶14} On December 19, 2022, this court affirmed the judgment of conviction

and sentenced originally entered against defendant in the trial court. State v. Barnett,

3d Dist. Hardin No. 6-22-08, 2022-Ohio-4558.

First Assignment of Error

THE TRIAL COURT ERRED WHEN IT ORDERED
BARNETT TO PAY THE FEES OF HER COURT-APPOINTED
ATTORNEY WITHOUT A HEARING ON WHETHER SHE
HAD, OR WILL HAVE, THE MEANS TO PAY.

{¶15} In the first assignment of error, Barnett asserts that it was error for the

trial court to order Barnett to pay the costs of her court-appointed counsel without

first holding a hearing to determine Barnett’s ability to pay.

{¶16} R.C. 2941.51 governs counsel for indigents in criminal cases. In

relevant part, R.C. 2941.51(A) provides, “[c]ounsel appointed to a case * * * shall

be paid for their services by the county the compensation and expenses that the trial

court approves.” R.C. 2941.51(D) then provides:

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The fees and expenses approved by the court under this section
shall not be taxed as part of the costs and shall be paid by the
county. However, if the person represented has, or reasonably
may be expected to have, the means to meet some part of the costs
of the services rendered to the person, the person shall pay the
county an amount that the person reasonably can be expected to
pay. * * *

{¶17} In the instant appeal, Barnett asserts that a hearing was required before

the trial court could find that Barnett had, or reasonably may be expected to have,

the ability to pay the cost of her court-appointed counsel. The record reflects that

no inquiry relating to Barnett’s financial status took place on the record at the

September 20, 2022 dispositional hearing in the community control revocation

proceedings. Then, as noted above, the September 21, 2022 judgment entry of

sentencing merely provides, as to that issue, “Costs to Defendant including court

appointed counsel fees which are hereby Ordered taxed as costs and paid by

Defendant, for which judgment is ordered and execution may issue.” (Docket No.

63).

{¶18} The issue raised here by Barnett was addressed by the Supreme Court

of Ohio in State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786. In Taylor, the

Ohio Supreme Court held that, “under R.C. 2941.51(D), a trial court in a criminal

case may assess court-appointed counsel fees against a defendant without making

specific findings on the record to justify the fee assessment.” Taylor, supra, at ¶ 2.

The Supreme Court of Ohio did go on to note, “[w]e recognize, however, that the

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best practice is for the trial court to articulate its findings on the record for the benefit

of the parties and to allow for more meaningful appellate review.” Id.

{¶19} Here, while the trial court held no hearing at the time of the community

control revocation proceedings and therefore did not articulate any findings relative

to Barnett’s current or future ability to pay court-appointed counsel fees, the trial

court was not technically required to do so, pursuant to Taylor. We therefore

overrule the first assignment of error.

Second Assignment of Error

THE TRIAL COURT ERRED WHEN IT TAXED APPOINTED
COUNSEL FEES AS COSTS.

{¶20} In the second assignment of error, Barnett argues that the trial court

erred in ordering that the court-appointed fees be assessed against Barnett as costs

in the case. We agree.

{¶21} As noted above, in State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-

6786, the Supreme Court of Ohio directly addressed what is required of a trial court

under R.C. 2941.51(D) when ordering that a convicted criminal defendant

reimburse a county for the cost of court-appointed counsel.

{¶22} In that same case, the Supreme Court of Ohio also specifically

addressed whether court-appointed counsel fees may be imposed as part of a

defendant’s sentence. In so doing, the Supreme Court noted that R.C. 2941.51

plainly states that court-appointed counsel fees shall not be assessed as costs.

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Taylor, supra, at ¶ 34. The Supreme Court of Ohio then held that “while such fees

may be assessed at the sentencing hearing, they cannot be included as a part of the

offender’s sentence.” Taylor, at ¶ 37. As a point of clarification, the Supreme Court

then held that “if the assessment of the fees is included in the sentencing entry, the

court must note that the assessment of the court-appointed counsel fees is a civil

assessment and is not part of the defendant’s sentence.” Id. (Emphasis added.)

{¶23} In the instant case, the trial court’s judgment entry of sentencing

relating to the community control revocation merely states, “Costs to Defendant

including court appointed counsel fees which are hereby Ordered taxed as costs and

paid by Defendant, for which judgment is ordered and execution may issue.”

(Docket No. 63). As the trial court neglected to include any language indicating

that the order relating to court-appointed counsel fees was a civil assessment and

because the trial court further specified that such fees were be taxed as costs in the

case, defendant’s second assignment of error has merit.

{¶24} We therefore sustain the second assignment of error and vacate the

portion of the September 21, 2022 sentencing entry imposing court-appointed

counsel fees against Barnett.

Third Assignment of Error

THE SENTENCE IMPOSED BY THE TRIAL COURT IS
STRIKNINGLY [sic] INCONSISTENT WITH THE
SERIOUSNESS AND RECIDIVISM FACTORS OF R.C.
2929.12.

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{¶25} In the third assignment of error, Barnett argues that her 30-month

prison sentence is not supported by the record. Specifically, Barnett asserts that the

prison sentence is strikingly inconsistent with the factors set forth in R.C. 2929.12

that relate to the seriousness of the crime at issue and the likelihood of recidivism.

{¶26} R.C. 2953.08 specifies the grounds upon which a defendant convicted

of a felony may appeal a sentence as a matter of right. Pursuant to R.C.

2953.08(G)(2), an appellate court may reverse a sentence “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.”

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1.

{¶27} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, the Supreme

Court of Ohio clarified the appropriate scope of appellate review in cases where the

defendant is challenging the trial court’s application of R.C. 2929.11 and R.C.

2929.12. In Jones, the Ohio Supreme Court held that R.C. 2953.08(G)(2)(b) “does

not provide a basis for an appellate court to modify or vacate a sentence based on

its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12.” Jones, at ¶ 39.

{¶28} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶

9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9,

citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. “A

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sentence imposed within the statutory range is not contrary to law as long as the trial

court considered the purposes and principles of felony sentencing contained in R.C.

2929.11 and the sentencing factors contained in R.C. 2929.12.” State v. Lane, 3d

Dist. Allen No. 1-21-33, 2022-Ohio-3775, ¶ 85, citing State v. Dorsey, 2d Dist.

Montgomery No. 28747, 2021-Ohio-76, ¶ 15.

{¶29} In the instant case, Barnett was convicted of Money Laundering, a

third-degree felony in violation of R.C. 1315.55(A)(3) and 1315.99(C). Pursuant to

R.C. 2929.14(A)(3)(b), the potential prison term for such a felony of the third degree

is a definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.

Thus, Barnett’s stated prison term of thirty months is within the permissible

statutory range.

{¶30} Additionally, the September 21, 2022 judgment entry of sentencing

reflects that the trial court considered “the purposes and principles of sentencing”

in sentencing Barnett to 30 months in prison, in addition to finding that Barnett “is

not presently amendable to any available combination of community control

sanctions and that continued use of such sanctions would demean the seriousness of

her misconduct while under community control.” (Docket No. 63).

{¶31} Moreover, at the September 20, 2022 dispositional hearing, the trial

court noted that Barnett had been terminated from the WORTH Center while

previously on community control in this case; that Barnett subsequently refused to

be evaluated for a different treatment program; that Barnett had previously been

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convicted of multiple other theft offenses; and that Barnett had tested positive for

the use of marijuana, methamphetamines, and amphetamines during the pendency

of the instant case. (Sept. 20, 2022 Tr., 3, 6-8). Thus, Barnett’s sentence is not

strikingly inconsistent with the seriousness and recidivism factors set forth in R.C.

2929.12 and, notwithstanding Jones, supra, the record supports the trial court’s

determination that a 30-month prison term was appropriate at that time.

{¶32} For all of these reasons, Barnett’s sentence is not contrary to law. We

therefore overrule the third assignment of error.

{¶33} For the reasons stated above, the judgment of the Hardin County Court

of Common Pleas is affirmed in part and reversed in part.

Judgment Affirmed in Part
and Reversed in Part

MILLER, P.J. and ZIMMERMAN, J., concur.

/jlr

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