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State of Ohio v. Jerry M. Kelly

September 19, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JERRY M. KELLY, DEFENDANT-APPELLANT.



CRIMINAL APPEAL FROM COMMON PLEAS COURT

The opinion of the court was delivered by: Abele, J.

Cite as State v. Kelly,

DECISION AND JUDGMENT ENTRY

{¶1} This is a consolidated appeal from two separate Pickaway County Common Pleas Court judgments of conviction and sentence. Jerry M. Kelley, defendant below and appellant herein, was found guilty of (1) complicity to burglary in violation of R.C. 2923.03(A)(2)/2911.12(A)(2), and (2) complicity to theft in violation of R.C. 2923.03(A)(2)/2913.02(A)(1). Appellant also pled guilty, in a separate case, to vandalism in violation of R.C. 2909.05(B)(1)(b).

{¶2} Appellant assigns the following errors for review:*fn1

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY ORDERING MR. KELLY TO PAY $1,407.97 IN RESTITUTION WITHOUT CONSIDERING MR. KELLY'S PRESENT AND FUTURE ABILITY TO PAY AS REQUIRED BY R.C. 2929.19 (B)(6)."

SECOND ASSIGNMENT OF ERROR:

"TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION, FOR FAILING TO OBJECT TO THE TRIAL COURT'S IMPOSITION OF $1,407.97 IN RESTITUTION WITHOUT CONSIDERING WHETHER MR. KELLY HAD THE PRESENT AND FUTURE ABILITY TO PAY."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED MR. KELLY DUE PROCESS OF LAW BY IMPOSING $1,407.97 IN RESTITUTION WITHOUT CONSIDERING WHETHER MR. KELLY HAD THE PRESENT AND FUTURE ABILITY TO PAY THAT AMOUNT."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED WHEN IT ORDERED MR. KELLY TO PAY RESTITUTION TO THE ...


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