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State v. Garrett

Court of Appeals of Ohio, Second District

July 12, 2013

STATE OF OHIO, Plaintiff-Appellee
v.
TRAMMEL D. GARRETT, Defendant-Appellant

(Criminal appeal from Common Pleas Court) T.C. NO. 10CR4058/2.

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney for Plaintiff-Appellee.

RICHARD S. SKELTON, Atty. Reg. No. 0040694, Attorney for Defendant-Appellant.

OPINION

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Trammel D. Garrett, filed October 18, 2012. Garrett appeals from the trial court's September 19, 2012 Judgment Entry of Conviction, following pleas of guilty, on two counts of aggravated robbery (deadly weapon), in violation of R.C. 2911.01(A)(1), felonies of the first degree, both with firearm specifications. Garrett received an aggregate sentence of 16 years. Pursuant to a plea agreement, remaining charges in the indictment were dismissed, and the court ordered that Garrett's 16-year sentence be served concurrently to an aggregate term of 30 years to life imposed on multiple counts in another Montgomery County matter (2010 CR 4099/2), as well as a probation revocation matter from Green County (2011 CR 040). The trial court further ordered restitution herein in the amount of $1, 274.00, and it is the order of restitution that is the subject of this appeal.

{¶ 2} On September 10, 2012, Garrett entered his pleas herein, and his plea form indicates, under the heading "Other sanctions, " as follows: "Restitution to Comfort Suites in the amount of $540, Greg Edwards in the amount of $170, BP Gas Station in the amount of $168, and Teresa Lakins in the amount of $396." Defense counsel indicated to the court that he waived a presentence investigation. Prior to sentencing in Case No. 2010 CR 4099/2, also on September 10, 2012, defense counsel advised the court that an affidavit of indigency had been filed in both matters on Garrett's behalf, and the court indicated that it had ordered and reviewed a presentence investigation report ("PSI") in Case No. 2010 CR 4099/2. After imposing sentence therein, and subsequently imposing sentence in the instant matter, the court indicated as follows:

Further, in 10CR4058, Court orders that, well, again regarding this matter, based on the PSI, I know - - we all know that Mr. Garrett is going to serve a life sentence here. But as far as his health, he's in good health. I know he hasn't worked in the past, but theoretically, he could obtain a GED through prison.
The Court is going to make a finding that Mr. Garrett has a future ability to pay with regard to restitution. And also, this whole issue of prison pay comes into play here as well. Theoretically, restitution could be paid from prison pay. So the Court orders restitution to Comfort Suites in the amount of $540, to Greg Edwards in the amount of $170, and to BP Gas Station in the amount of $168, and to Theresa Lakens * * * in the amount of $396. (Emphasis added).

{¶ 3} Defense counsel objected "to any order of restitution * * * on this person's present or future ability to pay considering the sentence given in this Court, " and the following exchange occurred:

THE COURT: We have information that Mr. Garrett is in good health. He is - - he did complete the eleventh grade. He could, in his time incarceration (sic), get his GED so he could - - he actually could take courses. We've had people go through and get college degrees in prison. I think somebody got a law degree, maybe two fellow (sic) got law degrees.
MR. SKELTON: * * * So whatever degree he gets or he doesn't get, the likelihood that he's going to be able to make restitution I believe by law is so remote that this Court doesn't have the authority to order it. * * *
THE COURT: * * * That objection is noted. Again, I'm talking about future. I know we - - it's a lot of speculation, I can see.
MR. SKELTON: * * * And I think that's the objection.
THE COURT: But I think he has a future ability to pay and so the Court does order the restitution. I understand no present ability to pay again other than possible prison pay. ...

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