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State v. Thomas

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 22, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DEWAYNE THOMAS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595595-H

          ATTORNEY FOR APPELLANT Britta M. Barthol

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Frank Romeo Zeleznikar Assistant County Prosecutor

          BEFORE: Stewart, J., Keough, A.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, J.

         {¶1} Defendant-appellant DeWayne Thomas and six codefendants were named in a 25-count indictment on a fraudulent check scheme perpetrated against multiple defendants. Thomas pleaded guilty to 18 of the counts, including 10 counts of forgery. The court sentenced him to a total of five years in prison and ordered him to pay restitution in the amount of $5, 941.38. In his three assignments of error, Thomas challenges his sentence, his restitution order, and the imposition of court costs. For the reasons that follow, we affirm the trial court's decision.

         {¶2} In his first assignment of error, Thomas argues that some of his convictions should have merged for purposes of sentencing. See R.C. 2941.25(A). He complains that each forgery count in violation of R.C. 2913.31(A)(2) is allied with each respective forgery count in violation of R.C. 2913.31(A)(3), and thus should have been merged at sentencing. Thomas failed to raise the issue of allied offenses before the trial court. He has, therefore, forfeited the right to raise the issue now on appeal except for plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-22.

         {¶3} The burden is on the appellant to affirmatively demonstrate plain error on the record: "a deviation from a legal rule" constituting "an 'obvious' defect in the trial court proceedings" and a reasonable probability that it resulted in prejudice. Id., quoting State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 Ohio St.3d 900, ¶ 16. This court has discretion to correct any "'plain errors or defects affecting substantial rights' notwithstanding the accused's failure to meet his obligation to bring those errors to the attention of the trial court." Id. at ¶ 22, quoting Crim.R. 52(B). Even after a plain error is established, this court is not required to correct it; to the contrary, the Supreme Court has circumscribed this court's ability to notice plain errors to "exceptional circumstances, " and then only to prevent a "manifest miscarriage of justice." Id. at ¶ 23, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

         {¶4} Thomas cites State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, for the proposition that it is plain error when a trial court does not account for allied offenses that are clearly present on the record. As Thomas notes, in Underwood, the state agreed that "[t]he two counts * * * would be considered allied offenses of similar import and would require the Court to sentence the defendant to only one of the thefts." Id. at ¶ 5. The facts here differ from Underwood in that the state has made no such concession. Contrary to Underwood, there is no discussion of allied offenses anywhere on the record in this case. As such, Thomas cannot meet his burden of affirmatively demonstrating plain error. Finding no merit to his argument, we overrule his first assignment of error.

         {¶5} In his second assigned error, Thomas complains about the amount of restitution he was ordered to pay. At sentencing, Thomas did not dispute either the court's order that he pay restitution or the amount he was ordered to pay. Now on appeal, Thomas argues for the first time that the trial court erred by not apportioning the amount of restitution between codefendants. By not making his argument to the trial court, Thomas once again forfeits all but plain error on appeal. See State v. Pollard, 8th Dist. Cuyahoga No. 97166, 2012-Ohio-1196, ¶ 8.

         {¶6} R.C. 2929.18(A)(1) provides that the amount of restitution a court orders "shall not exceed the amount of economic loss suffered by the victim." Thomas has not demonstrated on the record that the trial court violated this provision. To the contrary, Thomas seems to confirm that the court followed the law: in his brief he states that his restitution order is for the "full amount of loss." Thomas's claims about what his codefendants were or were not ordered to pay as restitution are unsubstantiated and outside of the record. As such, Thomas has not met his burden of establishing any plain error. See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22. Accordingly, we overrule this assigned error.

         {¶7} In his third and final assignment of error, Thomas argues that the court erred by imposing the cost of prosecution "outside of his presence." R.C. 2947.23(A)(1)(a) requires that all criminal defendants pay for the cost of prosecution. The transcript reflects that the trial court did not impose court costs on Thomas during his sentencing hearing; however, the journal entry confirms that the court did, nevertheless impose costs. Because of this, Thomas complains that he did not have the opportunity to seek waiver of court costs. Citing to State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, Thomas argues that the court committed reversible error under Crim.R.43(A), which provides that a defendant be physically present at every stage of the criminal proceeding.

         {¶8} In Joseph, the Supreme Court held that the trial court's failure to notify the defendant that it was imposing court costs was reversible error because "he was denied the opportunity to claim indigency and seek a waiver of the payment of court costs before the trial court." Joseph at ¶ 22. The Supreme Court therefore remanded the case "for the limited purpose" of allowing the defendant to move for a waiver of court costs. Id. at ¶ 23.

         {¶9} Subsequent to Joseph, R.C. 2947.23 was amended to include subdivision (C), which provides that "[t]he court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter." 2011 Am.Sub.H.B. 247. The amendment to R.C. 2947.23 notwithstanding, this court has addressed the imposition of court costs outside the defendant's ...


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