Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Britta M. Barthol
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Frank Romeo Zeleznikar Assistant County
BEFORE: Stewart, J., Keough, A.J., and Boyle, J.
JOURNAL ENTRY AND OPINION
J. STEWART, J.
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
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.
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).
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.
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.
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.
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.
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.
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