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State v. Lykins

Court of Appeals of Ohio, Fourth District, Adams

December 14, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
STEPHEN D. LYKINS, Defendant-Appellant.

         CRIMINAL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED

          Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Public Defender, Columbus, Ohio, for appellant.

          David Kelley, Adams County Prosecuting Attorney, and Michele L. Harris, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge

         {¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. The court found Stephen D. Lykins, defendant below and appellant herein, guilty of pandering obscenity involving a minor in violation of R.C. 2907.321(A)(2).[1]

         Appellant assigns the following errors for review:

         FIRST ASSIGNMENT OF ERROR:

         "THE TRIAL COURT ERRED IN IMPOSING A $1, 000.00 FINE UPON MR. LYKINS."

         SECOND ASSIGNMENT OF ERROR:

         "THE TRIAL COURT ERRONEOUSLY ASSESSED COSTS FOR DISMISSED CHARGES."

         THIRD ASSIGNMENT OF ERROR:

         "MR. LYKINS WAS ASSESSED COSTS THAT WERE NOT AUTHORIZED BY LAW."

         FOURTH ASSIGNMENT OF ERROR:

         "THE CLERK OF COURTS ISSUED IMPROPERLY, AND WITHOUT AUTHORITY, AN EXECUTION AGAINST MR. LYKINS'S PROPERTY FOR BOTH FINES AND THE COSTS OF PROSECUTION."

         {¶ 2} After an Adams County grand jury returned an indictment that charged appellant with three counts of pandering obscenity involving a minor. Subsequently, appellant agreed to plead guilty to one count of pandering obscenity involving a minor and the trial court sentenced appellant to serve six years in prison. The court also (1) classified appellant a tier II sex offender/child victim offender registrant; (2) ordered appellant "to pay a $1, 000.00 fine currently in [appellant]'s bank account" and to "pay all costs of the prosecution of this action for which execution is awarded, and any fees permitted pursuant to [R.C] 2929.18(A)(4)." The court "specifically [found] in the imposition of financial sanctions that [appellant] has the past, present and future income ability and/or potential to satisfy all financial sanctions imposed." This appeal followed.[2]

         I

         {¶ 3} In his first assignment of error, appellant contends that the trial court erred by imposing a $1, 000 fine. He asserts that the court considered only whether his bank account held sufficient funds to pay the fine. Appellant further argues that the trial court should not have considered his social security benefits when evaluating his ability to pay. Appellant claims that his social security benefits essentially are sacrosanct and cannot be considered when a sentencing court evaluates a criminal defendant's ability to pay a fine.

         A

         PLAIN ERROR

         {¶ 4} We first observe that appellant did not object at sentencing to the trial court's imposition of a $1, 000 fine. He further did not assert that he lacked the ability to pay the fine, that the court could not consider the funds in his bank account, or that the court could not consider his social security benefits when evaluating his ability to pay. His failure to raise these issue before the trial court means that he forfeited the right to raise them on appeal. State v. Anderson, 4th Dist. Scioto No. 15CA3696, 2016-Ohio-7252, ¶34; State v. Newman, 2015-Ohio-4283, 45 N.E.3d 624 (4th Dist.), ¶40, citing State v. Mendez, 7th Dist. Mahoning No. 13MA86, 2014-Ohio-2601, 2014 WL 2725935, ¶11, quoting State v. Potts, 7th Dist. Harrison No. 07HA4, 2008-Ohio-643, 2008 WL 435005, ¶7 ("[A]n offender who does not raise his ability to pay a financial sanction at the time the sanction is imposed waives any argument concerning his ability to pay on direct appeal."). We may, however, review appellant's assignment of error for plain error. Anderson; Newman, citing State v. Leslie, 4th Dist. Hocking Nos. 10CA17 and 10CA18, 2011-Ohio-2727, 2011 WL 2225152, ¶27 (applying plain error rule when defendant failed to object to trial court's restitution order); accord State v. Thomas, __ Ohio St.3d __, 2017-Ohio-8011, __ N.E.3d. __, ¶32 (stating that Crim.R. 52(B) allows court to recognize plain error "notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court").

         {¶ 5} Crim.R. 52(B) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B) thus permits a court to recognize plain error if the party claiming error establishes (1) that "'an error, i.e., a deviation from a legal rule'" occurred, (2) that the error is a plain or "'an "obvious" defect in the trial proceedings, '" and (3) that this obvious error affected substantial rights, i.e., the error "'must have affected the outcome of the trial.'" State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); accord Thomas at ¶¶32-33. For an error to be "plain" or "obvious, " the error must be plain "under current law" "at the time of appellate consideration." Johnson v. United States, 520 U.S. 461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord Henderson v. United States, 568 U.S. 266, 279, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013); Barnes, 94 Ohio St.3d at 27; State v. G.C., 10th Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶14. Even when, however, a defendant demonstrates that a plain error or defect affected his substantial rights, the Ohio Supreme Court has "'admonish[ed] courts to notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice."'" Rogers at ¶23, quoting Barnes, 94 Ohio St.3d at 27, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

         {¶ 6} In the case sub judice, as we explain below, we do not believe appellant has established that the trial court plainly erred by imposing the $1, 000 fine.

         B

         STANDARD OF REVIEW

         {¶ 7} R.C. 2953.08(G)(2) defines appellate review of felony sentences and provides in relevant part:

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of ...

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