CASE FROM COMMON PLEAS COURT DATE JOURNALIZED
Timothy Young, Ohio Public Defender, and Nikki Trautman
Baszynski, Assistant Public Defender, Columbus, Ohio, for
Kelley, Adams County Prosecuting Attorney, and Michele L.
Harris, Adams County Assistant Prosecuting Attorney, West
Union, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
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).
assigns the following errors for review:
ASSIGNMENT OF ERROR:
TRIAL COURT ERRED IN IMPOSING A $1, 000.00 FINE UPON MR.
ASSIGNMENT OF ERROR:
TRIAL COURT ERRONEOUSLY ASSESSED COSTS FOR DISMISSED
ASSIGNMENT OF ERROR:
LYKINS WAS ASSESSED COSTS THAT WERE NOT AUTHORIZED BY
ASSIGNMENT OF ERROR:
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.
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.
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
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.
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 ...