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State v. Morgan

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CHRISTIAN N. MORGAN DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-608584-A

          ATTORNEY FOR APPELLANT Victoria Bader Assistant State Public Defender.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Scott C. Zarzycki Assistant County Prosecutor

          BEFORE: Keough, J., McCormack, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, J.

         {¶1} Defendant-appellant, Christian Morgan, appeals his sentence following a guilty plea. For the reasons that follow, we affirm.

         {¶2} In March 2016, Morgan, age 17, was charged in a juvenile court complaint, which alleged that he committed two second-degree felony offenses of felonious assault, if committed as an adult. It was alleged that during an altercation at a laser tag facility, Morgan assaulted the victim who suffered severe and serious physical harm. Following a hearing, the juvenile court found Morgan not amenable to juvenile court treatment and transferred the case to the general division of the common pleas court.

         {¶3} In August 2016, Morgan was indicted for one count of felonious assault in violation of R.C. 2903.11(A)(1); he subsequently pleaded guilty to attempted felonious assault. At sentencing, the trial court considered a presentence investigation report, the victim's impact statement, and mitigation statements by Morgan and his attorney. The court sentenced Morgan to three years in prison and ordered the stipulated restitution amount of $7, 670.93.

         {¶4} Morgan was granted leave to file a delayed appeal, and he now raises three assignments of error, which will be addressed together where appropriate.

         I. Restitution

         {¶5} In his first assignment of error, Morgan contends that the trial court erred when it imposed a financial sanction without considering his present and future ability to pay the sanction, in violation of R.C. 2929.19(B)(5). He claims in his third assignment of error that he was denied effective assistance of trial counsel because his attorney failed to object when the financial sanction was imposed without any consideration of present and future ability to pay.

         {¶6} R.C. 2929.18(A)(1) permits a trial court, as part of a sentence, to order restitution to the victim of the offender's crime in an amount based on the victim's economic loss. Before imposing a financial sanction, the trial court must consider "the offender's present and future ability to pay the amount of the sanction or fine." R.C. 2929.19(B)(5).

         {¶7} However, the statute does not require the trial court to consider any specific factors in making this determination, and it does not require the trial court to expressly state that it considered a defendant's ability to pay. State v. Aniton, 8th Dist. Cuyahoga No. 102440, 2015-Ohio-4080, ¶ 19, citing State v. Tate, 2d Dist. Montgomery No. 25386, 2013-Ohio-5167, ¶ 52.

"The record should, however, contain 'evidence that the trial court considered the offender's present and future ability to pay before imposing the sanction of restitution.' The trial court may comply with this obligation 'by considering a presentence-investigation report, which includes information about the defendant's age, health, education, and work history.' 'The ...

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