Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-608584-A
ATTORNEY FOR APPELLANT Victoria Bader Assistant State Public
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Scott C. Zarzycki Assistant County
BEFORE: Keough, J., McCormack, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.
Defendant-appellant, Christian Morgan, appeals his sentence
following a guilty plea. For the reasons that follow, we
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.
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.
Morgan was granted leave to file a delayed appeal, and he now
raises three assignments of error, which will be addressed
together where appropriate.
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.
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).
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