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State v. Schaeffer

Court of Appeals of Ohio, Third District, Seneca

June 24, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CHARLES V. SCHAEFFER, DEFENDANT-APPELLANT.

          Appeal from Seneca County Common Pleas Court Trial Court No. 14 CR 0124

          Jennifer L. Kahler for Appellant

          Derek W. DeVine for Appellee

          OPINION

          WILLAMOWSKI, J.

         {¶1} Defendant-appellant Charles V. Schaeffer ("Schaeffer") brings this appeal from the judgment of the Court of Common Pleas of Seneca County imposing restitution in the amount of $41, 530 and ordering Schaeffer to pay counsel fees for his appointed counsel. Schaeffer claims on appeal that the amount of restitution was not supported by adequate evidence and that the trial court erred by requiring him to pay court appointed counsel fees without first considering his present and future ability to pay. For the reasons set forth below, the judgment is affirmed in part and reversed in part.

         {¶2} In October 2014, a jury convicted Schaeffer of four counts: 1) Complicity to Aggravated Arson in violation of R.C. 2923.03(A)(2), (F) and 2909.02(A)(1), (B)(2), a felony of the first degree; 2) Complicity to Aggravated Murder in violation of R.C. 2923.03(A)(2), (F) and 2903.01(B), (F), a special felony; 3) Complicity to Murder in violation of R.C. 2923.03(A)(2), (F) and 2903.02(B), (D), a special felony; and 4) Complicity to Attempted Murder in violation of R.C. 2923.03(A)(2), (F) and 2923.02(A), (E)(1), a felony of the first degree. Doc. 53. On October 31, 2014, the trial court sentenced him to an aggregate prison term of 25 years. Id. The trial court also ordered Schaeffer to pay restitution in the amount of $54, 429.45 and to pay all costs of prosecution, including appointed counsel costs. Id. Schaeffer appealed from this judgment. Doc. 57. On August 31, 2015, this court affirmed the convictions on Counts 1 and 3, but reversed the convictions on Counts 2 and 4. State v. Schaeffer, 3d Dist. 13-14-34, 2015-Ohio-3531, 41 N.E.3d 813. Although the issue of restitution and the failure to hold a hearing in regards to ability to pay was raised as an assignment of error in that appeal, it was declared moot due to the fact that a new sentencing hearing would be required which necessitated its reconsideration. Id. at ¶ 92.

         {¶3} On January 19, 2016, the State filed a motion to dismiss count 2 of the indictment without prejudice. Doc. 73. The State claimed that since Schaeffer was already serving an indefinite term of fifteen years to life, proceeding with a trial on count 2 "would not serve the interest of justice or judicial economy." Id. The trial court granted the motion on January 21, 2016. Doc. 74. On March 19, 2018, the trial court sua sponte dismissed count 4 of the indictment. Doc. 76.

         {¶4} On February 1, 2019, a resentencing hearing was held. Doc. 88 and 90[1]. At the hearing, the trial court ordered Schaeffer to serve an aggregate prison term of fifteen years to life. Id. The trial court also ordered Schaeffer to pay restitution in the amount of $41, 530.00. Id. The trial court noted the following:

Counsel for defendant reminded the Court that defendant did not object to the restitution amount at the time of sentence. Further, defendant does not have the ability to pay restitution in this case due to his indefinite incarceration in a state penal institution.

Id. at 3. Then the trial court ordered Shaeffer to pay court appointed counsel fees. Id. At no place in either the original or the nunc pro tunc judgment entries is there any affirmative indication of Schaeffer's ability to pay the fees and restitution either now or in the future. Schaeffer filed a notice of appeal from this entry. Doc. 91. On appeal, Schaeffer raises the following assignments of error.

First Assignment of Error
The sentence should be reversed because there was inadequate evidence to support the amount ordered.
Second Assignment of Error
The sentence should be reversed because the trial court erred in ordering [Schaeffer] to pay court appointed counsel fees without first considering [Schaeffer's] ...

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