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State v. Jones

Court of Appeals of Ohio, Sixth District, Sandusky

June 28, 2019

State of Ohio Appellee
v.
Billy Jones Appellant

          Trial Court No. 18CR566

          Timothy Braun, Sandusky County Prosecuting Attorney, and Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

          Karin L. Coble, for appellant.

          DECISION AND JUDGMENT

          PIETRYKOWSKI, J.

         {¶ 1} Appellant, Billy Jones, appeals from the August 3, 2018 judgment of the Sandusky County Court of Common Pleas convicting him following the acceptance of his guilty plea to Count 3 of the indictment, trafficking in cocaine in the vicinity of a school, a violation of R.C. 2925.03(C)(4)(d), a second-degree felony. Appellant was immediately sentenced to a five-year mandatory term of imprisonment, a $2, 500 fine, and unspecified court costs. The trial court journalized a nunc pro tunc sentencing judgment on October 22, 2018 adding the following paragraph: "By agreement of the parties the defendant shall pay restitution to the Sandusky County Drug Task Force in the amount of $1, 750." For the reasons which follow, we affirm in part and reverse in part.

         {¶ 2} Appellant was indicted in a multi-count indictment for selling cocaine from a residence located on Stilwell Avenue, Fremont, Ohio, after execution of a search warrant. As part of a plea agreement, appellant entered a guilty plea to Count 3 and the remaining counts were dismissed. At the sentencing hearing, appellant acknowledged to the court that he had agreed to pay $1, 750 in restitution to the Sandusky County Task Force as part of his plea agreement and the parties executed the agreement at the hearing. The trial court never imposed restitution as part of the sentence at the time of the sentencing hearing, but included an order of restitution in its nunc pro tunc sentencing judgment.[1]

         {¶ 3} On appeal, appellant asserts the following assignments of error:

Assignment of Error One: Restitution should be vacated, as the trial court did not impose restitution at the sentencing hearing and only imposed it in the judgment entry.
Assignment of Error Two: The fine of $2, 500 is excessive and an abuse of discretion when appellant was twice found indigent during proceedings and he has no ability to pay.
Assignment of Error Three: The trial court's order to pay unspecified "costs" must be reversed for failure to find Jones had the ability to pay.
Assignment of Error Four: Trial counsel rendered ineffective assistance of counsel by failing to file an affidavit of indigency for purposes of fines and object to the fines and cost imposed.

         {¶ 4} In his first assignment of error, appellant argues that although he agreed to pay restitution and verbally acknowledged the agreement at the plea hearing, the court erred in failing to actually impose restitution at the hearing. Therefore, appellant argues the order of restitution violates Crim.R. 43(A) and appellant's constitutional due process rights.

         {¶ 5} Assuming arguendo that R.C. 2953.08(D)(1) does not bar the review of the jointly-recommended sentence, we find appellant was not prejudiced by the court's failure to impose the restitution order at the time of the sentencing hearing.

         {¶ 6} Under both the federal and Ohio Constitutions and Crim.R. 43(A), the defendant has the right to be present at the time of sentencing. Due Process Clause of the Fifth and Fourteenth Amendments; Article I, Section 10 of the Ohio Constitution; State v. Ogletree, 2d Dist. Montgomery No. 9768, 1987 WL 15731, *2 (Aug. 14, 1987) (Crim.R. 43(A) embodies the expanded scope of the due process clause).[2] However, that right "'is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" State v. Wilks,154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 215, quoting Snyder v. Massachusetts,291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934). See also State v. Armas, 12th Dist. Clermont No. CA2004-01-007, 2005-Ohio-2793, ΒΆ 25 (applying the same standard and holding that a violation of Crim.R. 43(A) is not a structural error and is subject to the harmless error analysis if no ...


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