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State v. Wertman

Court of Appeals of Ohio, Fifth District, Ashland

December 2, 2019

STATE OF OHIO Plaintiff-Appellee
v.
DAVID M. WERTMAN Defendant-Appellant

          Criminal appeal from the Ashland County Court of Common Pleas, Case No. 15CRI181

         JUDGMENT: Affirmed in part; Reversed in part; Vacated

          For Plaintiff-Appellee CHRISTOPHER R. TUNNELL ASHLAND COUNTY PROSECUTOR BY: COLE F. OBERLI ASSISTANT PROSECUTOR

          For Defendant-Appellant BRIAN A. SMITH

          Hon. W. Scott Gwin, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.

          OPINION

          Gwin, P.J.

         {¶1} Appellant David M. Wertman ["Wertman"] appeals the imposition of sentence following a Community Control Violation hearing in the Ashland County Court of Common Pleas.

         Facts and Procedural History

         {¶2} On October 30, 2015, Wertman was indicted by the Ashland County Grand Jury on one count of Engaging in a Pattern of Corrupt Activity, in violation of R.C. 2923.32(A)(3), a felony of the second degree.

         {¶3} On January 15, 2016, Wertman entered a plea of guilty to one count of Attempted Engaging in a Pattern of Corrupt Activity, in violation of R. C. 2923.32(A)(3) and 2923.02(A), a felony of the fourth degree. See, State v. Wertman, 5th Dist. Ashland No. 18 COA 026, 2019-Ohio-7 [Wertman I "], ¶7.

         {¶4} On July 22, 2016, the trial court sentenced Wertman to community control for three years, fines, forfeiture of certain personal property, and a license suspension. Wertman I, ¶8. The trial court also informed Wertman of violations of his conditions could result in a sanction of up to eighteen months in the custody of the Ohio Department of Rehabilitation and Correction. Id.

         {¶5} On September 13, 2016, a Community Control Violation was filed against Wertman alleging that he overdosed on heroin.

         {¶6} On October 5, 2016, Wertman admitted to his violation and was sentenced to two (2) days in the Ashland County Jail. See, Wertman I, ¶10.

         {¶7} On April 27, 2018, a second Community Control Violation was filed against Wertman. It alleged eight violations. On May 18, 2018, pursuant to a plea deal, Wertman admitted to Counts 1, 2, 6, and 7. See Wertman I, ¶12. The other charges were dismissed. The trial court sentenced Wertman to an additional thirty days in the Ashland County Jail "unless and until" Wertman was admitted to CROSSWEAH. Id.

         {¶8} We affirmed the trial court's decision in Wertman I.

         {¶9} On January 3, 2019, Wertman's probation officer filed two alleged community control violations with the trial court. Wertman admitted to Count One of the alleged violations, with the state agreeing to dismiss the remaining count. On May 10, 2019, following a sanctions hearing, the trial court sentenced Wertman to 6 months in prison, with credit for 42 days served, and revoked his community control.

         Assignments of Error

         {¶10} Wertman raises four Assignments of Error, {¶11} "I. THE TRIAL COURT'S SENTENCE, IMPOSING FEES ON APPELLANT PURSUANT TO R.C. 2949.091 AND R.C. 2743.70, WAS CONTRARY TO LAW.

         {¶12} "II. THE TRIAL COURT'S SENTENCE, IMPOSING THE COURT-APPOINTED COUNSEL APPLICATION FEE ON APPELLANT PURSUANT TO R.C. 120.36 IN A POSTCONVICTION PROCEEDING, WAS CONTRARY TO LAW.

         {¶13} "III. THE TRIAL COURT'S SENTENCE, ORDERING THAT APPELLANT PAY FEES IMPOSED UNDER R.C. 2949.091, R.C. 120.36, AND R.C. 2743.70, WAS NOT SUPPORTED BY THE RECORD.

         {¶14} "IV. THE FAILURE OF APPELLANT'S TRIAL COUNSEL TO SEEK A WAIVER OF COURT COSTS, AND OF FEES IMPOSED UNDER R.C. 2949.091, R.C. 120.36, AND R.C. 2743.70, AS PART OF APPELLANT'S SENTENCE, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL."

         I.

         {¶15} In his First Assignment of Error, Wertman contends that he was already ordered to pay the fees imposed under R.C. 2949.091 and R.C. 2743.70 as part of his original sentence in this case. He argues that because the fees are to be imposed per case, the trial court could not impose those same fees a second time for the sentence for community control violation. [Appellant's Brief at 8].

         STANDARD OF APPELLATE REVIEW.

         {¶16} Wertman did not object or raise this error in the trial court. In criminal cases where an objection is not raised at the trial court level, "plain error" is governed by Crim. R. 52(B), which states, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." An alleged error "does not constitute a plain error ... unless, but for the error, the outcome of the trial clearly would have been otherwise." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph two of the syllabus.

         {¶17} "[A]n appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Marcus, 560 U.S. 258, 262130 S.Ct. 2159, 176 L.Ed.2d 1012(2010) (internal quotation marks and citations omitted).

         {¶18} The defendant bears the burden of demonstrating that a plain error affected his substantial rights. United States v. Olano, 507 U.S. at 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508(1993); State v. Perry,101 Ohio St.3d 118, 120802 N.E.2d 643(2004). Even if the defendant satisfies this burden, an appellate court has discretion to disregard the error. State v. Barnes,94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); State v. ...


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