Opinion
No. 109007
09-17-2020
STATE of Ohio, Plaintiff-Appellee, v. Daveion BROWN, Defendant-Appellant.
JOURNAL ENTRY AND OPINION
: {¶1} Defendant-appellant Daveion Brown appeals his convictions after he pled guilty to one count of rape and two counts of robbery. Brown contends that his guilty plea to rape was not knowing, intelligent and voluntary because the trial court failed to inform him about sex-offender registration, community-notification requirements and residential restrictions as a Tier III sex offender prior to accepting his guilty plea. Brown contends that his guilty pleas to rape and robbery were not knowing, intelligent and voluntary because the trial court failed to adequately explain and ensure he understood postrelease control sanctions prior to accepting his guilty pleas. Brown also contends that the trial court erred by ordering him to pay fines and court costs without considering his ability to pay them and that he is entitled to jail-time credit for the time he spent in pretrial custody. Finally, Brown contends that the trial court erred in imposing consecutive sentences because it failed to make all of the necessary findings for the imposition of consecutive sentences and because the imposition of consecutive sentences is not supported by the record.
{¶2} For the reasons that follow, we vacate Brown's guilty plea to the rape count and remand for further proceedings as to that count. We also remand for the trial court to calculate the amount of jail-time credit to which Brown is entitled and for the issuance of a nunc pro tunc order incorporating all of the findings the trial court made in support of the imposition of consecutive sentences at the sentencing hearing in its sentencing journal entry. We affirm the trial court in all other respects.
Procedural History and Factual Background
{¶3} On February 8, 2019, a Cuyahoga County Grand Jury indicted Brown on six counts: one count of rape in violation of R.C. 2907.02(A)(2), a first-degree felony, with a sexually violent predator specification and one-year and three-year firearm specifications; two counts of kidnapping in violation of R.C. 2905.01(A)(2), first-degree felonies, with a sexually violent predator specification, a sexual motivation specification and one-year and three-year firearm specifications; one count of felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with a sexually violent predator specification, a sexual motivation specification and one-year and three-year firearm specifications and two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), first-degree felonies, with one-year and three-year firearm specifications.
{¶4} The charges arose out of an incident that occurred on or about January 5, 2019 involving Brown, a male accomplice (who has never been identified) and two male victims. Brown and the victims knew one another because they attended the same school.
{¶5} The males went to go smoke in the "cut" behind 9217 Holton Avenue in Cleveland. Once they reached the "cut," Brown pulled out a gun. Brown held the victims at gunpoint and made the two victims take off their clothing and give up their cell phones. Brown's accomplice took the clothing and cell phones and left. Brown pistol-whipped one of the victims and made both victims kneel before him. Brown asked the victims if they were "ready for the street life" and told them, "Ya'll going to suck my d*** or die."
{¶6} While Brown forced his penis into the mouth of one of the victims, the other victim ran off, naked, to a nearby motorcycle club. The second victim was also eventually able to get away and ran to the motorcycle club, and someone called and reported the incident to the police. The incident was videotaped and the video was later posted on Instagram, where it was seen by many students at the victims' school. Brown was arrested on January 30, 2019.
{¶7} Brown initially pled not guilty to all charges. The parties thereafter reached a plea agreement. Pursuant to the plea agreement, Brown agreed to plead guilty to an amended count of rape in violation of R.C. 2907.02(A)(2), a first-degree felony, with a three-year firearm specification and two amended counts of robbery in violation of R.C. 2911.02(A)(2), second-degree felonies. In exchange for his guilty pleas, the remaining counts and specifications would be nolled.
{¶8} On July 29, 2019, the trial court held a change-of-plea hearing. After the state and defense counsel set forth the terms of the plea agreement on the record, defense counsel indicated that he had "discussed this matter with the defendant," "[n]ot only factually [but also] about the legal rights that he has and what rights he would be waiving by entering the outlined plea to the court," that "no threats or promises ha[d] been made to get him to accept this level of responsibility" and that he believed Brown would be entering his guilty pleas "knowingly and voluntarily and intelligently." The trial judge then proceeded with the plea colloquy.
{¶9} In response to the trial judge's preliminary questions, Brown indicated that he understood what had been stated on the record by the state and defense counsel regarding the plea agreement, that he was 19 years old and a United States citizen, that he had completed the eleventh grade, that he was able to read and write and that he was not under the influence of any drugs or alcohol. Brown acknowledged that he was satisfied with the representation he had received from his counsel.
{¶10} The trial court advised Brown of his constitutional rights and confirmed that he understood the rights he would be waiving by entering his guilty pleas. The trial court then identified each of the counts to which Brown would be pleading guilty and set forth the potential prison sentences and fines he would face on each count by pleading guilty.
{¶11} With respect to postrelease control, the trial judge stated, after advising Brown of the potential prison sentence and fine he would face by pleading guilty to rape:
THE COURT: Post Release Control will be mandatory. It would have to be for a period of five years. There could be no reduction. Do you understand that? I'll explain Post Release Control to you at later time. Do you understand that?
THE DEFENDANT: Yes, your Honor.
{¶12} The trial court further stated, after advising Brown regarding the sentences and fines he would face by pleading guilty to robbery:
THE COURT: Upon your release from prison, the Ohio Parole Board would impose a period of Post Release Control of five years. There would be no reduction. They may impose conditions and sanctions.
Should you decide to commit an act that causes you to be found in violation of your Post Release Control, you can be remanded to an Ohio penal institution for an additional fifty percent of your original sentence. Do you understand that?
THE DEFENDANT: No, your Honor.
THE COURT: Okay. That's kind of confusing. Okay. You would have to serve the three-year period for the gun specification and then any underlying sentence.
Remember that the three-year period has to be consecutive to any other sentence that you would receive.
After you complete the three-year sentence, then you would begin to serve your other sentence which would be underlying.
After you complete that, then depending on what your sentence is, and the length of your sentence, you would meet the Parole Board. Because you have a Felony 1 and a Felony 2, you would meet — somebody from the parole would meet, a parole member and — parole board member, and you would meet a member of the Parole Board and they have assistants that help them, and they're not Parole Board members but they are — it's not a parole officer. A hearing officer, okay?
You would, because it's a Felony 1 and a Felony 2, you, at the conclusion of your sentence, would meet someone actually from the Parole Board. You'd meet with at least one Parole Board officer and a hearing officer.
Now, at that time, they would have your entire transcript. That means that everything that's been worked up here, you had an evaluation with the psych department, plus they would do an evaluation here and all of that would go down.
They would have all of that information, plus they would do their own investigation. Those members of the Parole Board would then determine what your conditions are for release.
They would give you certain conditions. They would say, you know, you can go here, or you can't go here. You can associate here. You can't do this.
They would have you — they would place you on what's called conditions for release, and they would also review with you the possible sanctions in the event that you committed a violation.
Do you understand that?
THE DEFENDANT: Yes, your Honor.
* * *
THE COURT: Now, based on your questions and everything that you asked, does that change your mind at all about where you are and what we're doing?
THE DEFENDANT: No, your Honor.
{¶13} Brown pled guilty to each of the charges in accordance with the plea agreement and acknowledged that he was, in fact, guilty of the charges to which he had pled guilty. Both defense counsel and the state indicated that they believed the trial court had complied with Crim.R. 11, and the trial court found that Brown had "knowingly and voluntarily entered his pleas, with a full understanding of his Constitutional and trial rights." The trial court accepted Brown's guilty pleas and dismissed the remaining counts and specifications with which he had been charged.
{¶14} After Brown entered his guilty pleas and the trial court accepted those guilty pleas, the trial court informed Brown that he would be classified as a Tier III sex offender. The trial court did not explain that classification or any of the consequences of that classification at that time. Rather, the trial court simply stated:
THE COURT: Oh, you know what? I need to go — Mr. Brown, as part and parcel of your plea negotiations, at the appropriate time, the Court will review with you that you will be classified as a sex offender, as a Tier I sex offender. Do you understand that?
[THE STATE]: Tier III, your Honor.
THE COURT: Tier III. A Tier III sex offender. Do you understand that? And the Court will review with you at sentencing
your responsibilities and obligations. Do you understand that?
THE DEFENDANT: Yes, your Honor.
{¶15} The trial court referred Brown to the probation department for a presentencing investigation and report ("PSI") and the sentencing hearing was scheduled for the following month.
{¶16} Brown was sentenced on August 21, 2019. After reviewing the PSI, hearing from Brown, family members of one of the victims, the state and defense counsel and viewing the video that had been posted on Instagram regarding the incident, the trial court sentenced Brown to an aggregate sentence of 30 years. As to the rape count, the trial court sentenced Brown to three years on the firearm specification to be served prior to and consecutively to 11 years on the underlying offense. As to the two robbery counts, the trial court sentenced Brown to eight years on each count, to be served consecutively to each other and to the sentence imposed on the rape count. The trial court also imposed five years of mandatory postrelease control, an aggregate fine of $750, i.e., $250 on each of the three counts, and court costs and Brown was classified as a Tier III sex offender.
{¶17} In imposing consecutive sentences, the trial court made the following findings at the sentencing hearing:
The Court finds that consecutive sentences are necessary to protect the public from future crimes. The Court does take into consideration his lengthy prior history. The Court finds consecutive sentences are necessary to punish the offender. The Court finds that consecutive sentences are not disproportionate to the seriousness of the offender's conduct. The Court finds that consecutive sentences are not disproportionate to the danger the offender poses to the public.
I think that that particular element is important because of the impact it's had on not only the victim who has now run away from home, but on his mother and his sister who were present in court, and as they have indicated for the Court the impact that this has had on them, that they've personally been impacted by what this defendant did to their brother and son.
The Court further finds that the defendant's prior history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crime by the offender.
{¶18} In its sentencing journal entry, the trial court set forth the following findings in support of the imposition of consecutive sentences:
The consecutive sentence is necessary to protect the public from future crime. The consecutive sentence is necessary to punish the offender. The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶19} Brown appealed, raising the following five assignments of error for review:
Assignment of Error I: The appellant's guilty plea to rape was invalid, where it subjected him to sex offender registration and community notification requirements and residential restrictions as Tier III sex offender, but the trial court failed to inform appellant of those implications during the plea colloquy.
Assignment of Error II: The appellant's guilty plea to rape and two counts of aggravated robbery was invalid, where the trial court failed to explain post-release control sanctions and ensure that appellant understood them.
Assignment of Error III: The trial court erred and abused [its] discretion in imposing fines and court costs on appellant without first considering appellant's ability to pay.
Assignment of Error IV: The trial court erred by failing to credit appellant for the time he spent in pretrial custody.
Assignment of Error V: The trial court failed to make the requisite factual findings required by R.C. 2929.14(C)(4) in the sentencing judgment entry.
{¶20} On August 11, 2020, this court, sua sponte, ordered the parties to brief the issue of "whether the consecutive 30-year prison sentence imposed upon Brown, who was 18 years old when he committed the crimes that are the subject of this appeal, is supported by the record or is contrary to law." In response, Brown filed a supplemental brief, setting forth a sixth assignment of error for review:
Assignment of Error VI: The consecutive 30-year prison sentence imposed upon Brown, who was 18-years old when he committed the crimes, is contrar[y] to law and is not supported by the record.
The state also submitted a supplemental brief addressing the issue.
Law and Analysis
Knowing, Intelligent and Voluntary Guilty Pleas
{¶21} Brown's first and second assignments of error are interrelated. Accordingly, we address them together.
{¶22} In his first assignment of error, Brown contends that his guilty plea to the rape count was invalid because the trial court failed to advise him during the Crim.R. 11(C)(2) plea colloquy that his guilty plea would subject him to registration requirements, community-notification requirements and residency restrictions as a Tier III sex offender. In his second assignment of error, Brown contends that his guilty pleas to all three counts are invalid because the trial court failed to explain postrelease control sanctions and ensure that he understood them. He requests that we vacate his guilty pleas.
{¶23} "Due process requires that a defendant's plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant's plea is invalid." State v. Bishop , 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10, citing State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25 ; see also State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996) ("When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.").
{¶24} Crim.R. 11(C) prescribes the process a trial court must follow before accepting a guilty plea to a felony. Bishop at ¶ 11, citing State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. Under Crim.R. 11(C)(2), a trial court shall not accept a guilty plea in a felony case without personally addressing the defendant and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶25} The purpose of Crim.R. 11(C) is " ‘to convey to the defendant certain information so that he [or she] can make a voluntary and intelligent decision whether to plead guilty.’ " State v. Woodall , 8th Dist. Cuyahoga No. 102823, 2016-Ohio-294, 2016 WL 515813, ¶ 12, quoting State v. Ballard , 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). At issue in this case is compliance with Crim.R. 11(C)(2)(a), i.e., that the trial court "[d]etermin[e] that the defendant is making the plea voluntarily, with understanding of the * * * maximum penalty involved."
{¶26} As a general matter, "a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C)," i.e., that " ‘the plea would not have otherwise been made.’ " State v. Dangler , Slip Opinion No. 2020-Ohio-2765, ––– N.E.3d ––––, ¶ 16, quoting State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). There are, however, two exceptions to this rule: (1) when the trial court fails to explain the constitutional rights that a defendant waives by pleading guilty and (2) when the trial court otherwise "complete[ly]" fails to comply with a requirement of Crim.R. 11(C). Dangler at ¶ 14-15. If the trial court completely fails to comply with a requirement of Crim.R. 11(C)(2), the plea must be vacated; a showing of prejudice is not required. Dangler at ¶ 15 ; Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 32. Whether the trial court accepted a plea in compliance with Crim.R. 11(C)(2) is subject to de novo review, based on the totality of the circumstances. See, e.g., State v. Baker , 8th Dist. Cuyahoga No. 108301, 2020-Ohio-107, 2020 WL 242411, ¶ 16 ; State v. Jackson , 8th Dist. Cuyahoga No. 99985, 2014-Ohio-706, 2014 WL 802050, ¶ 6.
Sex-Offender Classification
{¶27} R.C. Chapter 2950 sets forth the registration requirements, community-notification requirements and residency restrictions that apply to Tier III sex offenders. Because sexual-offender classification under R.C. Chapter 2950 is punitive in nature, this court has held that it must be addressed during a Crim.R. 11(C)(2) plea colloquy as part of "the maximum penalty involved." Baker at ¶ 17 ; State v. Brown , 2019-Ohio-527, 132 N.E.3d 176, ¶ 7 (8th Dist.) ; State v. Allen , 8th Dist. Cuyahoga No. 97820, 2013-Ohio-258, 2013 WL 408588, ¶ 11 ; State v. Creed , 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, 2012 WL 2150349, ¶ 15-16.
{¶28} In Dangler , the defendant sought to have his no-contest plea to rape vacated on the ground that the trial court had not complied with Crim.R. 11(C)(2)(a). Slip Opinion No. 2020-Ohio-2765, ––– N.E.3d ––––, at ¶ 6. The trial court had informed the defendant that he would be classified as a Tier III sex offender and would be required to register for the rest of his life; however, the defendant argued that because the trial court did not inform him of all of the registration requirements, residency restrictions and community-notification requirements associated with his status as a sex offender prior to the entry of his plea, his no-contest plea was not knowing and voluntary. Id. at ¶ 1, 6-7. "[P]roceed[ing] with the assumption that the [sex-offender classification] scheme as a whole constitutes a penalty for purposes of Crim.R. 11," the Ohio Supreme Court concluded that because the trial court had advised the defendant that he would be subject to the registration requirements of the sex-offender classification scheme, the trial court did not "completely fail" to comply with Crim.R. 11(C)(2)(a)'s maximum-penalty-advisement requirement and the defendant was "entitled to have his conviction vacated for lack of a more complete explanation only if he demonstrates prejudice." Id. at ¶ 2, 20, 22. The court held that because the defendant did not establish prejudice, he was not entitled to have his no-contest plea vacated for failure to comply with Crim.R. 11(C)(2)(a). Id. at ¶ 24.
{¶29} In this case, however, the record is clear that the trial court did not even mention sex-offender classification until after it accepted Brown's guilty pleas. Even then, however, the trial court simply told Brown that he would be classified as a Tier III sex offender. The trial court did not inform Brown that there would be any consequences as a result of his sex-offender status.
{¶30} This case is akin to our recent decisions in Brown , 2019-Ohio-527, 132 N.E.3d 176, and Baker , 2020-Ohio-107. In Brown , the defendant was classified as a Tier II sex offender after he pled guilty to conspiracy to commit trafficking in persons. Id. at ¶ 2. The trial court failed to inform the defendant, prior to the entry of his guilty plea, that he would be classified as a sexual offender by virtue of his guilty plea or regarding any of the consequences associated with his sex-offender classification. Id. at ¶ 6-7, 12. This court found that the trial court's "omission of any reference to sexual offender classification" at the defendant's change-of-plea hearing constituted a "complete failure to comply with Crim.R. 11" and that the defendant's guilty plea was, therefore, void. Id. at ¶ 13-14.
{¶31} In Baker , the trial court informed the defendant, prior to the entry of his guilty pleas, only that the rape count to which he would be pleading guilty was a "Tier 3 sex offense." Baker , 2020-Ohio-107, ¶ 5. The trial court provided no explanation of what that meant or any indication that the fact that he would be pleading guilty to a "Tier 3 sex offense" had any additional penalties or consequences beyond those the trial court had already identified, stating only "we'll go into that later." Id. at ¶ 5, 22. However, the trial court did not "go into that" before the defendant entered, and the trial court accepted, his guilty pleas. Id. at ¶ 22. Because there was a complete failure to comply with Crim.R. 11(C)(2)(a) as it related to the defendant's sex offender status, this court held that the defendant was not required to show that he was prejudiced by the trial court's failure to comply and that the defendant's guilty plea to the rape count must be vacated. Id. at ¶ 25 ; see also State v. Wallace , 2019-Ohio-1005, 132 N.E.3d 1317, ¶ 9-19 (10th Dist.) (trial court completely failed to comply with Crim.R. 11(C)(2)(a) where it did not inform defendant that as a result of his guilty plea he would be classified as a Tier III sex offender and would be subject to registration, community notification and verification requirements); State v. Huff , 7th Dist. Belmont No. 13 BE 37, 2014-Ohio-5513, 2014 WL 7145444, ¶ 2, 15, 20-22, 27 (defendant's no contest plea vacated based on trial court's complete failure to comply with Crim.R. 11(C)(2)(a) where trial court failed to inform defendant during plea colloquy that he would be required to register as a sex offender as a consequence of his plea). {¶32} A similar result is warranted in this case as to Brown's guilty plea to the rape count. Because there was a complete failure to comply with Crim.R. 11(C)(2)(a) as it relates to Brown's sex offender status, Brown was not required to show that he was prejudiced by the trial court's failure to comply. Dangler , Slip Opinion No. 2020-Ohio-2765, ––– N.E.3d ––––, ¶ 15. As such, Brown's guilty plea to the rape count must be vacated. Baker at ¶ 25 ; Brown , 2019-Ohio-527, 132 N.E.3d 176, at ¶ 13-14. We sustain Brown's first assignment of error.
Based on our resolution of Brown's first assignment of error, his remaining assignments of error are moot to the extent they relate to the rape count. Accordingly, we address those assignments of error only to the extent they relate to the robbery counts.
Postrelease Control
{¶33} In contrast to the trial court's complete failure to address Brown's sex-offender status, the record reflects that the trial court did provide some explanation of postrelease control to Brown prior the entry of his guilty pleas. Although the trial court's explanation of postrelease control could have been clearer, the trial court advised Brown that he would be subject to five years' postrelease control, that it was mandatory, i.e., that "[t]here could be no reduction," and that, if he violated the terms or conditions of postrelease control that he could "be remanded to an Ohio penal institution for an additional fifty percent of [his] original sentence." Although Brown contends the trial court "did not ensure" that Brown understood postrelease control, after the trial court provided a further explanation, Brown indicated that he understood.
{¶34} Even assuming the trial court did not fully or substantially comply with Crim.R. 11(C)(2)(a) as it relates to postrelease control, because the trial court did not completely fail to comply with Crim.R. 11(C)(2)(a) as it relates to postrelease control, Brown needed to establish that he was prejudiced by the trial court's failure to fully or substantially comply, i.e., that he would not have otherwise pled guilty to the offenses at issue, for his guilty pleas to be vacated. Dangler , Slip Opinion No. 2020-Ohio-2765, ––– N.E.3d ––––, at ¶ 13-16 ; see also Bishop , 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, at ¶ 19 (" ‘If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect.’ "), quoting Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 32. "Prejudice must be established ‘on the face of the record.’ " Dangler at ¶ 24, quoting Wagner v. Roche Laboratories , 85 Ohio St.3d 457, 462, 709 N.E.2d 162 (1999).
{¶35} Here, there is nothing in the record to suggest that Brown would not have entered his guilty pleas had he received more or different information regarding postrelease control. Because Brown has not shown prejudice, he is not entitled to have his guilty pleas to robbery vacated for a failure to comply with Crim.R. 11(C)(2)(a). Brown's second assignment of error is overruled.
Imposition of Fines and Court Costs and Ability to Pay
{¶36} In his third assignment of error, Brown contends that the trial court erred and abused its discretion in imposing fines and court costs without considering his ability to pay them pursuant to R.C. 2929.19(B)(5).
Imposition of Court Costs
{¶37} "In all criminal cases," the trial court is required to "include in the sentence the costs of prosecution * * * and render a judgment against the defendant for such costs." R.C. 2947.23(A)(1)(a). Because the imposition of the costs of prosecution is mandatory, the trial court is not required to consider a defendant's ability to pay before ordering him or her to pay costs. State v. Taylor, Slip Opinion No. 2020-Ohio-3514, ––– N.E.3d ––––, ¶ 6 ("[T]his strict statutory language ‘requires a court to impose costs against all convicted defendants,’ indigent or not.") (emphasis sic), quoting State v. White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8 ; see also Cleveland v. Ruiz , 8th Dist. Cuyahoga No. 106743, 2018-Ohio-4604, 2018 WL 5994859, ¶ 11. After imposing costs, however, the trial court has the discretion to waive payment of costs if the defendant moves for a waiver of costs. Ruiz at ¶ 13 ; State v. Miller , 8th Dist. Cuyahoga No. 106051, 2018-Ohio-2127, 2018 WL 2671000, ¶ 23. R.C. 2947.23(C) states: "The court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter." Thus, although the court must impose costs, it may also waive, suspend or modify payment of them. " ‘[W]aiver of costs is permitted — but not required — if the defendant is indigent.’ " Taylor at ¶ 7, quoting White at ¶ 14. In Taylor , the Ohio Supreme Court held that, based on "Ohio's statutory scheme," a trial court is not required to consider a defendant's present or future ability to pay when ruling on a motion to vacate, suspend, or modify court costs under R.C. 2947.23(C). Taylor at ¶ 11, 16 ("If present or future ability to pay is a condition for retaining costs, it doesn't make much sense for it not to be a condition for imposing costs in the first place. But it plainly is not."), citing White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, at ¶ 8, and R.C. 2947.23(A)(1)(a).
{¶38} In this case, there is nothing in the record to indicate that Brown objected to or at any time moved to waive, suspend or modify payment of court costs. Accordingly, the trial court did not abuse its discretion or otherwise err in ordering Brown to pay court costs.
Imposition of Fines
{¶39} Under R.C. 2929.18, a court may order a felony offender to pay, as part of his or her sentence, a fine or other financial sanction. Before imposing a financial sanction, the trial court must "consider" the defendant's "present and future ability to pay the amount of the sanction or fine." R.C. 2929.19(B)(5). There are no specific factors the trial court must evaluate in considering a defendant's present and future ability to pay. See, e.g., State v. Cruz , 8th Dist. Cuyahoga No. 106098, 2018-Ohio-2052, 2018 WL 2418413, ¶ 27. The trial court need not make any specific findings on the record with respect to a defendant's ability to pay or expressly state on the record that it considered the defendant's ability to pay. See, e.g., State v. Newton , 8th Dist. Cuyahoga No. 107195, 2019-Ohio-3566, 2019 WL 4201477, ¶ 49 ; State v. Schneider , 8th Dist. Cuyahoga No. 96953, 2012-Ohio-1740, 2012 WL 1379845, ¶ 10.
{¶40} However, " ‘there must be some evidence in the record that the trial court considered the defendant's ability to pay.’ " See, e.g., Schneider at ¶ 10, quoting State v. Jacobs , 189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d 79, ¶ 11 (8th Dist.).
{¶41} Brown argues that the record shows he did not have an ability to pay the fines imposed by the trial court because: (1) the trial court found him to be indigent and assigned him counsel; (2) he was only 19, never graduated high school, was placed in special education classes since the 5th grade and did not have an "extensive or consistent employment history"; (3) he did not have any assets or savings and (4) he had "a number of medical and mental health issues."
{¶42} The fact that a defendant is "indigent" or is represented by appointed counsel does not preclude a trial court from imposing financial sanctions. See, e.g., State v. Nitsche , 2016-Ohio-3170, 66 N.E.3d 135, ¶ 76 (8th Dist.) ; Cruz , 2018-Ohio-2052, at ¶ 28 ; State v. Aniton , 8th Dist. Cuyahoga No. 102440, 2015-Ohio-4080, 2015 WL 5781059, ¶ 20. Likewise, the fact that a defendant is sentenced to a lengthy prison sentence " ‘does not necessarily preclude the imposition of financial sanctions.’ " Nitsche at ¶ 76, quoting State v. Western , 2015-Ohio-627, 29 N.E.3d 245, ¶ 57 (2d Dist.).
{¶43} In this case, the record reflects that the trial court considered Brown's present and future ability to pay prior to imposing the fines in this case. Although each of the robbery counts to which Brown pled guilty was subject to a discretionary fine of up to $15,000, the trial court imposed a fine of only $250 on each count. Brown did not object to the fine or the amount of the fine at the sentencing hearing. The trial court expressly stated at the sentencing hearing that it had reviewed the presentence investigation report, which contained detailed information regarding Brown's age, education, physical and mental health, finances and employment history, when determining an appropriate sentence. This was sufficient to comply with the trial court's obligation under R.C. 2929.19(B)(5). See, e.g., Newton , 2019-Ohio-3566, at ¶ 49-50 ("An appellate court is to ‘look to the totality of the record’ to see if the court considered a defendant's ability to pay, and a trial court has satisfied this requirement when the record shows that the court considered a PSI that provides pertinent financial information regarding the offender's ability to pay."); Aniton at ¶ 19 ("The trial court may comply with [its obligation under R.C. 2929.19(B)(5) ] ‘by considering a presentence-investigation report, which includes information about the defendant's age, health, education, and work history.’ ‘The court's consideration * * * may be inferred from the record under appropriate circumstances.’ ") (citations omitted), quoting State v. Tate , 2d Dist. Montgomery No. 25386, 2013-Ohio-5167, 2013 WL 6174815, ¶ 52.
{¶44} Accordingly, Brown's third assignment of error is overruled.
Jail-Time Credit
{¶45} In his fourth assignment of error, Brown argues that the trial court failed to give him jail-time credit for the time he spent in pretrial custody.
{¶46} "Criminal defendants have a right to jail-time credit." State v. Thompson , 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, 2015 WL 5608269, ¶ 21. Pursuant to R.C. 2929.19(B)(2), the sentencing court must "[d]etermine, notify the offender of, and include in the sentencing entry the total number of days, including the sentencing date but excluding conveyance time, that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced" and by which the department of rehabilitation and correction must reduce the stated prison term. Thus, the trial court makes a factual determination as to the number of days of confinement that a defendant is entitled to have credited toward his or her sentence. State ex rel. Rankin v. Ohio Adult Parole Auth. , 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. The Ohio Department of Rehabilitation and Correction then applies the jail-time credit as determined by the trial court to the offender's sentence to reduce the stated prison term. Id. ; R.C. 2967.191.
{¶47} Brown contends that, as of the date of the sentencing hearing, he spent a total of 204 days in pretrial custody, but the trial court failed to give him any jail-time credit at the sentencing hearing or in the sentencing journal entry. The state concedes this error.
{¶48} Accordingly, we sustain Brown's fourth assignment of error and remand for the trial court to calculate the amount of jail-time credit to which Brown is entitled.
Imposition of Consecutive Sentences
{¶49} In his fifth and sixth assignments of error, Brown challenges the trial court's imposition of consecutive sentences. There are two ways a defendant can challenge consecutive sentences on appeal. State v. Tidmore , 8th Dist. Cuyahoga No. 107369, 2019-Ohio-1529, 2019 WL 1858226, ¶ 15 ; State v. Johnson , 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, 2016 WL 1463847, ¶ 7. First, the defendant can argue that consecutive sentences are contrary to law because the trial court failed to make the findings required by R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(b). Second, the defendant can argue that the record clearly and convincingly does not support the findings made under R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a). Brown raises both arguments here.
Because we are vacating Brown's guilty plea as to the rape count and remanding the case for further proceedings as to that count, we address Brown's fifth and sixth assignments of error only as they relate to the imposition of consecutive sentences on the two robbery counts.
{¶50} To impose consecutive sentences, the trial court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public and (3) at least one of the following applies:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
R.C. 2929.14(C)(4). The trial court must make the required statutory findings at the sentencing hearing and incorporate those findings into its sentencing journal entry. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
{¶51} To make the requisite findings under the statute, " ‘the [trial] court must note that it engaged in the analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of the given bases warrants its decision.’ " Id. at ¶ 26, quoting State v. Edmonson , 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). "[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld." Id. at ¶ 29. When considering whether the trial court has made the requisite findings, an appellate court must view the trial court's statements on the record "in their entirety." See, e.g., State v. Blevins , 2017-Ohio-4444, 93 N.E.3d 246, ¶ 25 (8th Dist.).
{¶52} Brown contends that the trial court erred in imposing consecutive sentences because it did not make all of the requisite findings for the imposition of consecutive sentences both at the sentencing hearing and in its sentencing journal entry and because the record does not support the imposition of consecutive sentences. Specifically, he contends that (1) the trial court failed to make any finding under R.C. 2929.14(C)(a)-(c) at the sentencing hearing, (2) the trial court failed to incorporate all of the consecutive sentence findings it made at the sentencing hearing into its sentencing journal entry and (3) the record does not support the trial court's finding that Brown's "history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶53} In this case, as detailed above, the record reflects that the trial court made all of the requisite findings for the imposition of consecutive sentences at the sentencing hearing. The trial court expressly stated at the sentencing hearing that "consecutive sentences are necessary to protect the public from future crimes" and "to punish the offender" and that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct" and "are not disproportionate to the danger the offender poses to the public." With respect to the required finding under R.C. 2929.14(C)(4) (a)-(c), the trial court expressly stated at the sentencing hearing: "The Court further finds that the defendant's prior history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crimes by the offender." R.C. 2929.14(C)(4)(c). Only one of the three findings under R.C. 2929.14(C)(4)(a)-(c) must be made to support the imposition of consecutive sentences.
{¶54} An appellate court "may increase, reduce, or otherwise modify a sentence" or it "may vacate the sentence and remand the matter to the sentencing court for resentencing" if it "clearly and convincingly finds" that "the record does not support the sentencing court's findings" under R.C. 2929.14(C)(4). R.C. 2953.08(G)(2). " ‘Clear and convincing evidence is that measure or degree of proof * * * which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ " State v. Franklin , 8th Dist. Cuyahoga No. 107482, 2019-Ohio-3760, 2019 WL 4509846, ¶ 29, quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. It is "an extremely deferential standard of review." State v. Venes , 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
{¶55} Citing this court's decision in State v. Batiste , 8th Dist. Cuyahoga, 2020-Ohio-3673, 154 N.E.3d 1220, Brown contends that the record does not support the trial court's finding that Brown had a significant history of criminal conduct because Brown did not have any prior criminal "convictions." He argues that an offender's history of juvenile adjudications may be considered "criminal history" for the purpose of imposing consecutive sentences only when the offender has "an extensive juvenile history." In Batiste , this court found, by clear and convincing evidence, that the record did not support the trial court's finding that the 27-year-old defendant's "history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender" based on a single, prior juvenile adjudication for robbery for which the defendant had been sentenced to community control sanctions and had completed nine years earlier without incident. Id. at ¶ 6, 18, 21. The facts of this case are readily distinguishable from those in Batiste .
{¶56} Although "a juvenile adjudication is not a conviction of a crime and should not be treated as one," it is "widely accepted" that an offender's juvenile history can be used as prior criminal history for the purpose of imposing consecutive sentences. Batiste at ¶ 20 ; see also State v. Russell , 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, 2020 WL 3047607, ¶ 141 ; State v. Bromagen , 1st Dist. Hamilton No. C-120148, 2012-Ohio-5757, 2012 WL 6085369, ¶ 8-9. Brown, who was 18 at the time the incident at issue here and 19 at the time of sentencing, had a significant juvenile history of criminal conduct. The assistant prosecuting attorney outlined Brown's juvenile record at the sentencing hearing. Brown's juvenile record was also detailed in the PSI, which the trial court reviewed prior to sentencing. Brown's juvenile record included: a delinquency adjudication for breaking and entering in 2011; findings that he was unruly in 2014 and 2016; a delinquency adjudication for burglary in 2014 and delinquency adjudications for assault, abduction, menacing, criminal damaging and theft in 2018. The record also reflects that Brown was on probation for the 2018 offenses when he committed the offenses in this case. The transcript from the sentencing hearing shows that the trial court made its findings in support of the imposition of consecutive sentences after considering that juvenile history.
{¶57} In this case, Brown committed acts that caused serious psychological harm to two young victims and their families. The victims were not only forced to endure the acts themselves — being robbed of their cellphones and clothing and forced to kneel naked before Brown while being held at gunpoint — they and their families were also forced to suffer further trauma, public embarrassment, humiliation and psychological harm as Brown videotaped the incident and then posted it on social media. Although Brown "apologized" to his victims and their families at the outset of the sentencing hearing, the record does not reflect that he was truly remorseful for his actions or that he appreciated the serious harm he had caused to his victims and their families.
{¶58} The transcript from the sentencing hearing shows that the trial court's consecutive sentence findings were the result of a thorough, carefully considered analysis regarding whether consecutive sentences were necessary to protect the public from future crime in light of the nature and seriousness of the offenses, Brown's age, history and background, the harm caused by Brown to the victims and their families and the danger he poses to the public.
{¶59} Following a thorough review of the record, we cannot say that the record clearly and convincingly does not support the trial court's finding that Brown's "history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender" or any of the trial court's other findings in support of the imposition of consecutive sentences.
{¶60} Further, we note that this case involved two victims, each of whom was seriously harmed by Brown's actions. Although "[i]t is not mandatory that consecutive sentences be imposed when there is more than one victim * * * and the record still must support the imposition of consecutive terms," this court has recognized that "it is generally accepted that when a defendant commits crimes against more than one victim, consecutive sentences are reasonable to hold the defendant accountable for the crimes committed against the [multiple] victims." Batiste , 2020-Ohio-3673, 154 N.E.3d 1220, at ¶ 22, citing State v. Thome , 8th Dist. Cuyahoga No. 104445, 2017-Ohio-963, 2017 WL 1034599, ¶ 16. Representation for the harm suffered by each of the victims clearly factored into the trial court's decision here to impose consecutive sentences.
{¶61} Although the trial court made all of the requisite findings for the imposition of consecutive sentences at the sentencing hearing, it failed to incorporate all of those findings in its sentencing journal entry. Specifically, the trial court failed to include its findings that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct" and "consecutive sentences are not disproportionate to the danger the offender poses to the public" in its sentencing journal entry. The state concedes this error. This failure does not render the consecutive sentences contrary to law. Bonnell at ¶ 30. Rather, this omission may be corrected through a nunc pro tunc entry to reflect what actually occurred at the sentencing hearing. Id.
{¶62} Brown's fifth assignment of error is sustained. Brown's sixth assignment of error is overruled.
{¶63} Sua sponte, we also note that the trial court's July 31, 2019 journal entry states that "[d]efendant * * * enters a plea of guilty to aggravated robbery 2911.01 A(1) F2 as amended in Count(s) 4, 6 of the indictment" and its August 26, 2019 journal entry states that "[o]n a former day of court the defendant plead guilty to aggravated robbery [R.C.] 2911.01A(1) F2 as amended in Count(s) 4, 6 of the indictment." At the change-of-plea hearing Brown, however, pled guilty to two amended counts of robbery in violation of R.C. 2911.02(A)(2), not to two counts of aggravated robbery in violation of R.C. 2911.01(A)(1). Accordingly, we remand for the issuance of nunc pro tunc orders correcting these typographical errors. See, e.g., State v. Thompson , 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 15-16 (nunc pro tunc entries can be used to correct clerical errors so that the record speaks the truth regarding what actually occurred); see also Crim.R. 36 ("Clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time.").
{¶64} We vacate Brown's guilty plea to the rape count and remand (1) for further proceedings on the rape count, (2) for the trial court to calculate the amount of jail-time credit to which Brown is entitled, (3) for the issuance of a nunc pro tunc order incorporating all of the findings the trial court made in support of consecutive sentences at the sentencing hearing in its sentencing journal entry and (4) for the issuance of nunc pro tunc orders correcting the trial court's misstatements in its July 31, 2019 and August 26, 2019 journal entries to reflect that Brown pled guilty to two amended counts of robbery in violation of R.C. 2911.02(A)(2) rather than to two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), as currently stated in those journal entries. We affirm the trial court in all other respects.
{¶65} Judgment affirmed in part; vacated in part; remanded.
MARY J. BOYLE, P.J., CONCURS IN JUDGMENT ONLY;
LARRY A. JONES, SR., J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION ATTACHED)
LARRY A. JONES, SR., J., CONCURRING IN PART AND DISSENTING IN PART: {¶66} I concur in part and dissent in part. I concur with the majority as to the first through fifth assignments of error but dissent as to the sixth assignment of error.
{¶67} Brown was only 18 years old when he committed the crimes that are the subject of this appeal. He pleaded guilty, accepting responsibility for his actions, but the trial court still sentenced him to maximum, consecutive sentences of 30 years in prison. While I am aware that we are vacating his guilty plea for rape, there is nothing to indicate that the trial court will not similarly sentence Brown should he decide to plead guilty to the rape charge again (or if he is found guilty of the rape charge should he chose to go to trial on the charge). As it stands, Brown has been sentenced to maximum, consecutive sentences of 16 years in prison for robbery.
{¶68} While I am aware of our deferential standard of review, our review of felony sentencing must also be "meaningful." State v. Metz , 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 92 (8th Dist.), citing State v. Bratton , 6th Dist. Lucas Nos. L-12-1219 and L-12-1220, 2013-Ohio-3293, 2013 WL 3936481, ¶ 8, citing State v. Carter , 11th Dist. Portage No. 2003-P-0007, 2004-Ohio-1181, 2004 WL 473642. In order to conduct a "meaningful review," we are required to review the entire record, including any reports that were submitted to the court (i.e., a presentence, psychiatric, or other investigative report), the trial record, and any statements made to or by the court at sentencing. Metz at id. ; see R.C. 2953.08(F)(1)-(3).
{¶69} Under R.C. 2929.41(A) there is a presumption that prison sentences for multiple offenses be served concurrently. As the majority mentions, pursuant to R.C. 2929.14(C)(4), the trial court may order consecutive sentences if it makes certain findings. The trial court made these findings (although it did not properly incorporate them into its sentencing journal entry); but I would clearly and convincingly find that the record does not support the imposition of consecutive sentences.
{¶70} This majority should consider, as this court did in Metz , that " ‘lengthy prison sentences do not make the public safer, in part, because ‘long-term sentences produce diminishing returns for public safety as individuals "age out" of the high-crime years.’ " Metz at ¶ 103 quoting Mauer, Long-Term Sentences: Time to Reconsider the Scale of Punishment , 87 UMKC L. Rev. 121 (2018).
In other words, the risk an individual may pose to public safety declines with age and each successive year of incarceration is likely to produce diminishing returns for public safety. Id. at 22; see also Nazgol Ghandnoosh, The Next Step: Ending Excessive Punishment for Violent Crimes, https://www.sentencingproject.org/publications/the-next-step-ending-excessive-punishment-for-violent-crimes (accessed Aug. 14, 2019) ("Although the violent crime rate has plummeted to half of its early-1990s level, the number of people imprisoned for a violent offense grew until 2009, and has since declined by just 3%. This trend stems from increased prison admissions and sentence lengths, despite evidence that excessive penalties are counterproductive.").
Metz at id. , quoting Mauer at id.
{¶71} I place great consideration on Brown's age at the time of the aggravated robberies and sentencing hearing. He was only 18 years old when he committed the crimes; 19 years old when the trial court sentenced him to 30 years in prison. By the time he serves his sentences for robbery, he will be at least 34 years old (and most likely much older, once the vacated rape plea is disposed of). " ‘Research shows that crimes start to peak in the mid- to late- teenage years and begins to decline when individuals are in their mid-20's. After that, crime drops sharply as adults reach their 30s and 40s.’ " Metz at ¶ 105, quoting Criminal Justice Facts, Our criminal justice system today is like a bicycle stuck in one gear: the prison gear , https://www.sentencingproject.org/criminal-justice-facts, copyright 2019 (accessed Aug. 14, 2019). Thus, " ‘[b]ecause recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation.’ " Id. , citing id.
{¶72} In addition to the concerns about what impact lengthy prison terms have on recidivism, there is also the concern about the cost to the public for such sentences. As noted by this court in Metz , the Ohio legislature has considered the tremendous cost of incarceration in R.C. 2929.11(A) :
The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(Emphasis added.)
{¶73} I am extremely troubled that the trial court sentenced such a young man to maximum, consecutive sentences. Brown did not have a felony record. He had a juvenile record, but I would argue it was not extensive — Brown had three delinquency cases, one each in 2011, 2014, and 2018. And none of these prior delinquency cases were for violent offenses, except for the 2018 case, where Brown was adjudicated delinquent on two counts of misdemeanor assault, and one count each of menacing, criminal damaging, and theft. Yet the trial court saw fit to impose the harshest sentence it could upon this young man. While Brown's juvenile record can be considered for the purpose of imposing consecutive sentences, see Russell , 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, it is not a conviction of a crime and should not be treated as one.
The facts of Brown's juvenile cases are not available to this court (nor is there any evidence they were available to the trial court); we rely on what little is in the presentence investigation report, which lists the dates of offenses, charges, and dispositions.
--------
{¶74} I would emphasize that Brown is one of eight children in a single-parent low-income household with his other parent often incarcerated; had a drug problem, namely marijuana and LSD, which he was under the influence of when he committed these crimes; physical problems including asthma, recent surgeries to his knee and leg, eczema, scoliosis, and arthritis in his lower extremities; mental health issues requiring three prescriptions; and a chaotic and unstable home life that included food, clothing, and shelter insecurities. While none of these factors excuse his crimes, I fail to see how 16 to 30 years of incarceration are going to meet the objectives set forth by Ohio's legislature. {¶75} For too long appellate courts, including this one, have rubber stamped excessive consecutive sentences. While this case was serious, because we have reversed and remanded his rape count, we are dealing solely with Brown's two robbery convictions. I do not find that the facts of this case warrant a maximum, consecutive sentence of 16 years in prison.
{¶76} For these reasons, I find that the record does not support the imposition of consecutive sentences and would reverse and remand the case for resentencing. Accordingly, I would sustain the sixth assignment of error.