Opinion
L-21-1081
11-19-2021
State of Ohio Appellee v. Earnest White Appellant
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee. Laurel A. Kendall, for appellant.
Trial Court No. CR0202002257
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
DECISION AND JUDGMENT
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, Earnest White, appeals the May 3, 2021 judgment of the Lucas County Court of Common Pleas sentencing him to an aggregate, indefinite prison term of 30 to 31 years following his convictions on 15 counts of robbery. The trial court also ordered appellant to pay restitution in various amounts to five of the victims of his offenses. For the following reasons, we affirm the trial court's judgment.
A. Facts and Procedural Background
{¶ 2} On October 9, 2020, appellant was indicted on 15 counts of burglary in violation of R.C. 2911.12(A)(2) and (D), each a second-degree felony. At his October 15, 2020 arraignment, appellant was determined to be indigent and was appointed counsel. He then entered a not guilty plea to each count.
{¶ 3} Following negotiations with the state, appellant appeared for a change of plea hearing on April 30, 2021. Pursuant to a plea agreement, the state requested that the trial court amend eight of appellant's fifteen counts to burglary in violation of R.C. 2911.12(A)(3) and (D), each a third-degree felony. The trial court agreed, resulting in an amended indictment which included seven counts of second-degree felony robbery and eight counts of third-degree felony robbery. The trial court also noted that pursuant to the plea agreement appellant had agreed to pay restitution to five of the victims of his offenses in an aggregate amount of $4,850. Appellant acknowledged that this was his understanding of the terms of the agreement. Appellant then withdrew his not guilty plea and entered a no contest plea to all counts in the amended indictment. The trial court accepted appellant's plea and found him guilty on each count.
{¶ 4} At his April 30, 2021 sentencing, the trial court ordered appellant to serve a 24-month prison term for each of his eight third-degree felony burglary convictions. The trial court also ordered appellant to serve a non-life indefinite prison term of a minimum of two years and a maximum of three years for each of his second-degree felony burglary convictions pursuant to R.C. 2929.14(A)(2)(a)-the Reagan Tokes Law. The trial court ordered appellant to serve all of the sentences consecutively for a total, indefinite prison term of 30 to 31 years. The trial court also ordered appellant to pay restitution to five of his victims pursuant to his plea agreement. Appellant's sentence was memorialized in a May 3, 2021 judgment entry.
B. Assignments of Error
{¶ 5} Appellant timely appealed and asserts the following errors for our review:
1. The imposition of an order of restitution was reversible error when appellant requested a finding concerning his ability to pay restitution prior to the imposition of his sentence, and/or a sentence that would reasonably allow him to make restitution payments, pursuant to R.C. 2929.19(B)(5), prior to the imposition of a thirty year sentence, and when the court waived all costs, including the cost of prosecution, based on appellant's inability to pay in the sentencing entry.
2. Appellant reserves the right to challenge the imposition of indefinite sentences pending the outcome of litigation to determine the constitutionality of such sentence, which are arguably unconstitutional nullities.
II. Law and Analysis
a. The trial court was not required to determine appellant's ability to pay before ordering restitution.
{¶ 6} In his first assignment of error, appellant argues that the trial court erred when it ordered him to pay restitution without first determining his ability to pay the ordered amount. We find that appellant waived the issue of whether he has the ability to pay restitution and, therefore, the trial court's failure to consider his ability to pay does not constitute error.
{¶ 7} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a sentence in order to compensate a victim for economic loss. State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 20. Ordinarily, the trial court must first determine whether the offender has a present or future ability to pay the amount determined as appropriate before imposing restitution. State v. Bey, 2019-Ohio-423, 130 N.E.3d 1031, ¶ 43 (6th Dist.). There is, however, an exception to this requirement when the defendant agrees to pay restitution as "part and parcel of a plea agreement." State v. Jordan, 6th Dist. Lucas No. L-19-1165, 2021-Ohio-333, ¶ 8, citing State v. Coburn, 6th Dist. Sandusky No. S-09-006, 2010-Ohio-692, ¶ 22. In that instance, "there is no reversible error in imposing [restitution], without first determining the defendant's ability to pay." Id. Moreover, a defendant that agrees to pay restitution as part of their plea agreement "waives the issue of whether he or she will be able in the future to pay the amount agreed upon." Id.
{¶ 8} At appellant's change of plea hearing, the trial court explicitly stated "as part of your plea agreement, you are agreeing to pay restitution[.]" The trial court then identified the precise amount of restitution appellant agreed to pay each victim. Appellant did not object to the trial court's statements and confirmed that he wished to maintain his no contest plea. Appellant further acknowledged his agreement to pay restitution as part of his plea agreement in a sentencing memorandum filed subsequent to his change of plea hearing. After being advised of the rights he was waiving by entering his plea, appellant signed a written plea agreement which included his agreement to pay restitution as described by the trial court. Because appellant agreed to pay restitution as part of his plea agreement, the trial court was not required to determine whether he had the ability to pay that amount and the lack of such a finding in these circumstances is not reversible error. Id. at ¶ 8.
{¶ 9} Despite this, appellant now argues, essentially, that the trial court was still required to consider his ability to pay restitution because he asked the trial court to do so. In his sentencing memorandum, appellant requested that the trial court impose a sentence "that will allow [appellant] to someday honor this agreement [to pay restitution.]" At the sentencing hearing, appellant specifically asked the court not to impose the agreed-upon restitution unless it determined he had the ability to pay that amount. The trial court did not address appellant's requests and ordered appellant to pay restitution as described in his plea agreement without determining his ability to pay those amounts. Appellant argues that this constitutes error in light of his requests that the trial court consider his ability to pay.
{¶ 10} Appellant cites no authority for this argument. Moreover, this argument is in direct contrast to clearly applicable authority which shows that appellant waived the issue of his ability to pay restitution when he agreed to do so as part and parcel of his plea agreement. Appellant's argument, therefore, is entirely without merit and his first assignment of error is found not well-taken.
b. Appellant did not assign error to the trial court's imposition of sentence under R.C. 2929.14(A)(2)(a).
{¶ 11} Appellant's second assignment of error asks us to "reserve" his right to challenge the constitutionality of the trial court's imposition of a prison term under R.C. 2929.14(A)(2)(a)-the Reagan Tokes Law-upon the resolution of a case currently pending before the Ohio Supreme Court. Seven of appellant's fifteen convictions were sentenced in accordance with R.C. 2929.14(A)(2)(a)'s indefinite sentencing scheme. The issue of when the indefinite portion of an offender's sentence under R.C. 2929.14(A)(2)(a) is ripe for challenge on appeal is currently pending before the Ohio Supreme Court in State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150. In light of Maddox, appellant asks this court to reserve his right to challenge his sentence once that issue is resolved. As such, appellant's enumerated second assignment of error does not actually assign any error to the trial court's judgment. Accordingly, we have nothing before us to consider.
{¶ 12} "Under App.R. 12(A)(1)(b), an appellate court must determine an appeal based on the assignments of error set forth in the brief" State v. Willis, 6th Dist. Wood No. WD-16-048, 2017-Ohio-8924, ¶ 26, citing State v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, ¶ 103 (emphasis added). "An appellate court rules on assignments of error only[.]" Id. App.R. 16(A)(3) requires appellants to include in their briefs "[a] statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected." Additionally, App.R. 16(A)(7) requires appellant to provide "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." Appellant's request that this court recognize his reservation of a future right to appeal his sentence does not satisfy any of the requirements of App.R. 16(A)(3) and (7). Put simply, it is not an assignment of error.
{¶ 13} Given that appellant fails to assign error to his sentence under 2929.14(A)(2)(a), there is nothing for this court to review. Under these circumstances, we "may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based required by App.R. 16(A)." App.R.12(A)(2). For these reasons, we decline to address this purported assignment and find it not well-taken.
III. Conclusion
{¶ 14} We find appellant's first and second assignments of error not well-taken. We therefore affirm the May 3, 2021 judgment of the Lucas County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R.24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.LocApp.R. 4.
Thomas J. Osowik, J., Christine E. Mayle, J., Gene A. Zmuda, P.J., CONCURS.