[Cite as State v. Harris,
2012-Ohio-802.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 96460–96461, 96660–96661
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES HARRIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-535479 and CR-540287
BEFORE: Cooney, P.J., Keough, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: March 1, 2012
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ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Erika B. Cunliffe
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
AMICUS CURIAE
James L. Hardiman
Anthony W. Scott
ACLU of Ohio, Inc.
Max Wohl Civil Liberties Ctr.
4506 Chester Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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COLLEEN CONWAY COONEY, P.J.:
{¶1} Defendant-appellant, James Harris (“Harris”), appeals the revocation of his
community control sanctions in one case and the resulting imposition of sentence. He
also appeals the denial of two motions to vacate his guilty pleas in two cases. We find
no merit to the appeal and affirm.
{¶2} This case involves four consolidated appeals arising from two criminal
cases in common pleas court. In CR-535479, Harris was charged on March 19, 2010
with criminal nonsupport for his failure to provide child support to his daughter who is
now emancipated. In CR-540287, he was charged on July 30, 2010 with criminal
nonsupport for his failure to provide child support to a second daughter.
{¶3} In September 2010, Harris pled guilty to the indictments in both cases. The
court sentenced him to five years of community control sanctions with conditions that
included verifying five job applications per week until gaining full-time employment,
maintaining employment, and making payments toward the agreed amount of restitution
and support arrearage. In CR-535479, the juvenile court had previously ordered Harris
to pay $397.80 per month toward a child support arrearage of $19,429.12. In
CR-540287, the juvenile court had previously ordered him to pay $404.39 per month
toward the child support arrearage of $11,988.88.
{¶4} On December 15, 2010, the court held a community control sanctions
violation hearing. The court told Harris he was in violation but did not “violate” him and
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instead allowed community control to continue. 1 (Tr. 6, 9.) The court held another
community control sanctions violation hearing on January 27, 2011. The court found
him to be in violation and sentenced him to a year-long prison term in one case but
continued the community control sanctions in the second case, stayed until Harris was
released from the one-year term of incarceration. Harris appeals the judgments in both
cases.
{¶5} On March 1, 2011, Harris filed motions to withdraw his guilty pleas in both
cases. The court denied both motions, and Harris appealed.
{¶6} The four appeals have been consolidated, and together, Harris raises two
assignments of error.
Inability or Unwillingness
{¶7} In his first assignment of error, Harris argues that the trial court violated his
rights to due process and equal protection when the court found that he had violated
community control without first determining whether Harris had the ability to pay. In
an amicus brief, the American Civil Liberties Union of Ohio (“ACLU”) makes the same
argument.
{¶8} Harris did not object at the sentencing hearing to the court’s order of
restitution in either case, nor did he object to the amount he was ordered to pay. As such,
The docket, however, reflects Harris was not in violation as a result of the December 15th
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hearing.
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Harris has waived all but plain error. See, e.g., State v. Williams, 8th Dist. No. 93625,
2010-Ohio-3418, ¶ 8–9.
{¶9} Crim.R. 52(B) provides that “plain error or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
However, in order to prevail under a plain error analysis, the appellant bears the burden of
demonstrating that the outcome of the proceedings clearly would have been different but
for the error. State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph two of
the syllabus. For the following reasons, we do not find plain error.
{¶10} R.C. 2929.18(A) provides, in relevant part, that a court may sentence an
offender to a financial sanction, including:
(1) Restitution by the offender to the victim of the offender’s crime or any
survivor of the victim, in an amount based on the victim’s economic loss.
If the court imposes restitution, the court shall order that the restitution be
made to the victim in open court. … If the court imposes restitution, the
court may base the amount of restitution it orders on an amount
recommended by the victim, the offender, a presentence investigation
report, estimates or receipts indicating the cost of repairing or replacing
property, and other information …. If the court decides to impose
restitution, the court shall hold a hearing if the offender, victim, or survivor
disputes the amount.
{¶11} Despite his present assertions, Harris agreed to pay the restitution and
support arrearage in open court at the sentencing hearing. While explaining the
conditions of his community control sanctions, the court stated:
The other thing is you’ve got to get full-time employment. You must get
full-time employment. What does that mean? That means that if you
don’t have a job, I want you to show — …
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You have to show five applications a week that you’re applying for a job,
okay? You have to show what applications you put out there, what efforts
you’re doing. Because you know what? Quite frankly, some guys say,
You know what? I owe all this money. I’m not going to work for free.
Why work? That doesn’t go with me, nor Ms. Stroh. That’s why I have
her monitoring you.
Ms. Stroh will monitor you and make sure you’re making the restitution
payments.
{¶12} The court further explained that if Harris’s income with a new job is less
than his previous employment as a paralegal at Jones Day, he should apply for a
modification of his child support obligations. The court emphasized, however, that it
expects a payment to be made every month. To that end the court explained:
[W]hat I’m telling you is I want you working at Burger King, I want you
working at some store. You need to make payments here. Are you with
me?
THE DEFENDANT: Yes, sir.
{¶13} Finally, the court reiterated the condition that Harris produce evidence of a
good faith job search by submitting copies of five applications per week to his probation
officer. Again, Harris indicated that he understood the court’s expectations. He never
objected to the ordered restitution or challenged the five-applications-per-week
requirement.
{¶14} In addition, the record indicates that the court obtained a presentence
investigation report prior to sentencing. The report included information regarding the
juvenile court child support orders, the amount of arrears, and the monthly payment. As
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previously stated, R.C. 2929.18(A)(1) permits the trial court to base the restitution on an
amount recommended by the presentence investigation report.
{¶15} Further, regarding Harris’s claim that the court erred by ordering
restitution without conducting a hearing, R.C. 2929.18(A)(1) states, “[i]f the court
decides to impose restitution, the court shall hold a hearing on restitution if the offender,
victim, or survivor disputes the amount.” (Emphasis added.) No one disputed the
amount of restitution and support arrearage ordered. Thus, the trial court was not
required to hold a separate hearing on restitution, especially because the arrearage was
established by juvenile court.
{¶16} Harris and the ACLU contend that ordering restitution, without
determining whether Harris had the ability to make the ordered payments, violated his
constitutional rights to due process and equal protection. The Ohio and United States
Constitutions prohibit the trial court from incarcerating a person for simply failing to pay
a debt or fine. See, e.g., Bearden v. Georgia, 461 U.S. 660, 667,
103 S.Ct. 2064,
76
L.Ed.2d 221 (1983); Williams v. Illinois,
399 U.S. 235, 244,
90 S.Ct. 2018,
26 L.Ed.2d
586 (1970).
{¶17} To imprison someone solely because he is unable to pay a fine also
violates the Equal Protection Clause of the Fourteenth Amendment, because people
without the means to pay fines would receive more severe punishment than those who are
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capable of paying. See, e.g., Tate v. Short, 401 U.S. 395,
91 S.Ct. 668,
28 L.Ed.2d 130
(1971); Walker v. Stokes,
54 Ohio App.2d 119, 123,
375 N.E.2d 1258 (8th Dist.1977).
{¶18} Both Harris and the ACLU rely on the above-cited cases to support their
arguments. However, they fail to recognize the distinction identified in these cases,
between a simple inability to pay and an intentional failure to seek employment and/or
make payments. In Bearden, the U.S. Supreme Court stated that the issue presented “is
whether a sentencing court can revoke a defendant’s probation for failure to pay the
imposed fine and restitution, absent evidence and findings that the defendant was
somehow responsible for the failure or that alternative forms of punishment were
inadequate.” (Emphasis added.) Bearden at 665. Indeed, the Bearden court concluded
that the reason for nonpayment was critical:
We hold, therefore, that in revocation proceedings for failure to pay a fine
or restitution, a sentencing court must inquire into the reasons for the failure
to pay. If the probationer willfully refused to pay or failed to make
sufficient bona fide efforts legally to acquire the resources to pay, the court
may revoke probation and sentence the defendant to imprisonment within
the authorized range of its sentencing authority. If the probationer could
not pay despite sufficient bona fide efforts to acquire the resources to do so,
the court must consider alternate measures of punishment other than
imprisonment. Only if alternate measures are not adequate to meet the
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State’s interests in punishment and deterrence may the court imprison a
probationer who has made sufficient bona fide efforts to pay. To do
otherwise would deprive the probationer of his conditional freedom simply
because, through no fault of his own, he cannot pay the fine. Such a
deprivation would be contrary to the fundamental fairness required by the
Fourteenth Amendment. Id. at 672-673.
{¶19} The record supports the trial court’s finding that Harris willfully refused to
make any effort to pay his child support obligations by seeking employment. At the time
the court revoked Harris’s community control sanctions, he was 39 years old, had
completed three years of college, and had worked for several years as a paralegal at a
prominent law firm. There was no evidence that he was ill, disabled, or otherwise unable
to work. In fact, Harris acknowledged working temporary jobs and had periodic
employment during the indictment periods. Yet, he only paid $10 to each victim during
the three-month period between sentencing and his second revocation hearing. Harris
made these payments only after having appeared before the court at the first violation
hearing, where the court reiterated the requirement that he make good faith efforts to
obtain full-time employment by providing five applications per week.
{¶20} Moreover, Harris failed to provide the five applications as required. He
provided a total of four applications during one four-week period preceding the
December revocation hearing. Although he claimed he had obtained employment three
10
days before the second revocation hearing, he had nothing to verify that employment
except an I.D. Not only did he fail to make court-ordered restitution payments, he also
failed to demonstrate bona fide efforts to acquire the resources to pay. Under these
circumstances, we find no plain error.
{¶21} The first assignment of error is overruled.
Guilty Plea
{¶22} In his second assignment of error, Harris argues the court erred in denying
his motions to vacate his guilty pleas. He contends he did not enter his plea knowingly,
intelligently, and voluntarily because he did not know he could raise financial inability to
pay as an affirmative defense.
{¶23} A post-sentence motion to withdraw a guilty plea may be granted only to
correct a “manifest injustice.” Crim.R. 32.1; State v. Bell, 8th Dist. No. 87727,
2007-Ohio-3276, citing State v. Smith,
49 Ohio St.2d 261, 264,
361 N.E.2d 1324 (1977).
The defendant bears the burden of establishing the existence of “manifest injustice.”
Id., paragraph one of syllabus. “Manifest injustice” is an extremely high standard that
permits the court to allow a plea withdrawal only in “extraordinary cases.” State v.
Malone, 8th Dist. No. 91439,
2009-Ohio-1364, ¶ 8. A post-sentence motion to vacate a
guilty plea is also left to the discretion of the trial court and will not be reversed absent an
abuse of discretion. State v. Xie,
62 Ohio St.3d 521, 527,
584 N.E.2d 715 (1992).
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{¶24} Harris claims that if he had known that financial inability to pay the child
support obligation was a defense, he would not have pled guilty. He further argues that
R.C. 2919.21 provides this defense. However, R.C. 2919.21(D) states:
It is an affirmative defense to a charge of failure to provide adequate
support under division (A) of this section or a charge of failure to provide
support established by a court order under division (B) of this section that
the accused was unable to provide adequate support or the established
support but did provide the support that was within the accused’s ability
and means. (Emphasis added.)
{¶25} Harris fails to recognize that the defense requires the accused to provide
support within his means. Thus, Harris could only have benefitted from this defense if
he had made payments commensurate with his ability and means. However, in
CR-540287, the indictment period spanned October 2007 through October 2009, and
Harris made no payments during this two-year period. In CR-535479, the indictment
period spanned February 2008 through January 2010. Harris made only five payments in
2008, ranging from $7.14 to $164.22. According to his exhibit, attached to his motions
to withdraw his guilty plea, he was employed during the indictment periods. Despite a
few paltry payments, the record indicates that Harris failed to provide payments within his
means and ability. As such, he could not have availed himself of the financial hardship
defense, and therefore, the trial court did not abuse its discretion in denying his motions
to withdraw his guilty pleas. Furthermore, the record reflects his alleged inability to pay,
and the court fully considered his circumstances.
{¶26} The second assignment of error is overruled.
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Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
____________________________________________________
COLLEEN CONWAY COONEY, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY
