[Cite as State v. Poff,
2021-Ohio-384.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 20AP0005
BRIAN JAMES POFF :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from Morgan County Court
of Common Pleas, Case No. 19CR0027
JUDGMENT: Affirmed in part, reversed in part and
remanded
DATE OF JUDGMENT ENTRY: February 11, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK HOWDYSHELL BRIAN W. BENBOW
Morgan County Assistant Prosecutor 265 Sunrise Center Drive
109 East Main Street Zanesville, OH 43701
McConnelsville, OH 43756
[Cite as State v. Poff, 2021-Ohio-384.]
Gwin, P.J.
{¶1} Defendant-appellant Brian James Poff [“Poff”] appeals his sentence after a
negotiated guilty plea in the Morgan County Court of Common Pleas.
Facts and Procedural History
{¶2} C.A. and Brian Poff had been lifelong friends. On May 2, 2019 the pair
traveled to a campsite on Creek Road, Beverly, Ohio, as they had done many times
before for the past thirty-five years. Sometime after dark, after the consumption of beer,
whiskey, and marijuana by C.A. and Poff, a spontaneous, heated argument broke out
among the two friends. The record contains no explanation of the genesis or nature of the
heated argument. The disagreement between the two continued to escalate to the point
where Poff threw C.A.’s belongings into a fire pit and burned them. A short time later Poff
went inside the camper and came outside with a hand gun. Poff began to shoot at C.A.
As C.A. begins to flee, Poff chases after him while continuing to shoot.
{¶3} C.A. was struck multiple times by bullets fired from a .9-millimeter handgun.
C.A. had bullet wounds to his upper body and to his lower body, and he had a bullet
wound that went through his ankle on a downward trajectory which caused very significant
injuries for which C.A. has had to have multiple surgeries.
{¶4} Poff called emergency services to come to the aid of C.A. When they arrived
Poff denied involvement in the shooting of his friend.
{¶5} On May 14, 2019, the Morgan County Grand Jury indicted Poff on three
separate counts, felonious assault (serious physical harm) in violation of R.C.
2903.11(A)(1), felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2), and
Morgan County, Case No. 20AP0005 3
attempted murder in violation of R.C. 2923.02(a) and R.C. 2923.02(A)(2). Each count
included a three-year firearm specification.
{¶6} As part of a negotiated plea, Counts Two and Three of the Indictment were
dismissed and the firearm specification was reduced to one year. On April 24, 2020, Poff
entered a negotiated guilty plea to Count 1 of the Indictment, Felonious Assault (serious
physical harm) in violation of R.C. 2903.11(A)(1), along with the amended one-year
firearm specification in violation of R.C. 2941.141. The trial court deferred sentencing and
order the preparation of a Pre-sentence Investigation Report [“PSI”].
{¶7} The PSI report indicates that Poff was interviewed and declined to give his
version of the facts upon advice of counsel.
{¶8} On August 5, 2020, the trial court sentenced Poff to serve a stated prison
term of seven years for the felonious assault, plus the mandatory one-year prison
sentence on the firearm specification. The trial court further fined Poff $15,000.00 and
ordered restitution of $12,000.00 to the victim, C.A. The trial court ordered Poff to pay the
costs of prosecution, the court costs and court-appointed counsel fees.
Assignments of Error
{¶9} Poff raises three Assignments of Error,
{¶10} “I. THE COURT ERRED IN IMPOSING A SENTENCE THAT WAS
GROSSLY DISPROPORTIONATE TO APPELLANT'S CONDUCT AND NOT IN
ACCORDANCE WITH STATUTES GOVERNING FELONY SENTENCING AND WHICH
DEMONSTRATES A UNCESSARY BURDEN ON STATE RESOURCES.
{¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING
$12,000.00 IN RESTITUTION IN A CASE WHERE THE VICTIM DID NOT SUSTAIN THE
Morgan County, Case No. 20AP0005 4
BURDEN OF PROOF TO A REASONABLE DEGREE OF CERTAINTY. THE TRIAL
COURT FURTHER ERRED IN IMPOSING RESTITUTION WITHOUT FIRST
CONSIDERING APPELLANT'S ABILITY TO PAY.
{¶12} THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING A
$15,000.00 FINE WITHOUT FIRST CONSIDERING APPELLANT'S ABILITY TO PAY
AFTER IMPOSING AN EXCESSIVE FINE, UNFOUNDED RESITUTION, AND A
LENGTHY PRISON SENTENCE.
{¶13} “III. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STRICKLAND v.
WASHINGTON (1984), 466 U.S, 668, 80 L.Ed.2d 674,
104 S.Ct. 2052.”
I.
{¶14} In his First Assignment of Error, Poff argues that the trial court erred when
it imposed a prison sentence that was contrary to law and not supported by the record.
Standard of Review.
{¶15} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002,
59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004,
2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, State v. Bonnell,
140 Ohio St.3d 209, 2014–Ohio–3177,
16 N.E.2d 659, ¶28.
Morgan County, Case No. 20AP0005 5
{¶16} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb,
18 Ohio St.3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
{¶17} Recently, the Ohio Supreme Court reviewed the issue of “whether a
sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds
that the record does not support a sentence with respect to R.C. 2929.11 and 2929.12.”
State v. Jones, Oh. Sup. Ct. No. 2018-0444, 2020-Ohio-6729,
2020 WL 7409669(Dec.
18, 2020).1 A plurality of the Court in Jones found,
Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment
for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12. In particular, R.C.
2953.08(G)(2) does not permit an appellate court to conduct a freestanding
inquiry like the independent sentence evaluation this court must conduct
under R.C. 2929.05(A) when reviewing a death penalty-sentence. See
State v. Hundley, ––– Ohio St.3d ––––, 2020-Ohio-3775, ––– N.E.3d ––, ¶
1 We note that Jones was decided after briefs were filed in the case at bar. However, Jones does
not change the law; rather, Jones simply clarifies existing law and precedents.
Morgan County, Case No. 20AP0005 6
128 (recognizing that R.C. 2929.05(A) requires de novo review of findings
and other issues within its scope).
2020-Ohio-6729,
2020 WL 7409669, ¶ 42. The Court in Jones noted that,
R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate
a sentence if it clearly and convincingly finds that “the record does not
support the sentencing court’s findings under” certain specified statutory
provisions. But R.C. 2929.11 and 2929.12 are not among the statutory
provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),
2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.
2020-Ohio-6729,
2020 WL 7409669, ¶ 28. The plurality concluded,
R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an
appellate court to modify or vacate a sentence based on its view that the
sentence is not supported by the record under R.C. 2929.11 and 2929.12.
2020-Ohio-6729,
2020 WL 7409669, ¶39. The Court clarified,
The statements in Marcum at ¶ 23 suggesting that it would be “fully
consistent” with R.C. 2953.08(G) for an appellate court to modify or vacate
a sentence when the record does not support the sentence under R.C.
2929.11 or 2929.12 were made only in passing and were not essential to
this court’s legal holding. The statements are therefore dicta.
2020-Ohio-6729,
2020 WL 7409669, ¶ 27.
Issue for Appellate Review: Whether the record clearly and convincing does
not support Poff’s sentence under 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and
2929.20(I).
Morgan County, Case No. 20AP0005 7
R.C. 2929.13(B).
{¶18} R.C. 2929.13(B) applies to one convicted of a fourth- or fifth-degree felony.
Poff was not convicted of a fourth- or fifth-degree felony.
R.C. 2929.13(C).
{¶19} R.C. 2929.13(C) applies to one convicted of a third-degree felony. This
provision therefore does not apply in Poff’s case.
R.C. 2929.13(D).
{¶20} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or
second degree, for a felony drug offense that is a violation of any provision of Chapter
2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison
term is specified as being applicable, and for a violation of division (A)(4) or (B) of section
2907.05 of the Revised Code for which a presumption in favor of a prison term is specified
as being applicable.
{¶21} R.C. 2929.13(D)(1) provides that when sentencing for a first or second-
degree felony “it is presumed that a prison sentence is necessary in order to comply with
the purposes and principles of sentencing.” Nonetheless, R.C. 2929.13(D)(2) provides
that “[n]otwithstanding the presumption … the sentencing court may impose a
community control sanction,” (emphasis added), but only if the sentencing court finds that
a community control sanction would (1) adequately punish the offender and protect the
public from future crime, and (2) not demean the seriousness of the offense because the
statutory less serious sentencing factors outweigh the more serious factors.
{¶22} Thus, in order to impose a community control sanction in the instant case,
the trial court would have been required to find that such a sanction would adequately
Morgan County, Case No. 20AP0005 8
punish Poff, that Poff was less likely to re-offend, and that such a sanction would not
demean the seriousness of the offense because Poff’s conduct was less serious than
conduct normally constituting the offense. State v. Morin, 5th Dist. Fairfield No. 2008–
CA–10, 2008–Ohio–6707, 2008 WL 5265857, ¶ 27.
{¶23} In the case at bar, the trial court weighed and considered R.C. 2929.13(D)
in Poff’s case and found Poff failed to overcome the presumption of imprisonment. Sent.
T. at 33-35.
R.C. 2929.14 (B)(2)(e).
{¶24} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court
can impose upon a defendant under specified circumstances. Poff was not given an
additional prison sentence.
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶25} This factor is not applicable to Poff’s case.
R.C. 2929.20.
{¶26} R.C. 2929.20 (I) is inapplicable, as Poff was not applying to the court for
judicial release.
{¶27} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912,
896 N.E.2d 124,
the court discussed the effect of the State v. Foster,
109 Ohio St.3d 1, 2006–Ohio–856,
845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court
severed the judicial-fact-finding portions of R.C. 2929.14, holding that “trial courts have
full discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Kalish at ¶ 1 and ¶ 11, citing
Foster at ¶ 100, See
Morgan County, Case No. 20AP0005 9
also, State v. Payne,
114 Ohio St.3d 502, 2007–Ohio–4642,
873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823.
{¶28} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes.
Kalish at ¶
13, see also State v. Mathis,
109 Ohio St.3d 54, 2006–Ohio–855,
846 N.E.2d 1; State v.
Firouzmandi supra at ¶ 29.
{¶29} Thus, post-Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong,
4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts
are still required to consider the general guidance factors in their sentencing decisions.
{¶30} There is no requirement in R.C. 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and recidivism
or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State
v. Gant, 7th Dist. Mahoning No. 04 MA 252, 2006–Ohio–1469, ¶ 60 (nothing in R.C.
2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial court
to set forth its findings), citing State v. Cyrus,
63 Ohio St.3d 164, 166,
586 N.E.2d
94(1992); State v. Hughes, 6th Dist. Wood No. WD–05–024, 2005–Ohio–6405, ¶10 (trial
court was not required to address each R.C. 2929.12 factor individually and make a
finding as to whether it was applicable in this case), State v. Woods, 5th Dist. Richland
No. 05 CA 46, 2006–Ohio–1342, ¶ 19 (“... R.C. 2929.12 does not require specific
Morgan County, Case No. 20AP0005 10
language or specific findings on the record in order to show that the trial court considered
the applicable seriousness and recidivism factors”) (citations omitted); State v. Taylor, 5th
Dist. Richland No. 17CA29,
2017-Ohio-8996, ¶23. In State v. Bump, this Court observed,
The failure to indicate at the sentencing hearing the court has
considered the factors in R.C. 2929.11 and 2929.12 does not automatically
require reversal. State v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–
5819, ¶ 8. “When the trial court does not put on the record its consideration
of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper
consideration to those statutes.” Id., citing
Kalish at ¶ 18, fn. 4. “The Code
does not specify that the sentencing judge must use specific language or
make specific findings on the record in order to evince the requisite
consideration of the applicable seriousness and recidivism factors.” State
v. Arnett, 88 Ohio St.3d 208, 215, 2000–Ohio–302.
5th Dist. Ashland No. 11-COA-028,
2012-Ohio-337, ¶12. See, also, State v. Cyrus,
63
Ohio St.3d 164, 166,
586 N.E.2d 94(1992) (“Nothing in the statute or the decisions of this
court imposes any duty on the trial court to set forth its reasoning.”).
{¶31} In the case at bar, the trial court considered the PSI report and the
statements made during the sentencing hearing. Upon review, we find that the trial court's
sentencing on the charges complies with applicable rules and sentencing statutes. The
sentence was within the statutory sentencing range. Furthermore, the record reflects that
the trial court considered the purposes and principles of sentencing and the seriousness
and recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised
Code. While Poff may disagree with the weight given to these factors by the trial judge,
Morgan County, Case No. 20AP0005 11
Poff’s sentence was within the applicable statutory range and therefore, we have no basis
for concluding that it is contrary to law. R.C. 2953.08(G)(2)(b) does not provide a basis
for an appellate court to modify or vacate a sentence based on its view that the sentence
is not supported by the record under R.C. 2929.11 and 2929.12. State v. Jones, Oh. Sup.
Ct. No. 2018-0444, 2020-Ohio-6729,
2020 WL 7409669(Dec. 18, 2020), ¶39.
{¶32} Poff’s First Assignment of Error is overruled.
II.
{¶33} In his Second Assignment of Error, Poff contends that the Trial Court erred
by awarding restitution and an excessive fine based upon speculation and further, the
trial court did not inquire into Poff’s ability to pay.
Standard of Review.
{¶34} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002,
59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004,
2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, State v. Bonnell,
140 Ohio St.3d 209, 2014–Ohio–3177,
16 N.E.2d 659, ¶28.
{¶35} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb,
18 Ohio St.3d 361 (1985). “Where the
Morgan County, Case No. 20AP0005 12
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
Restitution
{¶36} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a
sentence in order to compensate the victim for economic loss. “A trial court has discretion
to order restitution in an appropriate case and may base the amount it orders on a
recommendation of the victim, the offender, a presentence investigation report, estimates
or receipts indicating the cost of repairing or replacing property, and other information,
but the amount ordered cannot be greater than the amount of economic loss suffered as
a direct and proximate result of the commission of the offense.” State v. Lalain, 136 Ohio
St.3d 248, 2013–Ohio–3093, paragraph one of the syllabus; R.C. 2929.18(A)(1). As
relevant here, “[e]conomic loss” is defined in R.C. 2929.01(L) as “any economic detriment
suffered by a victim as a direct and proximate result of the commission of an offense and
includes any … medical cost … incurred as a result of the commission of the offense.”
A court’s order of restitution must be supported by competent, credible evidence. State
v. Warner,
55 Ohio St.3d 31, 69(1990).
{¶37} R.C. 2929.18(A)(1) provides that, “[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.” Accordingly, the statute mandates that the court must conduct a
hearing if the offender, victim, or survivor disputes the amount. State v. Lalain, 136 Ohio
Morgan County, Case No. 20AP0005 13
St.3d 248, 2013–Ohio–3093, 994 N.E.2d 423, ¶ 3. Accord, State v. Andrews, 5th Dist.
Delaware No. 15 CAA 12 0099,
2016-Ohio-7389, ¶37.
Issue for Appellate Review: Whether Poff disputed the amount of restitution
ordered by the trial judge.
{¶38} In the case at bar, the following exchange took place during the sentencing
hearing,
MR. HOWDYSHELL: Your Honor, before he does so, I -- I've told
him -- I've told [the victim] that the Court will have no ability to make a
finding for restitution unless he gives the Court a basis for that. So I would
ask for him to do so at this time.
THE COURT: How much do you have out-of-pocket expenses?
What's your expenses on this?
[THE VICTIM] It’s between –
THE COURT: Money.
[THE VICTIM] It’s between 12 and 15,000.
HE COURT: Well, that's -- that's a range.
[THE VICTIM] I -- I couldn't –
THE COURT: That's not a number.
[THE VICTIM]: I think it's – I couldn't give you a number. I don't have
exact receipts. I -- you know, I couldn't start, you know, doing the mileage
calculations, the -- the food, like all the medicines, the oils, the massages,
you know, the gym memberships. I'd be -- you know, it's – you know, I --
Morgan County, Case No. 20AP0005 14
that -- that's -- that's -- I -- I wish that could do better and give you a
number.
THE COURT: You're saying between 12 and 15,000?
[THE VICTIM]: Yes, your Honor, out of pocket.
THE COURT: So it's at least 12?
[THE VICTIM]: Yes.
THE COURT: There may be more but you're not sure, but it couldn't
be more than 15?
[THE VICTIM]: That -- that is my estimate. That -- that's a
reasonable estimate.
THE COURT: That's what you're telling us?
[THE VICTIM]: Yes.
THE COURT: All right. All right. Good enough then. Do you have
anything else you want to say?
[THE VICTIM]: No, your Honor. Thank you.
Sent. T. at 29-30. After the trial court sentenced Poff, including ordering restitution in the
amount of $12,000.00, Poff’s attorney stated,
MR WHITACRE: Also, with respect to restitution, obviously, I was not
provided any materials with respect to restitution, was not provided any
amounts of restitution. Obviously, the defendant's -- hasn't provided any
documentation outlining what his restitution amount is.
THE COURT: All right.
Morgan County, Case No. 20AP0005 15
MR. WHITACRE: So we would just object to that for the record as
well.
Sent. T. at 38.
{¶39} It is undisputed that the victim suffered economic loss as a result of Poff’s
conduct. After reviewing the record, we find that the trial court erred by ordering restitution
in the amount of $12,000. When an offender disputes the amount of restitution, R.C.
2929.28(A)(1) provides that “the court shall hold an evidentiary hearing on restitution [.]”
(Emphasis added). Once the court determines the amount of restitution at sentencing,
the defendant is given the opportunity to dispute the amount. If the amount is disputed,
then a hearing must be held to establish the appropriate amount of restitution. Lalain at ¶
22.
{¶40} We find the evidence is insufficient to show the amount of actual economic
loss with reasonable certainty and further, that Poff objected to the amount of restitution.
Fines and Court Costs
{¶41} Poff further objects the trial court’s imposition of a $15,000.00 fine and court
costs because the trial court did not first determine his ability to pay.
{¶42} By statute, the imposition of court costs on all convicted defendants is
mandatory. R.C. 2947.23(A)(1)(a) reads: “In all criminal cases, including violations of
ordinances, the judge or magistrate shall include in the sentence the costs of prosecution,
including any costs under section 2947.231 of the Revised Code, and render a judgment
against the defendant for such costs.” (Emphasis added.) As the Supreme Court has
explained, this strict statutory language “requires a court to impose costs against all
convicted defendants,” indigent or not. (Emphasis sic.) State v. White, 103 Ohio St.3d
Morgan County, Case No. 20AP0005 16
580, 2004-Ohio-5989,
817 N.E.2d 393, ¶ 8; State v. Taylor, __Ohio St.3d__, 2020-Ohio-
3514(July 2, 2020).
{¶43} R.C. 2929.19(B)(5) provides that before imposing a financial sanction,
including a mandatory fine under R.C. 2929.18(B)(1), “the court shall consider the
offender’s present and future ability to pay the amount of the sanction or fine.” There are
no express factors that must be considered or specific findings that must be made
regarding the offender’s ability to pay. State v. Saracco–Rios, 12th Dist. Madison Nos.
CA2016–02–011 and CA2016–03–014, 2016–Ohio–7192, ¶ 10. Compliance with R.C.
2929.19(B)(5) can be shown through the trial court’s use of a PSI report, which often
provides financial and personal information of the offender, in order to aid the trial court
in making its determination. State v. Johnson, 12th Dist. Butler No. CA2011-11-212, 2014–
Ohio–3776, ¶ 12.
{¶44} During the sentencing hearing, Poff’s attorney told the trial court,
Another good trait about my client is his work history. He's always
worked. Currently, he was employed with Kinney Excavating, has been
there since 2014. Prior to that, he's been with the union and in and out of
construction jobs with the union. There's no doubt that he is a productive
member of society.
…
I do have a letter from his employer. I'd like to just present that to the
Court. Briefly it just indicates my client's work ability, the fact that he showed
up -- Indicates he showed up to work on time and always had the I'll-work-
harder-than-you attitude. My client was actually very proud to receive that
Morgan County, Case No. 20AP0005 17
letter, didn't know that his boss felt that way about him. So he's -- he's glad
to know that when he gets released, that letter would indicate that he still
has a job there.
And I think that says a lot about a company, knowing what these
facts are, knowing that my client's going to be convicted of a felon -- felony,
knowing that he's going to go to prison, that when he gets out, he has a job.
I think that has a lot to say about a person.
Sent. T. at 15-17. The PSI report indicates that Poff was earning $39.73 per hour. Poff
further indicated that his monthly income was approximately $2,400.00 per month.
{¶45} The trial court stated that it considered the PSI report. The trial court
therefore considered Poff’s ability to pay the fines. Furthermore, Poff made no objection
regarding his ability to pay the fines during the sentencing hearing.
{¶46} Poff’s Second Assignment of Error is overruled with respect to his
arguments that the trial court erred in ordering Poff to pay a $15,000.00 fine and court
costs.
{¶47} Poff’s Second Assignment of Error is sustained as it pertains to the trial
court’s restitution order. The trial court’s order of restitution is vacated, and the matter is
remanded to the trial court for an evidentiary hearing pursuant to R.C. 2929.28(A)(1).
III.
{¶48} In his Third Assignment of Error, Poff contends that his trial counsel was
ineffective. Specifically, Poff argues that he was denied effective assistance of counsel
by his attorney recommending that he not speak to the pre-sentence investigator
concerning the facts of the case and did not demonstrate remorse. In addition, Poff
Morgan County, Case No. 20AP0005 18
suggests that if we find his attorney did not request a hearing on the amount of restitution,
then counsel rendered ineffective assistance.
Standard of Review.
{¶49} A claim for ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674(1984); State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373(1989).
{¶50} In determining whether counsel's representation fell below an objective
standard of reasonableness, judicial scrutiny of counsel's performance must be highly
deferential. Bradley at 142, 538 N.E.2d 373. Because of the difficulties inherent in
determining whether effective assistance of counsel was rendered in any give case, a
strong presumption exists counsel's conduct fell within the wide range of reasonable,
professional assistance.
Id.
{¶51} In order to warrant a reversal, the appellant must additionally show he was
prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the performance of trial
counsel. Lockhart v. Fretwell, 506 U .S. 364, 370, 113 S.Ct. 838,
122 L.Ed.2d 180(1993).
{¶52} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “… need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
Morgan County, Case No. 20AP0005 19
deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting
Strickland at 697. As such, we will
direct our attention to the second prong of the Strickland test.
Issue for Appellate Review: Whether there is a reasonable probability that, but
for counsel’s errors the result of the proceeding would have been different.
{¶53} Having reviewed the record that Poff cites in support of his claim that he
was denied effective assistance of counsel, we find Poff was not prejudiced by defense
counsel’s representation of him. The result of the trial was not unreliable nor were the
proceedings fundamentally unfair because of the performance of defense counsel. The
attempted murder charge was dismissed and the firearm specification was reduced to
one year through counsel’s efforts.
{¶54} Therefore, Poff has failed to establish that he has been prejudice by trial
counsel’s performance.
{¶55} Poff’s Third Assignment of Error is overruled.
Morgan County, Case No. 20AP0005 20
{¶56} For the foregoing reasons, the judgment of the Morgan County Court of
Common Pleas is affirmed, in part and reversed in part. The trial court’s order of restitution
is vacated, and the matter is remanded to the trial court for an evidentiary hearing on the
amount of restitution pursuant to R.C. 2929.28(A)(1).
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J. concur
WSG:clw 0205
