State v. Brown

[Cite as State v. Brown, 2024-Ohio-2004.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO :

:

Appellee : C.A. No. 29810

:

v. : Trial Court Case No. 2022 CR 03649

:

ANTHONY L. BROWN : (Criminal Appeal from Common Pleas

: Court)

Appellant :

:

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OPINION

Rendered on May 24, 2024

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MICHAEL HALLOCK, JR., Attorney for Appellant

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

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LEWIS, J.

{¶ 1} Defendant-Appellant Anthony L. Brown appeals his conviction of several

offenses in the Montgomery County Common Pleas Court. For the following reasons,

we will affirm the judgment of the trial court.

I. Procedural History and Brief Statement of Facts

{¶ 2} On December 30, 2022, Brown was indicted by a Montgomery County grand

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jury on one count of failure to comply with an order or signal of a police officer (serious

physical harm/substantial risk), in violation of R.C. 2921.331(B) and (C)(5), a felony of the

third degree (Count I); one count of grand theft (motor vehicle), in violation of R.C.

2913.02(A)(1), a felony of the fourth degree (Count II); one count of vandalism (business

& $1,000 or more), in violation of R.C. 2909.05(B)(1)(a), a felony of the fifth degree (Count

III); one count of vandalism (business – regardless of value), in violation of R.C.

2909.05(B)(1)(b), a felony of the fifth degree (Count IV); one count of vandalism

(government property), in violation of R.C. 2909.05(B)(2), a felony of the fifth degree

(Count V); and one count of obstructing official business, in violation of R.C. 2921.31(A),

a felony of the fifth degree (Count VI).

{¶ 3} The presentence investigation report (“PSI”) reflected that Brown’s charges

occurred as a result of events that transpired on December 24, 2022. One of the mothers

of Brown’s children reported to police that she had received threats from Brown and, when

he showed up in person, he chased after her. When officers responded, Brown fled the

area and ran onto Interstate 75, where he ran across the lanes of traffic and almost

caused several accidents.

{¶ 4} As Brown continued to flee into a hotel parking lot, he stole a truck and then

crashed it into multiple police cruisers in his attempt to elude the officers. Eventually,

officers were able to trap his vehicle and tackle him to the ground when he tried to flee

again on foot.

{¶ 5} On April 13, 2023, Brown entered negotiated no contest pleas to Counts I, II,

and III in exchange for the State dismissal of the remaining charges. The State indicated

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it would defer to the trial court for sentencing but would seek restitution. Following his

pleas, the trial court found Brown guilty, ordered that a PSI be completed, and scheduled

sentencing for April 27, 2023.

{¶ 6} At sentencing, the trial court imposed prison terms of 36 months for Count I,

18 months for Count II, and 12 months for Count III. Count I was ordered to be served

consecutively to Counts II and III, which were ordered to be served concurrently to one

another, for an aggregate term of 54 months in prison. Brown was ordered to pay court

costs as well as restitution in the amount of $7,807.55 to Butler Township for repairs to

the police cruisers. The trial court also imposed a 10-year driver’s license suspension.

Brown did not request a restitution hearing or object to restitution at the time of

sentencing.

{¶ 7} Brown filed a motion for a delayed appeal, which we granted, and now raises

one assignment of error.

II. Assignment of Error

{¶ 8} In his sole assignment of error, Brown argues that the trial court committed

plain error in imposing a financial sanction without considering Brown’s present and future

ability to pay. Brown acknowledges that where a trial court does not make an explicit

finding on the record at the time of sentencing regarding a defendant’s present or future

ability to pay, the court’s consideration of the issue may be inferred from the record under

appropriate circumstances. However, Brown contends that in this case, given the

information contained within the record, it does not demonstrate that the trial court

considered his present or future ability to pay restitution.

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{¶ 9} Brown concedes that appellate review of this matter is limited to noticing plain

error given that he did not raise an objection to the trial court's alleged failure. “A

defendant who does not dispute an amount of restitution, request a hearing, or otherwise

object waives all but plain error in regards to the order of restitution.” (Citation omitted.)

State v. Snowden, 2019-Ohio-3006, 140 N.E.3d 1112, ¶ 88 (2d Dist.). “Notice of plain

error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accordingly, we

will review his argument for plain error.

a. Applicable Law

{¶ 10} R.C. 2929.18(A)(1) provides that at the time of sentencing, a trial court may

impose financial sanctions, including an amount of restitution, upon a defendant’s

conviction for a felony. R.C. 2929.19(B)(5) requires the trial court to “consider the

offender's present and future ability to pay” before imposing restitution as a financial

sanction under R.C. 2929.18. The statute, however, “establishes no particular factors

for the court to take into consideration, nor is a hearing necessary before making this

determination.” (Citation omitted.) State v. Philbeck, 2d Dist. Montgomery Nos. 26466

& 26467, 2015-Ohio-3375, ¶ 27. “Moreover, although preferable, there is no

requirement that the trial court state on the record that it affirmatively considered the

defendant's present and future ability to pay a financial sanction at the time of sentencing.”

State v. Petticrew, 2d Dist. Clark No. 2022-CA-29, 2023-Ohio-159, ¶ 19, citing State v.

Parker, 2d Dist. Champaign No. 2003-CA-17, 2004-Ohio-1313, ¶ 42.

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{¶ 11} “Where the trial court fails to make an explicit finding on a defendant's

relative ability to pay, this court has observed that a trial court's consideration of this issue

may be ‘inferred from the record under appropriate circumstances.’ ” State v. Conley,

2015-Ohio-2553, 43 N.E.3d 775, ¶ 49 (2d Dist.), quoting Parker at ¶ 42. “The trial court

may comply with its obligation by considering a presentence investigation report (‘PSI’),

which includes information about the defendant's age, health, education, and work

history.” (Citation omitted.) State v. Willis, 2d Dist. Montgomery No. 24477, 2012-Ohio-

294, ¶ 4.

{¶ 12} Generally, a trial court’s imposition of restitution is reviewed on appeal for

an abuse of discretion. State v. Wilson, 2d Dist. Montgomery No. 26488, 2015-Ohio-

3167, ¶ 11. “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary, or unconscionable.” AAAA Ents., Inc. v. River Place Community Corp, 50 Ohio

St.3d 157, 161, 553 N.E.2d 597 (1990), citing Huffman v. Hair Surgeon, Inc., 19 Ohio

St.3d 83, 87, 482 N.E.2d 1248 (1985).

b. Analysis

{¶ 13} Brown claims that the present case is analogous to State v. Frock, 2d Dist.

Clark No. 2004-CA-76, 2007-Ohio-1026, wherein we held that the trial court erred in

ordering Frock to pay $17,029 in restitution where the record failed to demonstrate that

the court considered Frock’s present or future ability to pay restitution. Id. at ¶ 9. Like

the present case, the trial court in Frock made no direct inquiry into Frock's present or

future ability to pay restitution during the sentencing hearing but advised that it had

considered Frock's PSI. Id. at ¶ 8. The PSI revealed that Frock was 21 years old, had

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completed the eleventh grade while in prison, and had been diagnosed as bipolar and

paranoid schizophrenic. Id. Additionally, the PSI noted that Frock was a substance

abuser with an extensive criminal history that resulted in several juvenile and adult

confinements. Id. Although the PSI indicated that Frock was sporadically employed as

a laborer for his grandfather's painting business, where he was paid “under the table,” we

concluded that, given his lengthy prison sentence of 19.5 years and the discouraging

information about Frock in the PSI, the record “failed to demonstrate that the court

considered Frock's present or future ability to pay restitution.” Id. at ¶ 8–9.

{¶ 14} As in Frock, we agree with Brown that the trial court did not explicitly find at

the time of sentencing that Brown had a present or future ability to pay the restitution

amount imposed. But we disagree with him in determining whether the record

demonstrates that the trial court considered Brown’s present or future ability to pay

restitution.

{¶ 15} The record reflects that the trial court reviewed the PSI, Brown’s sentencing

memorandum, and the statements of the parties prior to imposing sentence. Although

not part of the record, the trial court indicated it had also reviewed video of the incident

that was the basis for the felony charges. At the time of sentencing, Brown was 33 years

old. Based on the 4.5-year prison term and the 127 days of jail time credit Brown had

accrued, he was expected to be released from prison when he was 37 years old. Brown

stated that he left high school in eleventh grade and had previously informed the probation

department that he obtained a GED, although his sentencing memorandum indicated that

he had not yet received a GED. Although Brown used illegal substances, had a lengthy

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criminal record, and had been to prison before as an adult, according to the PSI, Brown

worked from “time to time” in construction and rehabbing houses. Brown’s sentencing

memorandum stated that he had worked sporadically at minimum wage jobs, and prior to

his arrest he had worked for a power wash company. Brown also stated that he worked

in 2020 for a community organizational company that helped with voter registration.

Thus, even with his history of substance abuse and criminal record, Brown had been able

to successfully work while he was out of prison.

{¶ 16} The PSI further indicated that Brown had no financial obligations. Although

he had four children, all of his children were in the care and custody of their mothers, and

Brown had no open or pending child support cases for which he owed money. We

acknowledge that both Brown’s memorandum and the PSI reflected that he had some

mental health issues, including bi-polar disorder, post-traumatic stress disorder, and

depression. Nevertheless, the PSI indicated Brown was in “fairly good health,” and there

was nothing in the PSI indicating that Brown would be unable to work upon release from

his relatively short prison term.

{¶ 17} Based on this record, the trial court had adequate information from which to

evaluate Brown’s present and future ability to pay, and we can infer that the trial court

fulfilled its duty to consider Brown’s present and future ability to pay the restitution.

Accordingly, the trial court did not abuse its discretion, or commit plain error, in ordering

Brown to pay the restitution as ordered.

{¶ 18} Brown’s sole assignment of error is overruled.

III. Conclusion

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{¶ 19} Having overruled Brown’s assignment of error, the judgment of the trial

court is affirmed.

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EPLEY, P.J. and WELBAUM, J., concur.