                                     ___________

                                     No. 96-1264
                                    ___________

David Barber,                            *
                                      *
      Plaintiff-Appellant,             *
                                      * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Arkansas.
Shirley S. Chater,                    *
Commissioner, Social Security         *      [UNPUBLISHED]
Administration,                       *
                                       *
      Defendant-Appellee.              *

                             __________________________

                             Submitted:   June 13, 1996

                                 Filed: August 6, 1996
                            __________________________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit                Judge,
and KORNMANN, District Judge.*

PER CURIAM.

      David Barber appeals the judgment of the district court1 affirming
the   Social    Security     Administration's   denial    of   disability   insurance
benefits.      We affirm.

      *
       The HONORABLE CHARLES B. KORNMANN, United States
      District Judge for the District of Minnesota, sitting
      by designation.
      1
      The HONORABLE H. DAVID YOUNG, United States Magistrate
Judge for the Eastern District of Arkansas, to whom the case was
referred for final disposition by consent of the parties pursuant
to 28 U.S.C. § 636(c).
I. BACKGROUND

        David   Barber,   a   thirty-eight   year   old   man   with   a   ninth-grade
education and past relevant work experience as an assembly line worker,
maintenance worker, and car detailer, first applied for disability benefits
on August 30, 1988, claiming permanent disability due to neck and back
injuries suffered when a transmission fell on him.              Following the Social
Security Administration's denial of benefits and a convoluted procedural
history which we will not recount here, a second supplemental hearing was
held on November 8, 1993, at which Barber, his wife, and a vocational
expert each testified.        The administrative law judge (ALJ) denied Barber
disability benefits based on his finding that Barber was capable of
performing past relevant work as a car detailer.

        The ALJ followed the sequential five-step analysis set forth in the
regulations.     See 20 C.F.R. § 404.1520(a)-(f) (1993).          The ALJ found that
Barber had not engaged in substantial gainful activity since November 5,
1986.     He also found that Barber suffered from a mild cervical disc
degeneration and spondylosis at C4-5, borderline intellectual functioning,
a dysthymic disorder, and a series of psychological disorders affecting his
physical condition, including a mixed personality disorder NOS with
passive/aggressive and schizotypal characteristics, a panic disorder with
agoraphobia, and a somatoform pain disorder.         The ALJ found, however, that
these impairments were not severe enough to meet, or in combination, to
equal a listed impairment.         The key determination in this case is step
four, in which the ALJ determines whether the claimant's impairment
precludes him from performing past relevant work.          20 C.F.R. § 404.1520(e).
The ALJ discredited Barber's subjective complaints of pain and found that
Barber retained the residual functional capacity to perform work-related
activities that did not involve heavy manual labor or work requiring
overhead activities, or heavy repetitive pushing or

                                         2
pulling.      The ALJ also found that Barber's mental impairments would
preclude him from performing only tasks involving unusual stress, highly
complex tasks, or a high level of judgment.          As a result, the ALJ found
that Barber's impairments did not preclude him from performing past
relevant work as a car detailer.        Following the Appeals Council's denial
of his request for review, Barber sought review in the district court.           On
January 3, 1996, the magistrate granted the Commissioner's motion for
summary judgment and dismissed Barber's complaint.          Barber appeals.

II. DISCUSSION

      We review the denial of social security benefits to determine whether
the   ALJ's decision is supported by substantial evidence on the record as
a whole.    Novotny v. Chater, 72 F.3d 669, 671 (8th Cir. 1995).       Substantial
evidence is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."         Id. (quotations omitted).      We must
affirm the decision of the ALJ so long as substantial evidence supports his
position, regardless of whether substantial evidence supports an alterative
conclusion.    Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996).

      Barber first argues that the ALJ improperly discounted his subjective
complaints of pain.     He points out that he has been diagnosed as suffering
from a somatoform disorder, a psychiatric malady causing the victim to have
an exaggerated perception of his physical ailments.              The ALJ may not
summarily dismiss a claimant's subjective claims such as a somatoform
disorder without expressly determining that the claimant's testimony is not
credible.   Metz v. Shalala, 49 F.3d 374, 377 (8th Cir. 1995).        Instead, the
ALJ must consider the claimant's prior work history, as well as any
observations     by   third   parties   regarding:   (1)   the   claimant's   daily
activities; (2) the duration, intensity, and frequency of the pain; (3)
dosage, effectiveness, and side effects of medication; (4) precipitating
and aggravating factors; and (5) functional

                                        -3-
                                         3
restrictions.     Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992).

     The ALJ properly applied this framework by noting several telling
inconsistencies that undermined Barber's complaints of pain, specifically:
(1) a consistent absence of objective medical evidence supporting Barber's
claimed level of pain; (2) repeated observations by treating physicians
that Barber was deliberately exaggerating his symptoms; (3) Barber's
relatively unrestricted range of daily activities; (4) Barber's sporadic
and conservative treatment history coupled with the low dosage of his pain
medication; and (5) Barber's poor work history.    "The ALJ may discount the
claimant's allegations of pain when he explicitly finds them inconsistent
with daily activities, lack of treatment, demeanor, and objective medical
evidence."      Jones, 86 F.3d at 826.     Moreover, the ALJ made a specific
finding that Barber's subjective complaints of disabling pain were simply
not credible.    "If an ALJ explicitly discredits a claimant's testimony and
gives a good reason for doing so, we will normally defer to that judgment."
Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990).         Each of these
inconsistencies is well-supported by the record, and the mere fact that the
record does contain some support for Barber's claim that he is suffering
from some degree of somatoform disorder does not require reversal in light
of the ALJ's express credibility determination.    See Metz, 49 F.3d at 377.
We conclude that substantial evidence supports the ALJ's evaluation of
Barber's subjective complaints of pain, including his somatoform disorder.

  Barber next contends that his mental impairments preclude his return to
past relevant work as a car detailer.        The ALJ's finding that Barber's
mental impairments would preclude him from performing only tasks involving
unusual stress, highly complex tasks, or a high level of judgment, however,
is also supported by substantial evidence.        Dr. William Wilkins rated
Barber's capacity to return to work as fair to good.       Dr. Joseph Crupie
found Barber "oriented to

                                     -4-
                                      4
time, place, and person" with a "low average IQ," "no gross cognitive
deficit," and an adequate ability to concentrate.   Dr. B. Eliot Cole found
Barber to be "alert, pleasant, and cooperative" with no evidence of
hallucinations or delusions and rated Barber's ability to return to work
as fair.   Dr. Ken Dowless found Barber to be "fully oriented and alert"
although suffering from situational depression.   A second consultation with
Dr. Cole characterized Barber as alert and logical with "no problems with
attention, but some difficulty with concentration."

      This evidence supports the ALJ's determination that, despite Barber's
depression and anxiety, he is still capable of communicating, behaving
properly, exercising basic judgment, and carrying out simple instructions.
While Dr. W. Gerald Fowler opined that Barber's mental impairments rendered
him   incapable of performing even a low stress job involving simple
instructions, that diagnosis is at odds with the clear weight of the
psychiatric record as a whole.   Accordingly, the ALJ properly discounted
Dr. Fowler's opinion in favor of the conflicting substantial evidence.
Piepgras v. Chater, 76 F.3d 233, 236-37 (8th Cir. 1996).

III. CONCLUSION

      Accordingly, we affirm.

      A true copy.

           Attest:

                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                   -5-
                                    5


317 F.2d 171
William C. BUTLER, Appellant,v.UNITED STATES of America, Appellee.
No. 17351.
United States Court of Appeals District of Columbia Circuit.
Argued March 13, 1963.
Decided April 11, 1963.
Petition for Rehearing Denied May 13, 1963.

Mr. Lewis Carroll, Washington, D. C., with whom Mr. Bernard A. Foster, Jr., Washington, D. C., (both appointed by this court) was on the brief for appellant.
Mr. Max Frescoln, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty. and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before BAZELON, Chief Judge, and WASHINGTON and BURGER, Circuit Judges.
PER CURIAM.

1
After a trial by jury, appellant was convicted of housebreaking and larceny, and sentenced to serve concurrent sentences of three years and four months to ten years imprisonment.

2
On appeal he challenges the sufficiency of the evidence. Our review of the record indicates that there was sufficient evidence on each of the elements of the crimes charged to warrant a jury to find guilt beyond a reasonable doubt.

3
Appellant also challenges the trial court's instructions to the jury and sentencing procedure. These points were not raised below, and the alleged errors do not warrant invocation of Rule 52(b), Fed.R.Crim.P.

4
With respect to other matters raised by appellant, we find no errors affecting substantial rights. His conviction must therefore be

5
Affirmed.


DISMISS; and Opinion Filed August 4, 2014.

                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                     No. 05-14-00232-CR

                     MICHAEL ANTHONY-BARRY JORDAN, Appellant

                                               V.

                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 86th Judicial District Court
                                  Kaufman County, Texas
                             Trial Court Cause No. 32285-86

                              MEMORANDUM OPINION
                       Before Justices Moseley, O’Neill, and FitzGerald

       Appellant, who is representing himself in this appeal, filed a motion in the trial court to

dismiss his appeal. The motion is in the clerk’s record that was filed on May 6, 2014. We will

treat the motion as having been filed in this Court as of that same date. The Court GRANTS the

motion and ORDERS that the appeal be DISMISSED and this decision be certified below for

observance. See TEX. R. APP. P. 42.2(a).

                                                      PER CURIAM

Do Not Publish
TEX. R. APP. P. 47

140232F.U05
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

MICHAEL ANTHONY-BARRY JORDAN,                     On Appeal from the 86th Judicial District
Appellant                                         Court, Kaufman County, Texas
                                                  Trial Court Cause No. 32285-86.
No. 05-14-00232-CR        V.                      Opinion delivered per curiam before Justices
                                                  Moseley, O’Neill, and FitzGerald.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, we DISMISS the appeal.

Judgment entered this 4th day of August, 2014.


[Cite as State v. Gessel, 2020-Ohio-403.]

                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     WILLIAMS COUNTY

State of Ohio                                   Court of Appeals No. WM-19-004

        Appellee                                Trial Court No. 19CR000027

v.

Steve A. Gessel                                 DECISION AND JUDGMENT

        Appellant                               Decided: February 7, 2020

                                            *****

        Katherine J. Zartman, Williams County Prosecuting Attorney, and
        Stacey S. Stiriz, Assistant Prosecuting Attorney, for appellee.

        Karin L. Coble, for appellant.

                                            *****

        MAYLE, J.

        {¶ 1} Appellant, Steve A. Gessel, appeals the April 11, 2019 judgment of the

Williams County Court of Common Pleas, sentencing him to an aggregate prison term of

96 months and ordering him to pay costs and appointed counsel fees following his
conviction on two counts of unlawful sexual conduct with a minor. For the reasons that

follow, we reverse the trial court judgment.

                                     I. Background

       {¶ 2} On January 15, 2019, Steve A. Gessel was indicted on one count of

abduction in violation of R.C. 2905.02(A)(2), a third-degree felony (Count 1); two counts

of rape in violation of R.C. 2907.02(A)(2), both first-degree felonies (Counts 2 and 3);

unlawful sexual conduct with a minor in violation of R.C. 2907.04(A)(B)(3), a third-

degree felony (Count 4); and kidnapping in violation of R.C. 2905.01(A)(4)(C)(1), a

first-degree felony (Count 5). Gessel was appointed counsel and appeared before the trial

court on January 17, 2019 for his arraignment. He entered a not guilty plea to all counts.

       {¶ 3} On March 11, 2019, Gessel appeared for a change of plea hearing. Prior to

entering his new plea, the state amended Count 2 of the indictment from rape to unlawful

sexual conduct with a minor, a third-degree felony. Gessel then entered a guilty plea to

the amended Count 2 and to Count 3. On April 10, 2019, the trial court sentenced him to

48 months in prison with five years of mandatory postrelease control on each count. The

trial court ordered the sentences imposed to be served consecutively for an aggregate

prison sentence of 96 months. The trial court also ordered Gessel to pay all costs of

prosecution, costs for court-appointed counsel, and all permitted supervision fees. The

trial court dismissed the remaining counts at the state’s request and its judgment entry

was journalized the following day.

2.
       {¶ 4} Gessel timely appeals and asserts the following errors for our review:

              1. The imposition of consecutive sentences is not supported by the

       record.

              2. The trial court’s order to pay attorney fees and costs must be

       reversed for failure to find Gessel had the ability to pay.

                                   II. Law and Analysis

       {¶ 5} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings, 6th

Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or vacate

and remand a trial court’s imposition of consecutive sentences only if we clearly and

convincingly find that: (1) “the record does not support the sentencing court’s findings

under division * * * (C)(4) of section 2929.14, * * *” or (2) “the sentence is otherwise

contrary to law.” Id., citing R.C. 2953.08(G)(2). Because Gessel’s arguments all relate

to the sentence imposed by the trial court, we utilize this standard in reviewing each of

Gessel’s assignments of error.

                              a. Assignment of Error No. 1

       {¶ 6} In his first assignment of error, Gessel argues that the trial court’s order to

serve his sentences consecutively is contrary to law because the trial court failed to make

the necessary findings under R.C. 2929.14(C)(4). A trial court’s failure to make the

necessary findings under R.C. 2929.14(C)(4) does indeed render the imposition of

consecutive sentences contrary to law. See State v. Bonnell, 140 Ohio St.3d 209,

3.
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37; State v. Kubat, 6th Dist. Sandusky No. S-13-046,

2015-Ohio-4062, ¶ 35.

      {¶ 7} R.C. 2929.14(C)(4) provides as follows:

             If multiple prison terms are imposed on an offender for convictions

      of multiple offenses, the court may require the offender to serve the prison

      terms consecutively if the court finds that the consecutive service is

      necessary to protect the public from future crime or to punish the offender

      and that consecutive sentences are not disproportionate to the seriousness of

      the offender’s conduct and to the danger the offender poses to the public,

      and if the court also finds any of the following:

             (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.

4.
              (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the offender.

{¶ 8} This statute requires the trial court to make three statutory findings before imposing

consecutive sentences. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d

1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26.

It must find (1) that consecutive sentences are necessary to protect the public or to punish

the offender; (2) that consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger that the offender poses to the public; and (3) that

R.C. 2929.14(C)(4)(a), (b), or (c) is applicable. Beasley at ¶ 252. “[T]he trial court must

make the requisite findings both at the sentencing hearing and in the sentencing entry.”

(Emphasis in original.) Id. at ¶ 253, citing Bonnell at ¶ 37. While “a word-for-word

recitation of the language of the statute is not required,” a reviewing court must be able to

discern that the trial court engaged in the correct analysis and the record must contain

evidence to support the trial court’s findings. Bonnell at ¶ 29.

                  i. The trial court engaged in the appropriate analysis to
                 determine consecutive sentences were not disproportionate
                        to the danger appellant poses to the public.

       {¶ 9} Gessel first argues his sentence was contrary to law because the trial court

failed to find that the imposition of consecutive sentences are not disproportionate to the

danger he poses to the public. In order to impose consecutive sentences, the trial court

must determine that consecutive sentences are “not disproportionate to the seriousness of

5.
the offender’s conduct and to the danger the offender poses to the public.” R.C.

2929.14(C)(4). (Emphasis added). Gessel acknowledges the trial court properly found

consecutive sentences were not disproportionate to his conduct both at the sentencing

hearing and in its judgment entry. He argues, however, that the imposition of

consecutive sentences is defective because the trial court failed to also find that

consecutive sentences were not disproportionate to the danger he posed to the public.

       {¶ 10} At the sentencing hearing, the trial court did not recite the precise language

from R.C. 2929.14(C)(4) regarding the proportionality of consecutive sentences.

However, “the trial court is ‘not required to cite any “magic” or “talismanic” words when

imposing consecutive sentences provided it is ‘clear from the record that the trial court

engaged in the appropriate analysis.’” State v. Long, 6th Dist. Wood Nos. WD-14-042,

WD-14-043, 2015-Ohio-920, ¶ 7, citing State v. Wright, 6th Dist. Lucas Nos. L-13-1056,

L-13-1057, L-13-1058, 2013-Ohio-5903, ¶ 33. Through our review of the record, we

find the trial court did engage in the appropriate analysis regarding the imposition of

consecutive sentences and Gessel’s danger to the public.

       {¶ 11} When imposing the sentence, the trial court stated that it had to “consider

the general public” in determining Gessel’s sentence and to “protect the public from

future crime by [Gessel].” From these statements it is clear that the trial court considered

the danger Gessel posed to the public when determining his sentence. Therefore, the

record shows that the trial court engaged in the correct analysis when imposing

6.
consecutive sentences. Bonnell at ¶ 29. Gessel’s argument that the trial court’s failure to

explicitly state this finding is without merit.

       {¶ 12} Notably, Gessel’s argument has already been rejected by other Ohio courts.

In holding the trial court did not need to explicitly state its disproportionality findings, the

Second District Court of Appeals stated:

       [i]f we require the trial court to say more than was said in this case, we are

       effectively requiring courts to follow precisely the language of the statute

       or, worse yet, simply to read the statutory language into the record to

       merely satisfy the statutory consecutive-sentences requirement. The focus

       should be on whether the trial court performed the required analysis and

       made appropriate conclusions, not on whether it can read the statute into

       the record.

State v. Polhamus, 2d Dist. Miami No. 2013-CA-3, 2014-Ohio-145, ¶ 30. See also State

v. Hargrove, 10th Dist. Franklin No. 15AP-102, 2015-Ohio-3125; State v. Chaney, 2d

Dist. Clark No. 2015-CA-116, 2016-Ohio-5437.

       {¶ 13} We therefore find that the trial court completed the appropriate analysis and

its omission of specific statutory language does not warrant reversal.

             ii. The trial court failed to find appellant’s offenses were committed
                        as part of one or more courses of conduct.

       {¶ 14} Next, Gessel argues that the trial court failed to find that his two offenses

were committed as part of one or more courses of conduct. In imposing consecutive

7.
sentences, the trial court invoked R.C. 2929.14(C)(4)(b) which requires this finding.

While the trial court’s sentencing order reflects this finding, Gessel argues that the trial

court’s failure to address this issue at the sentencing hearing was error. We agree.

       {¶ 15} When imposing consecutive sentences at the hearing, the trial court stated:

       I do find that consecutive prison sentences are necessary to protect the

       public and to punish you for your conduct. Further, I am going to find that

       your harm was so great and unusual to this victim that concurrent sentences

       [d]o not adequately reflect the seriousness of your conduct and therefore,

       consecutive sentences are necessary.

Absent from this statement is any finding that Gessel’s offenses were committed as part

of one or more courses of conduct. We are unable to identify any part of the record that

suggests the court properly reached this conclusion and merely omitted its finding when

imposing a sentence. Therefore, we find the trial court’s imposition of consecutive

sentences was contrary to law for failing to reach this necessary finding.

     iii. The record supports the trial court’s finding of great or unusual harm.

       {¶ 16} The trial court found the harm arising from Gessel’s conduct was so great

that no single prison sentence adequately reflected the seriousness of his conduct. This

finding was made at both the sentencing hearing and in the trial court’s judgment entry.

Gessel argues that no evidence of “great or unusual harm” was presented at the

sentencing hearing and, therefore, the trial court’s finding was not supported by the

record. We disagree.

8.
        {¶ 17} A trial court’s finding of great or unusual harm must be supported by actual

evidence, not just the potential for such harm. State v. Williams, 6th Dist. Lucas Nos.

L-15-1259, L-15-1260, 2016-Ohio-4905, ¶ 27. Nonetheless, we may reverse only if we

find by clear and convincing evidence that the finding of great or unusual harm is not

supported by the record. Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, at

¶ 20.

        {¶ 18} Here, at the time of his guilty plea, the state informed the trial court that

“through conversations with the victim, the victim would prefer to remain anonymous

and has asked the court (sic), the state to try and resolve such so that she does not have to

testify or re-live these offenses[.]” At sentencing, Gessel was asked whether he

considered the impact of his conduct on his victim. He stated, “I worry about her. I

mean I don’t know what kind of impact it caused. I’m hoping it didn’t disturb her in any

horrible way but I mean I’m not sure to be honest.”

        {¶ 19} The state’s representation that the victim did not wish to relive Gessel’s

offenses shows that she suffered great harm from his conduct. Gessel is unable to refute

this concern, either at the sentencing or in this appeal, by pointing to clear and

convincing evidence demonstrating that the trial court erred in making that conclusion.

Goings at ¶ 20, R.C. 2953.08(G)(2). We therefore find that the record supports the trial

court’s finding that the victim suffered great or unusual harm. See State v. Eager, 3d

Dist. Henry No. 7-15-02, 2015-Ohio-3525 (holding appellant’s acknowledgement of

victim’s emotional distress as a result of his offenses was sufficient to show great and

9.
unusual harm); Williams at ¶ 28 (holding the state’s representations at the plea hearing

regarding the intimidation of witnesses as a result of appellant’s gang affiliation was

sufficient to support a finding of great or unusual harm).

                  iv. The trial court’s failure to make all necessary findings
                         at the sentencing hearing requires remand.

       {¶ 20} The trial court properly found that the imposition of consecutive sentences

was not disproportionate to the danger Gessel poses to the public. Further, the record

supports the trial court’s finding that Gessel’s victim suffered great or unusual harm

resulting from his conduct. But, the trial court failed to make a finding that Gessel’s

offenses were part of one or more courses of conduct before imposing consecutive

sentences as required by R.C. 2929.14(C)(4)(b). This failure requires us to reverse the

trial court’s judgment and remand for a new sentencing hearing. See Kubat, 6th Dist.

Sandusky No. S-13-046, 2015-Ohio-4062, at ¶ 38, quoting State v. Corker, 10th Dist.

Franklin Nos. 13AP-264, 13AP- 265 and 13AP-266, 2013-Ohio-5446, ¶ 38 (“‘[W]hen

the trial court fails to articulate the appropriate findings required by R.C. 2929.14(C)(4),

the case is to be remanded for the trial judge to consider whether consecutive sentences

are appropriate under [R.C. 2929.14(C)(4)] and, if so, to enter the proper findings on the

record.’”).

       {¶ 21} Accordingly, we find Gessel’s first assignment of error well-taken.

10.
                              b. Assignment of Error No. 2

       {¶ 22} In his second assignment of error, Gessel argues that the trial court erred in

ordering him to pay court-appointed attorney’s fees and costs without first determining

whether he has, or reasonably may be expected to have, the means to pay those costs.

We agree.

       {¶ 23} At the sentencing hearing, the trial court notified Gessel that it was

imposing “attorney’s fees and costs” against him. The trial court did not specify which

costs it was imposing at the hearing but in its sentencing entry stated “[d]efendant is

ordered to pay all costs of prosecution, any court-appointed counsel costs, and any

supervision fees permitted, pursuant to R.C. 2929.18(A)(4)[.]” Gessel requests that the

discretionary costs be vacated due to the trial court’s failure to determine his ability to

pay.

       {¶ 24} We must first determine which costs are mandatory and which are

“discretionary.” We previously held that prosecution costs and fees permitted pursuant to

R.C. 2929.18(A)(4) are mandatory costs not conditioned on an offender’s ability to pay.

State v. Lantz, 6th Dist. Fulton No. F-18-011, 2019-Ohio-3307, ¶ 12, 18. The trial court

properly imposed these mandatory costs against Gessel.

       {¶ 25} The costs of supervision and assigned counsel, however, are not mandatory

and “must be conditioned on appellant’s ability to pay.” State v. Wymer, 6th Dist. Lucas

No. L-18-1108, 2019-Ohio-1563, ¶ 14. To impose these costs, the trial court must

affirmatively find that the defendant has, or reasonably may be expected to have, the

11.
ability to pay. Id.; State v. Grey, 6th Dist. Lucas No. L-15-1072, 2015-Ohio-5021, ¶ 21.

While the court need not conduct a formal hearing as to the defendant’s ability to pay

these costs, a finding of his ability to pay must be supported by clear and convincing

evidence in the record. Id. When the record on appeal contains no evidence reflecting

the trial court’s consideration of present or future ability to pay these costs—such as

consideration of defendant’s age, health, employment history, or level of education—the

imposition of these costs is improper and must be vacated. State v. Stovall, 6th Dist.

Lucas No. L-18-1048, 2019-Ohio-4287, ¶ 37.

       {¶ 26} Here, the trial court failed to make any finding regarding Gessel’s ability to

pay the discretionary costs at either his sentencing hearing or in its judgment entry. The

trial court failed to address any evidence of Gessel’s ability to pay these costs during the

underlying proceedings. Thus, Gessel’s second assignment of error is found well-taken.

We, therefore, vacate the award of costs of supervision and assigned counsel.

                                      III. Conclusion

       {¶ 27} We find both of Gessel’s assignments of error well-taken. The trial court

failed to properly consider whether Gessel’s offenses were part of one or more courses of

conduct under R.C. 2929.14(C)(4)(b) before imposing consecutive sentences. We,

therefore, reverse and remand this matter to the trial court for resentencing in accordance

with this decision.

12.
       {¶ 28} Additionally, because the trial court failed to determine Gessel’s ability to

pay costs of supervision and appointed counsel fees before imposing such costs, we

vacate the trial court’s award of these non-mandatory costs. All costs of prosecution and

fees permitted pursuant to R.C. 2929.18(A)(4) were properly imposed and are not

vacated by this decision.

       {¶ 29} The costs of this appeal are assessed to the state pursuant to App.R.24.

                                                                         Judgment reversed
                                                                            and remanded.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Christine E. Mayle, J.                                      JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.

13.


285 F.2d 855
FIRST NATIONAL BANK OF BOSTON, Plaintiff, Appellant,v.Mirla SANTISTEBAN, Defendant, Appellee.
No. 5663.
United States Court of Appeals First Circuit.
Jan. 10, 1961.

Samuel J. Davidson, Jersey, City, N.J., with whom Joshua Hellinger, San Juan, P.R., was on brief, for appellant.
Appellee not appearing.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit judges.
ALDRICH, Circuit Judge.

1
The plaintiff recovered a judgment of some $13,000 in the United States District Court for the District of Puerto Rico, but the Marshal returned the execution unsatisfied.  The plaintiff thereupon filed a motion in the district court in which it recited that the defendant was without discoverable assets, but was employed by the Puerto Rico Ports Authority on a monthly salary, wherefore plaintiff requested on order compelling defendant to pay $70 a month until its judgment was paid and satisfied.1  The court denied plaintiff's motion, 181 F.Supp. 366 and plaintiff appeals.

2
The plaintiff's brief is largely directed to a claim that the court abused its discretion.  The Court did not consider this a matter of discretion, nor do we.  Garnishment of future wages by order against any employer is unknown in Puerto Rico.  This is because unearned wages are not property.  Diego Agueros & Co. v. Heres, 1936, 50 P.R.R. 510; Rodriguez v. Fontes, 1937, 51 P.R.R. 648.  Hence it may well be, as plaintiff contends, that its only effectual remedy against defendant would be a continuing court order directed against the defendant under which she would be in contempt for failure to pay.  However, the United States District Court is not a collection agency.  It is true that Federal Rule of Civil Procedure 69(a), 28 U.S.C. provides that the court, 'in proceedings * * * in aid of a judgment and * * * on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held,' and that under Puerto Rico Rule 51.4, (Rules of Civil Procedure for the General Court of Justice, 1958) 'the court may make any order which it considers just and necessary for the execution of a judgment.'  But it is clear from an examination of this and its companion local rules, as well as the predecessor statutory provisions, T. 32, 1211-1218, that the contemplated orders relate solely to execution and levy, and not to the more general issue of satisfaction of judgments.  In other words, the concern of the court thereunder is with attachable property and how it may be come by, and does not include in personam orders such as this, either to the defendant or anyone else, with respect to property not yet in existence.

3
Judgment will be entered affirming the order of the District Court.

1
 This figure was computed as one-quarter of defendant's salary, as three-quarters of all earnings for personal services are exempt from execution under the Laws of Puerto Rico, T. 32, 1130