State v. Weaver , 2013 Ohio 2417 ( 2013 )

[Cite as State v. Weaver, 2013-Ohio-2417.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 12 CA 11
DANNEL H. WEAVER
Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 11 CR 033
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 10, 2013
APPEARANCES:
For Appellee For Appellant
No Appearance DAVID M. HUNTER
244 West Main Street
Loudonville, Ohio 44842
Holmes County, Case No. 12 CA 11 2
Wise, P. J.
{¶1} Appellant, Dannel H. Weaver, appeals an entry from the trial court denying
his motion “for stay of fines and court costs.” Appellant entered a guilty plea to one
count of Illegal Assembly or Possession of Chemicals for the Manufacture of
Methamphetamine, a felony of the third degree, in violation of Revised Code
2925.041(A) and one count of Possession of Methamphetamine, a felony of the fifth
degree, in violation of Revised Code 2925.11(A).
{¶2} Appellant was sentenced to a total term of three years in prison. The trial
court also imposed a fine of $5,000.00. Appellant did not appeal his conviction or
sentence. Subsequently, Appellant filed a motion to stay the fines and court costs. The
trial court denied the motion, and this Court permitted a delayed appeal.
{¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth one proposed
Assignment of Error. Appellant was given an opportunity to file his own brief raising any
additional assignments of error, however, no pro se brief was filed.
I.
{¶4} “WHETHER THE COURT ERRED IN OVERRULING DEFENDANT’S
MOTION TO VACATE FINES AND COSTS?”
{¶5} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
Holmes County, Case No. 12 CA 11 3
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.
{¶6} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738. We find the appeal to be wholly frivolous and grant counsel’s
motion to withdraw. For the reasons which follow, we affirm the judgment of the trial
court:
I.
{¶7} In his first Assignment of Error, Appellant argues the trial court erred in
overruling his motion to stay fines and costs.
{¶8} The decision to impose or waive a fine rests within the sound discretion of
the court and will not be reversed on appeal absent an abuse of that discretion. State v.
Gipson (1998), 80 Ohio St.3d 626, 634, 687 N.E.2d 750. “The term ‘abuse of discretion’
connotes more than an error of law or of judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151,
157, 404 N.E.2d 144.
{¶9} As this Court explained in State v. Perry, 5th Dist. No. 2004-CA-00066,
2005-Ohio-85:
Holmes County, Case No. 12 CA 11 4
{¶10} “ ‘[T]here are no express factors that must be taken into consideration or
findings regarding the offender's ability to pay that must be made on the record.’ State v.
Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318, 2000-Ohio-1942. Although a court
may hold a hearing under R.C. 2929.18(E) ‘to determine whether the offender is able to
pay the [financial] sanction or is likely in the future to be able to pay it,’ a court is not
required to do so. State v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001,
unreported (‘although the trial court must consider the offender's ability to pay, it need
not hold a separate hearing on that issue’). ‘All that R.C. 2929.19(B)(6) requires is that
the trial court consider the offender's present and future ability to pay.’ State v.
Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-1062, at 36; Martin, 140 Ohio
App.3d at 33, 746 N.E.2d 642” Id. at *4-5, 746 N.E.2d 642. See also State v.
Thompson, 5th Dist. No. 06-CA-62, 2008-Ohio-435, at ¶ 19. While it would be
preferable for the trial court to expressly state on the record that it has considered a
defendant's present and future ability to pay a fine, it is not required. State v. Parker,
2nd Dist. No. 03CA0017, 2004-Ohio-1313, ¶ 42, citing State v. Slater, 4th Dist. No. 01
CA2806, 2002-Ohio-5343. “The court's consideration of that issue may be inferred from
the record under appropriate circumstances.” Id.{¶11} The record in this case reveals the trial court made a specific finding that
Appellant had a future ability to pay the fines and costs. For this reason, we cannot say
the record demonstrates the trial court abused its discretion in imposing a fine and court
costs. Further, because the trial court did not abuse its discretion in imposing the fine
and costs, it was not error for the court to refuse to stay the imposition of the fines and
costs.
Holmes County, Case No. 12 CA 11 5
{¶12} The Second District Court of Appeals has held a trial court lacks authority
to stay the imposition of fines and costs once imposed. See State v. Wilson 2012 WL
1264519, 3 (Ohio App. 2 Dist.). They explain a trial court may waive fines and costs
upon a finding of indigence, but there is no statutory authority for staying the fines and
costs. Id. at ¶24.
{¶13} Appellant has provided no caselaw or statutory authority for the right to
have fines and costs stayed.
{¶14} For these reasons, Appellant’s proposed Assignment of Error is overruled.
{¶15} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal.
Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request
to withdraw, and affirm the judgment of the Court of Common Pleas, Holmes County,
Ohio.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
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JUDGES
JWW/d 0521
Holmes County, Case No. 12 CA 11 6
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Appellee :
:
-vs- : JUDGMENT ENTRY
:
DANNEL H. WEAVER :
:
Appellant : Case No. 12 CA 11
After independently reviewing the record, we agree with counsel's conclusion that
no arguably meritorious claims exist upon which to base an appeal. Hence, we find the
appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and
affirm the judgment of the Court of Common Pleas, Holmes County, Ohio.
Costs assessed to Appellant.
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JUDGES