State v. McQuillen ( 2012 )

[Cite as State v. McQuillen, 2012-Ohio-2449.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 11-COA-036
TYLER J. MCQUILLEN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashaland County
Court of Common Pleas, Case No. 11-CRI-
034
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 4, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS ERIN N. POPLAR
Ashland County Prosecutor 1636 Eagle Way
PAUL T. LANGE Ashland, OH 44805
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, OH 44805
[Cite as State v. McQuillen, 2012-Ohio-2449.]
Gwin, P.J.
{¶1} Appellant, Tyler J. McQuillan, appeals his conviction and sentence from
the Ashland County Court of Common Pleas. Appellant was indicted on Conspiracy to
Commit Aggravated Robbery, a felony of the second degree in violation of R.C.
2923.01(A)(1) and 2911.01(A)(1) and Attempted Burglary, a felony of the third degree,
in violation of R.C. 2923.02(A) and 2911.12(A)(2).
{¶2} Appellant entered a plea of guilty to Conspiracy to Commit Aggravated
Robbery which was found in Count 1 of the indictment. The State dismissed Count 2 of
the indictment. Appellant was sentenced to six years in prison to be followed by three
years of post-release control. The trial court also imposed a fine of $5,000.00. A timely
notice of appeal was filed.
{¶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 two proposed
Assignments of Error:
{¶4} “I. THE COURT ERRED WHEN IT FOUND APPELLANT WAS ABLE TO
PAY FINES AND COURT COSTS.
{¶5} “II. APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
TO OBJECT TO THE IMPOSITION OF A FINE AND COURT COSTS AT
APPELLANT’S SENTENCING HEARING.”
{¶6} 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.
Ashland County, Case No. 11-COA-036 3
Counsel must accompany his request with a brief identifying anything in the record that
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.
{¶7} 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. & II.
{¶8} In his first Assignment of Error, Appellant argues the trial court erred in
imposing fines and court costs. In his second proposed Assignment of Error, Appellant
argues he received ineffective assistance of trial counsel because trial counsel failed to
object to the fine and costs. Because these Assignments of Error are related, we will
address them together.
{¶9} 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
Ashland County, Case No. 11-COA-036 4
unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151,
157, 404 N.E.2d 144.
{¶10} As this Court explained in State v. Perry, 5th Dist. No.2004-CA-00066,
2005-Ohio-85:
{¶11} “ ‘[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.{¶12} 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
Ashland County, Case No. 11-COA-036 5
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 counsel to fail to object to the imposition of the fine and
costs.
{¶13} Appellant’s proposed Assignments of Error are overruled.
{¶14} For these reasons, 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 Ashland County Court of
Common Pleas.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw0522
[Cite as State v. McQuillen, 2012-Ohio-2449.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TYLER J. MCQUILLEN :
:
:
Defendant-Appellant : CASE NO. 11-COA-036
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Ashland County Court of Common Pleas, Ohio, is affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER