State v. VanCamp , 2016 Ohio 2980 ( 2016 )

[Cite as State v. VanCamp, 2016-Ohio-2980.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-15-034
Appellee Trial Court No. 2013CR0557
v.
Jack VanCamp DECISION AND JUDGMENT
Appellant Decided: May 13, 2016
*****
Paul A. Dobson, Wood County Prosecuting Attorney, Gwen
Howe-Gebers, David T. Harold and Martha S. Schultes,
Assistant Prosecuting Attorneys, for appellee.
William F. Hayes, for appellant.
*****
YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Jack VanCamp, appeals the judgment of the Wood County Court
of Common Pleas, denying his motion to waive a mandatory fine of $7,500 arising from
his conviction for illegal assembly or possession of chemicals for the manufacture of
drugs, pursuant to R.C. 2925.041(A)(C)(2). For the following reasons, we affirm.
A. Facts and Procedural Background
{¶ 2} Appellant was charged with one count of illegal assembly or possession of
chemicals for the manufacture of drugs, R.C. 2925.041(A)(C)(2), a felony of the second
degree, and one count of illegal manufacture of drugs, R.C. 2925.04(A), a felony of the
first degree. At his arraignment on December 20, 2013, appellant entered a plea of not
guilty to both counts. The court found appellant to be indigent, and he was appointed
counsel.
{¶ 3} On June 27, 2014, after several pretrial issues and negotiations with the
state, appellant withdrew his former not guilty plea and entered a plea of guilty to one
count of illegal assembly or possession of chemicals for the manufacture of drugs, R.C.
2925.041(A)(C)(2), a felony of the second degree. In exchange, the state agreed to
dismiss the remaining count. Prior to entering his plea, appellant engaged in a colloquy
with the court in which appellant was informed that as a result of the plea, appellant
would be facing a mandatory minimum prison sentence of five years, a mandatory fine of
$7,500, and a mandatory three-year term of postrelease control. Appellant acknowledged
that he understood these consequences and decided to go forward with the plea.
{¶ 4} After the guilty plea was accepted, the court went directly to sentencing.
Both appellant and the state recommended that the defendant be ordered to serve the
minimum, five-year prison term, to which the court complied. Appellant also made a
motion at that time to waive the mandatory fine of $7,500. The court denied the motion
and imposed the mandatory fine. Appellant filed an appeal, challenging the imposition of
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the mandatory fine. However, the appeal was voluntarily dismissed with an agreement
that he would be resentenced as to the issue of the mandatory fine.
{¶ 5} Resentencing took place on March 20, 2015, at which point the court again
denied the motion and ordered the defendant to pay the mandatory fine of $7,500. The
court memorialized that decision in an order dated March 25, 2015. It is from this order
that appellant has filed his timely appeal.
B. Assignment of Error
{¶ 6} On appeal, appellant presents a sole assignment of error for our review:
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT/APPELLANT IN FAILING TO CONSIDER THE
DEFENDANT/APPELLANT’S PRESENT AND FUTURE ABILITY TO
PAY THE $7,500 MANDATORY FINE IMPOSED BY THE COURT.
II. Analysis
{¶ 7} In his assignment of error, appellant argues that the court erred by failing to
apply appropriate standards in considering appellant’s present and future ability to pay
the $7,500 mandatory fine imposed by the court. We disagree.
{¶ 8} For certain crimes, the court must impose a mandatory fine unless the
offender is indigent and is unable to pay. R.C. 2929.18(B)(1). Before imposing a
financial sanction under R.C. 2929.18 or a fine under R.C. 2929.32, the court must
consider the offender’s present and future ability to pay the amount of the sanction or
fine. R.C. 2929.19(B)(6).
3.
{¶ 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. See State
v. Kruse, 6th Dist. No. WD-05-001, 2006-Ohio-3179, at ¶ 49, citing State v. Gipson, 80
Ohio St.3d 626, 634, 687 N.E.2d 750 (1998). The burden is on the offender to
affirmatively demonstrate that he is indigent and unable to pay the mandatory fine.
Gipson at 635. The trial court does not have to make an “affirmative finding that an
offender is able to pay a mandatory fine.” Id. at 634.
{¶ 10} Here, appellant argues that the court did not properly consider appellant’s
present and future ability to pay the mandatory fine, and only speculated that he may be
able to someday pay because of his age. We disagree. There are no express factors that
the court must take into consideration, nor any findings in regards to the offender’s
ability to pay that must be made on the record. State v. Martin, 140 Ohio App.3d 326,
747 N.E.2d 318 (4th Dist.2000). See also State v. Smith, 3d Dist. No. 2-06-37, 2007-
Ohio-3129, ¶ 31, citing State v. Wells, 3d Dist. No. 13-02-17, 2002-Ohio-5318, ¶ 8.
{¶ 11} It is clear from the record that the court took appellant’s education into
consideration. Although appellant now argues that he has minimal education and lacks a
GED, at the July 27 plea and sentencing hearing, appellant told the court that he had three
years of college. The court also considered appellant’s present and future ability to gain
employment. Although appellant claims no apparent employable job skills, his attorney
stated at the March 20 hearing that he was gainfully employed two years prior to his
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sentencing. Appellant also failed to provide any mental or physical impairment that
would prevent him from gaining employment in the future.
{¶ 12} In denying appellant’s motion to waive the mandatory fine, the record
indicates that the court considered several factors: appellant’s education, work
experience, lack of impairments, and the fact that he will be an able bodied man in his
mid-forties when he is released from prison.
{¶ 13} Accordingly, we conclude that the court complied with R.C. 2929.19(B)(6)
by considering appellant’s present and future ability to pay the mandatory fine. Thus,
denying appellant’s motion to waive the mandatory fine was not an abuse of discretion.
Appellant’s assignment of error is not well-taken.
III. Conclusion
{¶ 14} Based on the foregoing, the judgment of the Wood County Court of
Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
5.
State v. VanCamp
C.A. No. WD-15-034
Thomas J. Osowik, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.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.sconet.state.oh.us/rod/newpdf/?source=6.
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