State v. Zsigray

[Cite as State v. Zsigray, 2021-Ohio-1401.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109466
v. :
WILLIAM S. ZSIGRAY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED IN PART; REMANDED
RELEASED AND JOURNALIZED: April 22, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-638567-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ayoub Dakdouk, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellant.
SEAN C. GALLAGHER, P.J.:
Appellant William S. Zsigray appeals the trial court’s imposition of a
mandatory fine. Upon review, we vacate the part of Zsigray’s sentence ordering him
to pay the mandatory fine.
Background
On April 15, 2019, Zsigray was indicted for trafficking in violation of
R.C. 2925.03(A)(2), a felony of the first degree, with a schoolyard specification and
a forfeiture specification; and drug possession in violation of R.C. 2925.11(A), a
felony of the second degree, with two forfeiture specifications. Zsigray was declared
indigent and was appointed counsel. He initially entered a plea of not guilty to the
charges.
Following discovery, Zsigray entered a plea of guilty to an amended
Count 2 for drug possession in violation of R.C. 2925.11(A), a felony of the third
degree, with the forfeiture specifications; and Count 1 for trafficking was dismissed.
At the change-of-plea hearing, it was acknowledged that the amended charge carried
a presumption in favor of prison and that there was a mandatory fine. The trial court
engaged in a Crim.R. 11 colloquy with Zsigray and found that the plea was made
knowingly, intelligently, and voluntarily. The trial court ordered a presentence
investigation report (“PSI report”) and set a date for sentencing.
At the sentencing hearing, the trial court indicated it had reviewed the
entire case file, the PSI report, and R.C. 2911.11, 2911.12, and 2911.13. The state
deferred to the court for sentencing.
Defense counsel discussed mitigating factors, including that Zsigray,
who at the time of sentencing was almost 60 years old and had no prior felonies,
broke his back in 2001, became addicted to pain killers, and eventually graduated to
heroin. Defense counsel indicated that Zsigray had been actively participating in
intensive outpatient programming since April 2019 and had tested negative on all
urine screens. Defense counsel further indicated that he filed a poverty affidavit for
Zsigray before the sentencing hearing, and he requested that Zsigray be placed on
community control. Zsigray addressed the court and indicated he was “off the drugs
now,” acknowledged his mistakes, and stated he “did it for medical reason[s] to help
me through my pain while I was working and so forth.”
Despite the presumption of a prison term, the trial court sentenced
Zsigray to 36 months of community control with conditions and advised Zsigray that
a violation would result in 36 months in prison. The trial court also imposed a
$5,000 mandatory fine and ordered Zsigray to pay costs and fees. The court
indicated that “[i]f the defendant fails to pay the costs and fees as ordered or
according to an approved schedule[,] then the defendant is ordered to perform up
to 40 additional hours of court community work service per month * * *.”
Zsigray did not object to the imposition of the mandatory fine during
the sentencing hearing. However, the record reflects that Zsigray’s poverty affidavit
was filed the day of the sentencing hearing. Further, the PSI report, which the trial
court indicated it considered, reflects that Zsigray, who is now 61, has only a tenth-
grade education, had a nearly lifelong battle with drugs and alcohol, became
addicted to pain killers after suffering a broken back in 2001, and developed a heroin
addiction. Further, Zsigray was last employed in 2018 and he reported no income
other than $197 in food stamps. Although Zsigray owns a home valued at $50,000
and owes property taxes approximated at $2,000, the PSI report indicates that
Zsigray struggles to pay his bills and is dependent on his girlfriend for financial
support. Notwithstanding these circumstances, the trial court imposed the
mandatory fine.
In the sentencing journal entry, the trial court included the 36 months
of community control with the conditions that were imposed, stated a violation of
the terms and conditions may result in more restrictive sanctions or a prison term
of three years as approved by law, ordered Zsigray to pay the mandatory fine in the
sum of $5,000, and ordered Zsigray to pay costs.
Zsigray timely filed this appeal.
Law and Analysis
Zsigray raises two assignments of error for our review. Under his first
assignment of error, Zsigray claims the trial court erred by imposing a fine because
he filed a poverty affidavit and, according to Zsigray, the record demonstrates he is
indigent and has no present or future ability to pay the fine.
R.C. 2929.19(B)(5) provides as follows:
Before imposing a financial sanction under section 2929.18 of the
Revised Code or a fine under section 2929.32 of the Revised Code, the
court shall consider the offender’s present and future ability to pay the
amount of the sanction or fine.
R.C. 2929.18(B)(1) provides as follows:
For a first, second, or third degree felony violation of any provision of
Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing
court shall impose upon the offender a mandatory fine of at least one-
half of, but not more than, the maximum statutory fine amount
authorized for the level of the offense pursuant to division (A)(3) of this
section. If an offender alleges in an affidavit filed with the court prior
to sentencing that the offender is indigent and unable to pay the
mandatory fine and if the court determines the offender is an indigent
person and is unable to pay the mandatory fine described in this
division, the court shall not impose the mandatory fine upon the
offender.
A mandatory fine under R.C. 2929.18(B)(1) must be imposed unless
(1) the offender alleges in a timely filed affidavit that the offender is indigent and
unable to pay the mandatory fine, and (2) the court determines the offender is
indigent and unable to pay the mandatory fine. State v. Gipson, 80 Ohio St.3d 626,
631, 687 N.E.2d 750 (1998); see also State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-
5479, 985 N.E.2d 432, ¶ 13, limited by State v. Harper, 160 Ohio St.3d 480, 2020-
Ohio-2913, 159 N.E.3d 248, ¶ 42. The filing of the requisite affidavit does not
automatically entitle a defendant to a waiver of a mandatory fine. Gipson at 634.
Nor does indigency alone. See id. Also, “[a] determination that a criminal defendant
is indigent for purposes of receiving appointed counsel is separate and distinct from
a determination of being indigent for purposes of paying a mandatory fine.” State
v. Cruz, 8th Dist. Cuyahoga No. 106098, 2018-Ohio-2052, ¶ 28, citing State v. Knox,
115 Ohio App.3d 313, 317, 685 N.E.2d 304 (8th Dist.1996).
“When considering whether the offender is indigent for purposes of
waiving the mandatory fine, the court must consider the offender’s present and
future ability to pay the fine.” State v. Gray, 8th Dist. Cuyahoga No. 104140, 2016-
Ohio-8320, ¶ 8, citing State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-Ohio-
3002, ¶ 12. “[T]he burden is upon the offender to affirmatively demonstrate that he
or she is indigent and is unable to pay the mandatory fine.” (Emphasis sic.) Gipson
at 635. “[T]he second prerequisite affords the court discretion to review the
offender’s circumstances and determine whether the offender is unable to pay.”
Gray at ¶ 10, citing State v. Campbell, 12th Dist. Warren No. CA2012-08-070, 2013-
Ohio-3088, ¶ 10.
Additionally, a trial court is not required to make any specific findings
regarding an offender’s present and future ability to pay. Cruz at ¶ 27, citing State
v. Loving, 180 Ohio App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 9 (10th Dist.).
Consideration of the offender’s ability to pay the amount of the fine can be inferred
from the trial court’s use of a presentence investigation (“PSI”) report, which often
includes a defendant’s financial and personal information. State v. Poff, 5th Dist.
Morgan No. 20AP0005, 2021-Ohio-384, ¶ 43, citing State v. Johnson, 12th Dist.
Butler No. CA2011-11-212, 2014-Ohio-3776, ¶ 12; State v. McNear, 1st Dist.
Hamilton No. C-190643, 2020-Ohio-4686, ¶ 17.
The record herein reflects, and Zsigray concedes, that the trial court
had the PSI report at the time of sentencing along with the properly filed poverty
affidavit. He argues that the trial court was aware of his indigence and the
circumstances that make his indigence unlikely to change. He claims that the trial
court abused its discretion by imposing the mandatory fine in this case.
In Gipson, the Supreme Court of Ohio determined that a trial court
did not err in requiring a defendant to pay a mandatory fine when the record
demonstrated that the defendant appeared to be actively seeking employment at the
time of sentencing, had retained private counsel, and was an able-bodied young man
with employment potential. Gipson, 80 Ohio St.3d at 634, 687 N.E.2d 750. The
Supreme Court recognized that under these circumstances, although Gipson was
indigent and unemployed at the time of the sentencing hearing, “the trial court could
have reasonably determined * * * he was not ‘unable to pay’ the mandatory fine over
the course of his probation.” Id. The fact that Gipson was placed on probation was
considered along with his youth, physical stature, and ability to work in determining
Gipson’s ability to pay the mandatory fine over a four-year period of probation. Id.
at 636. The Supreme Court distinguished cases where an indigent defendant had
been sentenced to a term of incarceration and would be unable to pay the mandatory
fine for some period of time. Id. at 635-636, citing State v. Pendleton, 104 Ohio
App.3d 785, 787-788, 663 N.E.2d 395 (1st Dist.1995); State v. Lefever, 91 Ohio
App.3d 301, 309, 632 N.E.2d 589 (2d Dist.1993); and State v. Gutierrez, 95 Ohio
App.3d 414, 418, 642 N.E.2d 674 (9th Dist.1994). However, as the Supreme Court
stated in Gipson, the General Assembly did not intend to preclude a trial court from
imposing fines “on able-bodied defendants who are fully capable of work but who
happen to be indigent and unemployed at the moment of sentencing.” Id. at 636.
For purposes of R.C. 2925.29.18(B)(1), “whether an offender is indigent and is
unable to pay the mandatory fine can (and should) encompass future ability to pay.”
(Emphasis sic.) Id.
In this case, there is no dispute that Zsigray filed an affidavit prior to
sentencing that alleged he is indigent and unable to pay the mandatory fine. Zsigray
claims the trial court erred by imposing the mandatory fine because at the time of
sentencing he had no ability to pay a $5,000 fine and he has almost no chance of
being able to pay the fine in the future. He argues that the presentence investigation
report demonstrates that he is a 61-year-old recovering drug addict who broke his
back in 2001, he has only a tenth-grade education, he is not employed or collecting
unemployment, and he now has a felony record.
In support of his argument, Zsigray cites to State v. Davis, 8th Dist.
Cuyahoga No. 99976, 2014-Ohio-2052, wherein a panel of this court determined
that a trial court abused its discretion in imposing a mandatory fine under
circumstances where the defendant, although only 23 years old, was unemployed,
had no alternative source of income, owned no real property, did not own a vehicle,
and had impediments to obtaining gainful employment once released from prison,
including a felony conviction and a previous record dating back to when he was a
juvenile, a ninth-grade education, and a suspended driver’s license. Id. at ¶ 10.
Under the particular circumstances of that case, it was determined that the mere
possibility that the offender might be able to pay the fine in the future was not a
proper basis for finding the defendant was not indigent. Id. at ¶ 11. The court also
noted concern that if a fine were imposed, the defendant might return to a life of
crime in order to pay the mandatory fine. Id., citing State v. Williams, 8th Dist.
Cuyahoga No. 92419, 2009-Ohio-5964, ¶ 12. In Williams, a panel of this court found
it was error to impose a fine upon an indigent defendant who was sentenced to
prison, had no income, no cash on hand, no real estate, and no automobile, and had
financial support responsibilities. Id. at ¶ 9-13. Although Davis and Williams
involved a defendant who was sentenced to incarceration, as opposed to a period of
community control, the cases present other circumstances that are similar to this
matter.
Our review of the record demonstrates that the trial court was made
aware that an affidavit of indigency had been filed, and the court stated it had
considered the PSI report. We recognize that despite the presumption for a prison
term, the trial court sentenced Zsigray to community control and imposed the
mandatory fine. However, the record reflects that Zsigray affirmatively
demonstrated that he is indigent and is unable to pay the mandatory fine. Unlike
the able-bodied young man actively seeking employment in Gipson, Zsigray is much
older, suffered a broken back, is unemployed, has no income, struggles to pay his
bills, has a tenth-grade education, and has a felony conviction and a lengthy history
with drugs and alcohol. Similar to the circumstances in Davis and Williams,
imposition of the mandatory fine may compel Zsigray to return to a life of crime in
order to pay the mandatory fine.
Under the particular circumstances of this case, we find the trial court
abused its discretion when it imposed the mandatory fine. Accordingly, we sustain
the first assignment of error and vacate the mandatory fine.
Under the second assignment of error, Zsigray claims he received
ineffective assistance of counsel and asserts his trial counsel did not properly request
the court to waive the fine.
“[A]ppellate courts generally review ineffective assistance of counsel
claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel
claim, the defendant must show that his trial counsel’s performance was deficient
and that the deficient performance prejudiced his defense so as to deprive the
defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); State v. Grate, Slip Opinion No. 2020-Ohio-5584,
¶ 49. “[A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance * * *.” Strickland at 689.
To establish prejudice, the defendant must demonstrate there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
Zsigray argues that although his trial counsel filed the poverty
affidavit prior to sentencing, he stopped short of asking the trial court to recognize
Zsigray’s indigence and to waive the fine. He further argues that trial counsel was
silent after the fine was imposed. He states that the failure to request a waiver more
likely than not resulted in the court imposing the fine.
The Supreme Court of Ohio has found that under R.C. 2929.18(B)(1)
“the affidavit must be formally filed with the court prior to the filing of a journal
entry reflecting the trial court’s sentencing decision.” Gipson, 80 Ohio St.3d at 632,
1998-Ohio-659, 687 N.E.2d 750. Here, trial counsel filed the affidavit on the day of
the sentencing hearing and specifically notified the court of its filing. There was no
deficiency in counsel’s performance. See State v. Shepard, 8th Dist. Cuyahoga No.
95433, 2011-Ohio-2525, ¶ 15 (finding no ineffective assistance of counsel where trial
counsel complied with the mandate of R.C. 2929.18(B)(1) and filed the affidavit of
indigency prior to the filing of the sentencing journal entry). Additionally, the record
reflects that the trial court was aware the affidavit had been filed and indicated it
had reviewed the PSI report. Accordingly, we overrule the second assignment of
error.
As a final matter, the state asserts that the trial court’s sentencing
journal entry does not reflect the trial court’s decision requiring appellant to pay the
mandatory fine by cash or by performing community service. As correctly observed
by Zsigray, at the sentencing hearing the trial court only mentioned “costs and fees”
in detailing how community work service would be applied to unpaid balances. The
language used by the trial court was consistent with R.C. 2947.23(A)(1)(a)(i), which
permits a court to order a defendant to perform community service when a
defendant fails to pay a judgment for the costs of prosecution. Nothing was stated
on the record or in the sentencing journal entry about applying community work
service to the mandatory fine. In any event, we are vacating the imposition of the
mandatory fine.
In conclusion, the part of Zsigray’s sentence ordering him to pay the
mandatory fine of $5,000 is vacated. The case is remanded to the trial court to
modify the sentencing entry.
Judgment vacated in part; case remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______________________________
SEAN C. GALLAGHER, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR