DocketNumber: No. 07-CO-40.
Citation Numbers: 2008 Ohio 6360
Judges: DONOFRIO, J.
Filed Date: 12/4/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On July 27, 2006, a Columbiana County grand jury indicted Weyand for operating a vehicle under the influence of alcohol or drugs in violation of R.C.
{¶ 3} Weyand entered into a felony plea agreement in which the state agreed to recommend a one-year term of incarceration, a $2,500.00 fine, a twenty-year license suspension, criminal forfeiture of the vehicle driven at the time of his offense, and counseling and alcohol treatment.
{¶ 4} At the June 5, 2007 plea hearing, Weyand pleaded guilty as charged to the indictment after the trial court advised him of his rights both orally and in writing. (Plea Tr. 9-18.) On August 6, 2007, the trial court sentenced Weyand to a twenty-nine month term of imprisonment, including the 120-day mandatory term of incarceration, a $1,000.00 fine to be paid within one year from the time of his prison release, a permanent revocation of his operator's license, vehicle forfeiture, and counseling and alcohol treatment.
{¶ 5} Weyand's sole assignment of error states:
{¶ 6} "THE TRIAL COURT ERRED BY ORDERING MR. WEYAND TO PAY A $1,000.00 FINE AND COURT COSTS WITHOUT CONSIDERING HIS PRESENT AND FUTURE ABILITY TO PAY, AS REQUIRED BY R.C.
{¶ 7} A trial court has broad discretion when imposing a financial sanction upon an offender and a reviewing court should not interfere with its decision unless the trial court abused that discretion by failing to consider the statutory sentencing factors. State v.Keylor, 7th Dist. No. 02 MO 12, 2003-Ohio-3491, at ¶ 9. An abuse of *Page 2
discretion connotes more than an error of law or judgment; it implies the trial court acted unreasonably, arbitrarily, or unconscionably.State v. Adams (1980),
{¶ 8} Weyand argues that the trial court was under a mandatory obligation to determine his ability to pay financial sanctions, and that nothing in the record indicates that the trial court considered his present and future ability to pay the imposed fine. Weyand also argues that the court's indigency finding, his reliance on court appointed counsel, and his testimony at the sentencing hearing to receiving social security benefits as income are proof that he does not and will not have the financial means to pay the $1,000.00 fine and court costs. Weyand alleges "[t]he court made no additional inquiries or statements on the matter" during the sentencing hearing.
{¶ 9} R.C.
{¶ 10} R.C.
{¶ 11} Importantly, Weyand effectively waived any issue concerning the amount of the fine. First, as part of the felony plea agreement, Weyand agreed to pay a $2,500.00 fine, $1,500.00 more than the $1,000.00 fine the trial court ordered at sentencing. Second, Weyand failed to object to the amount of the fine during the sentencing hearing. "Where the offender does not object at the sentencing hearing to the amount of the fine and does not request an opportunity to demonstrate to the court that he does not have the resources to pay the fine, he waives any objection to the fine on appeal." Keylor, quoting State v. Frazier (Oct. 9, 1997), 8th Dist. No. 71675-78. Thus, Weyand waived any argument on appeal concerning his ability to pay these fines. See Keylor.
{¶ 12} Even though Weyand fails to discuss in his brief why he did not raise any objections to the trial court's imposition of a fine and costs at the sentencing, he asserts that this court has previously improperly determined that a defendant is responsible for "raising ability to pay at sentencing" in State v. Potts, 7th Dist. No. 07HA4,
{¶ 13} Even assuming Weyand had not waived the issue of his ability to pay the fines imposed by the trial court, the arguments he raises on appeal are *Page 4 nevertheless not meritorious. In this case, the trial court did not explicitly state that it considered Weyand's present and future ability to pay the financial sanctions it imposed. However, in its sentencing judgment entry, the trial court stated that it had considered, among other things, the PSI. The PSI contains information regarding Weyand's education, income, criminal history, and health. The record also reflects that the court questioned Weyand about his age, employment status, and whether his social security benefits are for a disability, which they are not. (Sent. Tr. 26.) The trial court also advised Weyand that "it is allowed to consider a number of different things, including the information contained in the pre-sentence investigation." (Sent. Tr. 30.)
{¶ 14} Given the information in the PSI, and the trial court's references to its consideration of the PSI, as well as the questions the trial court posed to Weyand during the sentencing hearing, the record provides sufficient evidence indicating that the trial court considered Weyand's present and future ability to pay financial sanctions before imposing a $1,000.00 fine. See, also, State v. Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-1062 at ¶ 37-38; State v. Martin,
{¶ 15} Additionally, the trial court advised Weyand that the maximum fine for his offense of operating a vehicle under the influence of alcohol or drugs, a fourth-degree felony, was $10,000.00, and the minimum fine was $800.00. In spite of the trial court's ability to order a significantly larger fine, the trial court ordered Weyand to pay only $200.00 more than the minimum, and allowed for up to one year post release to complete payment.
{¶ 16} Weyand also argues the trial court should not have ordered him to pay fines because he was found to be indigent. However, a determination that a criminal defendant is indigent for purposes of receiving appointed counsel does not prohibit the trial court from imposing a financial sanction pursuant to R.C.
{¶ 17} Weyand also challenges the trial court's imposition of costs of prosecution without determining his ability to pay these costs. Weyand erroneously cites R.C.
{¶ 18} Based on the foregoing, Weyand's sole assignment of error is without merit.
{¶ 19} The judgment of the trial court is hereby affirmed.
*Page 1Waite, J., concurs. DeGenaro, P.J., concurs.