DocketNumber: No. 91390.
Citation Numbers: 909 N.E.2d 148, 181 Ohio App. 3d 378, 2009 Ohio 1086
Judges: MARY J. BOYLE, Judge.
Filed Date: 3/12/2009
Status: Precedential
Modified Date: 1/13/2023
{¶ 1} This case came to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 11.1.
{¶ 2} This case involves a defendant's failure to pay a fine ordered by the municipal housing court in connection with the defendant's no-contest plea on a series of building and housing code violations. Defendant-appellant, Thomas Leneghan, appeals the trial court's judgment entry ordering him to report to jail for failure to pay the underlying fine in his criminal housing court case. Although we find that the trial court has jurisdiction to enforce its sentence, we find some merit to the appeal and remand for further proceedings because the trial court failed to hold a hearing prior to ordering Leneghan incarcerated.
{¶ 4} On July 9, 1998, the court accepted partial payment of $100 and continued the matter. Leneghan requested numerous continuances and ultimately failed to appear for an April 1999 pretrial. After being brought in on a capias and after additional requests for continuances, the trial court ultimately issued an order on October 20, 1999, requiring Leneghan to enter into a payment plan but granting him time to pay until April 1, 2008. Leneghan signed a "time to pay card," acknowledging that his failure to comply with the terms of the payment agreement would result in "contempt of court and/or civil proceedings."
{¶ 5} Leneghan subsequently made two payments, but then failed to make any further payments, resulting in a balance of $9,400 (plus court costs). In July 2001, the court notified Leneghan that it had erroneously granted him too much time to pay and set the matter for a hearing on August 6, 2001. It is unclear from the record whether a hearing was held. On August 21, Leneghan moved to mitigate the fine, which the trial court denied, and, on December 6, 2001, the court ordered Leneghan to continue on the payment plan. No further payments appear on the record between December 6, 2001, and January 30, 2008.
{¶ 6} In February 2008, the trial court ordered Leneghan to appear before the court to be taken to the Warrensville House of Corrections ("jail") until he paid his outstanding criminal fine. On March 13, 2008, Leneghan moved to vacate the *Page 381 court's order, which the court denied. From that decision, Leneghan appeals, raising the following assignments of error:
{¶ 7} "[I.] The trial court erred in denying defendant's motion to vacate filed on March 13, 2008 from the judgment entry issued on February 26, 2008 and any judgment entry of similar order.
{¶ 8} "[II.] The trial court erred in issuing an order jailing the defendant when it no longer has authority to do so."
{¶ 9} We will address these assignments of error together because they both attack the trial court's underlying judgment entry ordering Leneghan to jail until he pays his outstanding criminal fine.
{¶ 11} First, we find that Zucal does not govern this case because the facts are clearly distinguishable. In Zucal, the defendant, through no fault of her own, did not complete her mandatory jail sentence because each time she reported to the jail, over a period of six years, she was turned away due to jail overcrowding.Zucal involves a trial court's delay in executing a sentence. Reversing the lower court's refusal to vacate the defendant's sentence after more than five years had passed from the date of sentencing, 1 the Ohio Supreme Court held that "[i]n convictions involving misdemeanor offenses, a delay in execution of sentence resulting from jail overcrowding that exceeds five years from the date that sentence is imposed is unlawful." Id. at paragraph one of the syllabus. The court further recognized that "[n]o modification of sentence may occur after five years from the date of sentencing." Id. at paragraph four of the syllabus.
{¶ 12} Conversely, this case does not involve a trial court's failure to execute a sentence within five years. Here, the trial court executed on the fine imposed on October 20, 1999. There is no evidence in the record that the court or clerk's office refused payments attempted by Leneghan after this period. Instead, the *Page 382 record reflects that Leneghan made no attempt to satisfy the fine and simply ignored the trial court's sentencing order.Zucal does not stand for the proposition that a defendant may thwart his sentence by avoiding it for five years. Indeed, the defendant in Zucal did not fail to appear at the jail; rather, she was repeatedly turned away due to jail overcrowding.
{¶ 13} Further, in regard to fines imposed for criminal offenses under former R.C.
{¶ 14} Likewise, although former R.C.
{¶ 15} Finally, we find no merit to Leneghan's claim that the trial court lacks authority to impose a jail sentence for his nonpayment because the trial court failed to initially hold a hearing under R.C.
{¶ 16} "Although the statute states that the hearing must be held `at the time of sentencing,' Ohio's courts have read R.C.
{¶ 17} But we do recognize, as the city concedes, that the trial court cannot order incarceration for nonpayment of a fine without first holding a hearing and determining a defendant's ability to pay, consistent with the parameters outlined in R.C.
{¶ 18} "(B) At the hearing, the offender has the right to be represented by counsel and to testify and present evidence as to the offender's ability to pay the fine. If a court or magistrate determines after considering the evidence presented by an offender, that the offender is able to pay a fine, the determination shall be supported by findings of fact set forth in a judgment entry that indicate the offender's income, assets, and debts, as presented by the offender, and the offender's ability to pay.
{¶ 19} "(C) If the court or magistrate has found the offender able to pay a fine at a hearing conducted in compliance with divisions (A) and (B) of this section, and the offender fails to pay the fine, a warrant may be issued for the arrest of the offender. Any offender held in custody pursuant to such an arrest shall be entitled to a hearing on the first regularly scheduled court day following the date of arrest in order to inform the court or magistrate of any change of circumstances that has occurred since the time of sentencing and that affects the offender's ability to pay the fine. The right to the hearing on any change of circumstances may be waived by the offender."
{¶ 20} In this case, the trial court's orders demonstrate that the trial court placed the burden on Leneghan to establish that he wanted a hearing pursuant to R.C.
{¶ 21} Accordingly, we find that the trial court has jurisdiction to enforce the underlying fine and order Leneghan to the jail or workhouse if it determines that he has the ability to pay such a fine. The court, however, must first conduct a hearing pursuant to R.C.
Judgment reversed and cause remanded. *Page 384
SWEENEY, J., concurs.
DYKE, P.J., concurs in judgment only.