State v. Campbell

[Cite as State v. Campbell, 2013-Ohio-3088.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellant, : CASE NO. CA2012-08-070
: OPINION
- vs - 7/15/2013
:
BRETT CAMPBELL, :
Defendant-Appellee. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 12CR28043
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellant
Patrick D. Walsh, P.O. Box 543, Springboro, Ohio 45066, for defendant-appellee
RINGLAND, J.
{¶ 1} Appellant, the state of Ohio, appeals the sentence of appellee, Brett Campbell,
from the Warren County Court of Common Pleas.
{¶ 2} Campbell was indicted by a Warren County grand jury on felony drug charges
on February 13, 2012. Subsequently, Campbell pled guilty to trafficking in cocaine as a third-
degree felony. On July 11, 2012, the trial court held a sentencing hearing, wherein Campbell
Warren CA2012-08-070
was sentenced to two years in prison. However, the trial court waived the mandatory fine,
finding that Campbell was indigent.1
{¶ 3} The state appeals from that sentence, raising a single assignment of error for
our review:
{¶ 4} THE WARREN COUNTY COURT OF COMMON PLEAS ABUSED ITS
DISCRETION WHEN IT WAIVED THE MANDATORY FINE BECAUSE IT DID NOT MAKE
THE NECESSARY FINDING REGARDING INDIGENCY AND BECAUSE ITS FINDING
REGARDING THE ABILITY TO PAY WAS NOT SUPPORTED BY THE EVIDENCE.
{¶ 5} "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.
Weyand, 7th Dist. No. 07-CO-40, 2008-Ohio-6360, ¶ 7, citing State v. Keylor, 7th Dist. No. 02
Mo. 12, 2003-Ohio-3491, ¶ 9. An abuse of discretion connotes more than an error of law or
judgment; rather, it implies that the court has acted either unreasonably, unconscionably, or
arbitrarily. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 19.
{¶ 6} R.C. 2925.11 directs a trial court to impose all mandatory fines specified for a
particular crime, unless the court determines that the defendant is indigent. R.C.
2929.18(B)(1) states:
{¶ 7} "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."
1. We note that it confusion in the present case results from the fact that the "Agreed Entry Judgment Entry of
Sentence," was not signed by all parties. Had all the parties signed the agreed entry, the present issue could
have been avoided.
-2-
Warren CA2012-08-070
{¶ 8} Before imposing a financial sanction under R.C. 2929.18, the court must
consider the offender's present and future ability to pay the amount of the sanction or fine.
See R.C. 2929.19(B)(6). As to the trial court's findings, "there 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, 2000-Ohio-1942 (4th
Dist.). Rather, the record must contain some evidence which establishes that the trial court
complied with its duty to make the statutory determination regarding the offender's ability to
pay. See, e.g., State v. Adkins, 144 Ohio App.3d 633, 644 (12th Dist.2001).
{¶ 9} In the present case, the record contains evidence that would allow a court to
find that Campbell is indigent. First, after pleading guilty, Campbell filed an affidavit of
indigency for the purpose of waiving his fine which indicated that his current income and
liquid assets were $0. Second, the transcript of the sentencing hearing makes clear that the
trial court considered numerous relevant factors in making the decision as to whether
Campbell would have the ability to pay now or in the future, finding:
On the issue of the fine, it's not just a question of whether or not
Mr. Campbell - - it's not just a question of whether or not he's
indigent now, it's a question of whether or not he's going to be
able to work and earn money in the future. You've got diabetes,
high blood pressure, nerve damage, a torn rotator cuff. Currently
prescribed Metformin, Glipizide, Celexa, Presidone, Lisinopril,
Clonidine, Hydroxyzine, and Ranitidine. You've got diabetes,
depression, high blood pressure, anxiety, acid reflux.
Based on his - - taking everything into consideration, the fact that
he'll be getting out with a felony conviction, needing to focus on
drug treatment and all these health issues, I'm going to waive the
mandatory fine. Finding that he's not eligible to or able really to
take part in the reasonable future.
{¶ 10} Given Campbell's medical history, his current financial situation, his filing of an
affidavit of indigency and the trial court's consideration of his ability to find work after his
release from prison, we find that there was ample evidence upon which the trial court could
-3-
Warren CA2012-08-070
make a determination that Campbell was indigent. Accordingly, we cannot find that trial
court, under the wide latitude it is granted in determining a party's indigency, abused its
discretion in finding Campbell indigent and waiving the mandatory fine.
{¶ 11} In light of the foregoing, having found that the trial court did not abuse its
discretion in finding that appellee was indigent and waiving the mandatory fine, the state's
sole assignment of error is overruled.
{¶ 12} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
-4-