State v. Carriger

[Cite as State v. Carriger, 2017-Ohio-1330.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2016-06-108
Plaintiff-Appellee, :
OPINION
: 4/10/2017
- vs -
:
GREGORY L. CARRIGER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2015-09-1454
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for defendant-
appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Gregory Carriger, appeals the imposition of a mandatory
fine by the Butler County Court of Common Pleas.
{¶ 2} On April 20, 2016, appellant pled guilty to one count of aggravated possession
of drugs, a felony of the third degree, in violation of R.C. 2925.11. During the plea hearing,
the trial court informed appellant that the offense carried with it "a maximum fine of $10,000
Butler CA2016-06-108
of which $5,000 is mandatory." On May 26, 2016, the trial court sentenced appellant to 24
months in prison and ordered him to pay a mandatory fine of $5,000.
{¶ 3} Appellant now appeals, raising one assignment of error:
{¶ 4} THE TRIAL COURT ERRED BY ORDERING MR. CARRIGER TO PAY $5,000
IN FINES WITHOUT REASONABLY CONSIDERING HIS INDIGENT STATUS AND
FUTURE ABILITY TO PAY AS REQUIRED BY R.C. 2929.19(B)(5).
{¶ 5} Appellant argues the trial court erred in imposing the $5,000 mandatory fine
without considering his present and future ability to pay, as required by R.C. 2929.19(B)(5),
and without considering the fact he is indigent as evidenced by the affidavit of indigency he
filed on January 27, 2016.
{¶ 6} Pursuant to R.C. 2925.11(E)(1)(a) and 2929.18(B)(1), a trial court is obligated
to impose mandatory fines when the offender commits certain drug-related felonies. As
relevant here, this includes a third-degree felony offense of possession of drugs in violation
of R.C. 2925.11(A). However, "[i]f 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 *
* *, the court shall not impose the mandatory fine upon the offender." R.C. 2929.18(B)(1).
{¶ 7} Thus, to avoid imposition of a mandatory fine at the time of sentencing, two
things must occur: (1) the offender must submit an affidavit of indigency to the trial court prior
to sentencing, and (2) the trial court must make a determination that the offender is in fact
indigent. State v. Johnson, 12th Dist. Butler No. CA2011-11-212, 2014-Ohio-3776, ¶ 10.
{¶ 8} Appellant correctly asserts that he filed an affidavit of indigency on January 27,
2016, prior to sentencing. However, this affidavit was filed for purposes of receiving
appointed trial counsel, and not for purposes of avoiding imposition of the mandatory fine.
The determination that a defendant is indigent for purposes of appointed counsel is separate
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and distinct from a determination of indigency for purposes of paying a mandatory fine. State
v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 35. 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. 2929.18 because an
offender's ability to pay a fine over a period of time is not equivalent to the ability to pay legal
counsel a retainer fee at the onset of criminal proceedings. State v. Kelly, 145 Ohio App.3d
277, 283-284 (12th Dist.2001). Thus, appellant cannot rely on his January 27, 2016 affidavit
to demonstrate indigency for the purpose of avoiding imposition of the mandatory fine. State
v. Banks, 6th Dist. Lucas Nos. WD-06-094 and WD-06-095, 2007-Ohio-5311, ¶ 15.
{¶ 9} The fact that an affidavit of indigency was not properly filed prior to sentencing
pursuant to R.C. 2929.18(B)(1) "is, standing alone, a sufficient reason to find that the trial
court committed no error by imposing the statutory fine." State v. Gipson, 80 Ohio St.3d 626,
633 (1998). Here, because appellant did not file an affidavit alleging he was indigent and
unable to pay the mandatory fine with the trial court prior to sentencing, the trial court did not
err when it imposed the mandatory fine pursuant to R.C. 2929.18(B)(1). State v. Parsley,
10th Dist. Franklin No. 09AP-612, 2010-Ohio-1689, ¶ 54; Gipson at 633. The imposition of
the fine was mandated by law. Bolden at ¶ 37.
{¶ 10} Appellant further argues the trial court erred in imposing the $5,000 mandatory
fine because the court did not consider his present and future ability to pay the fine as
required by R.C. 2929.19(B)(5).
{¶ 11} R.C. 2929.19(B)(5) provides that before imposing a financial sanction, including
a mandatory fine under R.C. 2929.18(B)(1), "the court shall consider the offender's present
and future ability to pay the amount of the sanction or fine." There are no express factors
that must be considered or specific findings that must be made regarding the offender's
ability to pay. State v. Saracco-Rios, 12th Dist. Madison Nos. CA2016-02-011 and CA2016-
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03-014, 2016-Ohio-7192, ¶ 10. Compliance with R.C. 2929.19(B)(5) can be shown through
the trial court's use of a presentence investigation report ("PSI"), which often provides
financial and personal information of the offender, in order to aid the trial court in making its
determination. Johnson, 2014-Ohio-3776 at ¶ 12.
{¶ 12} In the case at bar, the trial court expressly noted in its sentencing entry that it
had considered appellant's present and future ability to pay fines, and imposed the $5,000
mandatory fine. The trial court ordered a PSI, which detailed appellant's age, education,
physical and mental health, and employment history. The trial court noted during the
sentencing hearing and in its sentencing entry that it had reviewed the PSI.
{¶ 13} The PSI indicates that appellant was 37 years old at the time of his sentencing,
so that he will be 39 years old upon his release from prison with many years of employability
remaining. The PSI also indicates that appellant reported his back "goes out all the time"
and that as a result of going to the hospital whenever his back goes out, he "currently owes
'massive medical bills.'" Nonetheless, the PSI indicates that appellant was employed at the
time of the offense, "working under the table painting," and that he has worked in
construction in the past. Although appellant reported his current financial situation is bad, he
further reported he was "able to provide for himself and pay his bills, when he is not
incarcerated."
{¶ 14} While it is true that appellant is not currently employed and will not be during his
24-month imprisonment, R.C. 2929.19(B)(5) specifically requires a trial court to consider the
offender's future ability to pay as well as his present ability. We do not disagree with
appellant that he does not have the present ability to pay, but we cannot say the trial court
erred in determining appellant has the future ability to pay.
{¶ 15} In light of appellant's failure to file an affidavit of indigency pursuant to R.C.
2929.18(B)(1) and the fact the record is clear the trial court considered appellant's present
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and future ability to pay fines, we find the trial court did not err in imposing the $5,000
mandatory fine.
{¶ 16} Appellant's assignment of error is overruled.
{¶ 17} Judgment affirmed.
HENDRICKSON, P.J. and PIPER, J., concur.
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