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State v. Weyand

December 4, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CHARLES WEYAND, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common Pleas of Columbiana County, Ohio Case No. 2006CR267.

The opinion of the court was delivered by: Donofrio, J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Mary DeGenaro.

{¶1} Defendant-appellant, Charles Weyand (Weyand), appeals his conviction in the Columbiana County Common Pleas Court for operating a vehicle under the influence of alcohol or drugs. The central issue is whether the trial court erred in assessing a fine and court costs without considering his present and future ability to pay.

{¶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. 4511.19(A)(1)(h). The offense was a fourth-degree felony because Weyand had previously been convicted of five or more violations of R.C. 4511.19, or another equivalent offense, within twenty years of this offense.

{¶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. 2929.19(B)(6)."

{¶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 discretion connotes more than an error of law or judgment; it implies the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.

{¶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. 2929.19(B)(6) requires that a trial court "consider the offender's present and future ability to pay the amount of the sanction or fine" before imposing a monetary sanction. Keylor at ¶11. R.C. 2929.18(E) further provides that the trial court "may hold a hearing if necessary to determine whether the offender is able to pay the sanction or is likely in the future to be able to pay it." Id. Thus, a hearing only needs to be held at the trial court's discretion. Id., citing State v. Higgenbotham (Mar. 21, 2000), 7th Dist. No. 97BA70, at 7. "In the event appellant is later brought before the court for failing to pay the fine, then he would be entitled to a hearing as to the ability to pay such." Id.

{¶10} R.C. 2929.19(B)(6) does not contain express factors that must be considered, or specific findings regarding the offender's ability to pay that must be made. State v. Dandridge, 12th Dist. No. CA2003-12-330, 2005-Ohio-1077, at ¶6; State v. Martin, 140 Ohio App.3d 326, 338, 2000-Ohio-1942, 747 N.E.2d 318. "All that is required under R.C. 2929.19(B)(6) is that the trial court 'consider the offender's present or future ability to pay.'" Dandridge at ¶6. Compliance with R.C. 2929.19(B)(6) can be shown when a trial court considers a PSI that details personal and financial ...


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