Court of Appeals of Ohio, Twelfth District, Butler
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina
N. Alkamhawi, Government Services Center, for
Christopher P. Frederick, for defendant-appellant
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 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
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.
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."
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 determ ination
that a defendant is indigent for purposes of appointed
counsel is separate and distinct from a determ ination 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,
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 ...