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State v. Carriger

Court of Appeals of Ohio, Twelfth District, Butler

April 10, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
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, for plaintiff-appellee

          Christopher P. Frederick, for defendant-appellant

          OPINION

          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 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 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, ¶ 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 ...


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