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State v. Owens

Court of Appeals of Ohio, First District, Hamilton

May 11, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
BRANDON OWENS, Defendant-Appellant.

          Criminal Appeal From: Hamilton County TRIAL NO. B-1603208 Court of Common Pleas

         Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and Cause Remanded

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          William F. Oswall, Jr., for Defendant-Appellant.

          OPINION

          Myers, Judge.

         {¶1} Brandon Owens appeals the mandatory fines imposed following his guilty pleas to felony drug-trafficking offenses. Because the trial court erred by requiring Owens to submit five years of tax returns as a prerequisite to finding him indigent, we vacate the imposition of the fines and remand the matter for the court to conduct a limited resentencing in accordance with R.C. 2929.18(B)(1).

         Background Facts

         {¶2} In exchange for the state's dismissal of one count of trafficking in heroin, Owens entered guilty pleas to two counts of trafficking in heroin, one count of aggravated trafficking in a Schedule II controlled substance, and one count of having a weapon while under a disability. The parties agreed that Owens would be sentenced to a total of four and a half years in prison and would forfeit two firearms. In addition to imposing the agreed sentence, the trial court imposed mandatory fines for the drug offenses.

         {¶3} At the sentencing hearing, defense counsel informed the trial court that she had an affidavit of indigency to submit with respect to the fines. The court stated that it would accept counsel's submission of the affidavit, but that it would not make a finding of indigency "without the last five years['] tax returns[.]" Defense counsel requested a hearing on the matter, and the court stated, "Sure. Once you have all the documents, you can file for a hearing." Defense counsel informed the court that Owens had no tax returns to submit. The court responded, "I'm not making a finding of indigency based on that." Counsel did not file the affidavit of indigency.

          Mandatory Fines for Drug-Trafficking Offenses

         {¶4} In his first assignment of error, Owens argues that the trial court erred by imposing the mandatory fines. He contends that the court improperly demanded evidence of his tax returns before it would consider whether he was indigent and unable to pay the mandatory fines.

         {¶5} Under the standard of review set forth in R.C. 2953.08(G)(2), this court may modify or vacate a felony sentence only if we clearly and convincingly find that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law. See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

         {¶6} R.C. 2925.03(D)(1) and 2929.18(B)(1) required the trial court to impose a mandatory fine for each of Owens's drug-trafficking offenses. Owens could have avoided imposition of the mandatory fines only if he had alleged in an affidavit filed with the court prior to sentencing that he was indigent and unable to pay the mandatory fines, and the court determined that he was an indigent person and unable to pay the fines. See R.C. 2929.18(B)(1); State v. Gipson, 80 Ohio St.3d 626, 631, 687 N.E.2d 750 (1998). An affidavit of indigency is "filed" for purposes of R.C. 2929.18(B)(1) if it is delivered to the clerk of court for filing and is time-stamped prior to the filing of the trial court's sentencing entry. Gipson at syllabus.

         {¶7} If a defendant fails to file a timely affidavit of indigency, a trial court cannot avoid imposing a mandatory fine. Id. at 633. Consequently, if an affidavit of indigency is not timely filed, the trial court's failure to impose a mandatory fine renders void the part of the sentence waiving the fine. State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 ...


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