Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County TRIAL NO. B-1603208
Court of Common Pleas
Appealed From Is: Affirmed in Part, Sentences Vacated in
Part, and Cause Remanded
T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for
William F. Oswall, Jr., for Defendant-Appellant.
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).
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.
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
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.
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
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
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 ...