Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Trial Court Case No.
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Assistant
Prosecuting Attorney, Montgomery County Prosecutor's
Office, Appellate Division, Montgomery County Courts
Building, Attorney for Plaintiff-Appellee.
R. MILES, Attorney for Defendant-Appellant.
1} Robert Taylor pled guilty in the Montgomery
County Court of Common Pleas to kidnapping and gross sexual
imposition of a person less than thirteen years of age. The
trial court sentenced him to five years of community control
and ordered him to pay a supervision fee of $250,
court-appointed counsel fees of $130, and court costs.
2} Taylor appeals from his conviction, claiming that
the trial court erred in ordering him to pay a
court-appointed counsel fee. Taylor also claims that his
trial counsel was ineffective by failing to request a waiver
of the court-appointed counsel fee, the supervision fee, and
court costs. For the following reasons, the judgment of the
trial court will be affirmed in part and reversed in part,
and the matter will be remanded for the filing of an amended
judgment entry that omits the imposition of court-appointed
3} On October 19, 2016, Taylor was indicted for one
count of rape of a person less than thirteen years of age in
violation of R.C. 2907.02(A)(1)(b), a felony of the first
degree, and one count of disseminating material that is
harmful to juveniles in violation of R.C. 2907.31 (A)(1), a
misdemeanor of the first degree. Taylor pled not guilty to
the indicted charges.
4} On the scheduled trial date, Taylor accepted a
plea bargain offered by the State, whereby Taylor agreed to
plead guilty by bill of information to one count of
kidnapping in violation of R.C. 2905.01(A)(2), a felony of
the first degree, and one count of gross sexual imposition of
a person less than thirteen years of age in violation of R.C.
2907.05(A)(4), a felony of the third degree. In exchange for
Taylor's guilty plea, the State agreed to dismiss the
original charges in the indictment. As articulated at the
plea hearing, the parties also agreed that Taylor would serve
a full five years of community control sanctions with a
no-break status, be designated a Tier II sex offender, and
have no contact with the victim.
5} After accepting Taylor's guilty plea, the
trial court ordered a presentence investigation report
("PSI") and scheduled the matter for sentencing. At
the sentencing hearing, and in conformity with the plea
agreement, the trial court sentenced Taylor to five years of
community control. The trial court also designated Taylor a
Tier II sex offender and ordered him to have no contact with
the victim. In addition, the trial court ordered Taylor to
pay a $130 court-appointed counsel fee, a $250 supervision
fee, and court costs, which were later calculated to be $1,
138. The court-appointed counsel fee was not imposed as a
financial sanction or as a court cost, but as a separate
6} Taylor appeals from his conviction, raising two
assignments of error related to the monetary portions of his
Ability to Pay Court-Appointed Counsel Fees
7} In his first assignment of error, Taylor claims
that the trial court "erred in ordering [him] to pay
court-appointed counsel fees." Taylor contends that the
$130 court-appointed counsel fee imposed by the trial court
should be vacated, because the trial court failed to notify
him of the fee at the sentencing hearing and failed to
consider his ability to pay the fee before it was imposed.
8} At the outset, a trial court's order to pay
court-appointed counsel fees is distinguishable from both
court costs and financial sanctions, which are also
distinguishable from each other.
9} Pursuant to R.C. 2947.23, a trial court is
required to impose the costs of prosecution against all
convicted defendants and to render a judgment against the
defendant for such costs. State v. Shirk, 2d Dist.
Clark No. 2015-CA-49, 2016-Ohio-7692, ¶ 8. This is true
regardless of whether the defendant is deemed indigent.
Id. The court has jurisdiction at sentencing or
anytime thereafter to waive, suspend, or modify the payment
of the costs. R.C. 2947.23(C). Once costs are ordered and a
judgment for them imposed, a defendant has the burden of
objecting and seeking modification of the payment. In other
words, costs are paid by the defendant unless evidence shows
and the court finds that he or she is unable to pay.
10} Under R.C. 2929.18, a court may order a felony
offender to pay, as part of the sentence, a financial
sanction, such as restitution or a fine. Before imposing
financial sanctions under R.C. 2929.18, the trial court is
required to consider the defendant's present and future
ability to pay. R.C. 2929.19(B)(5). R.C. 2929.19(B)(5)
"establishes no particular factors for the court to take
into consideration, nor is a hearing necessary before making
this determination. * * * Moreover, although it is
preferable, a court imposing financial sanctions need not
expressly state on the record that it considered an
offender's ability to pay." State v.
Philbeck, 2d Dist. Montgomery Nos. 26466 and 26467,
2015-Ohio-3375, ¶ 27. "The record should, however,
contain 'evidence that the trial court considered the
offender's present and future ability to pay before