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State v. Taylor

Court of Appeals of Ohio, Second District, Montgomery

July 20, 2018

STATE OF OHIO Plaintiff-Appellee
v.
ROBERT TAYLOR Defendant-Appellant

          Criminal Appeal from Common Pleas Trial Court Case No. 2016-CR-1970

          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.

          DAVID R. MILES, Attorney for Defendant-Appellant.

          OPINION

          FROELICH, J.

         {¶ 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 counsel fees.

         I. Procedural History

         {¶ 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.[1]

         {¶ 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 financial obligation.

         {¶ 6} Taylor appeals from his conviction, raising two assignments of error related to the monetary portions of his sentence.

         II. 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, ΒΆ 27. "The record should, however, contain 'evidence that the trial court considered the offender's present and future ability to pay before ...


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