[Cite as State v. Smith , 2018-Ohio-4421.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106679

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. O’SHANE C. SMITH

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-614758-A

BEFORE: Laster Mays, J., McCormack, P.J., and Keough, J.

RELEASED AND JOURNALIZED: November 1, 2018 -i-ATTORNEYS FOR APPELLANT

Mark Stanton Cuyahoga County Public Defender By: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Patrick J. Lavelle Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

ANITA LASTER MAYS, J.: {¶1} Defendant-appellant O’Shane C. Smith (“Smith”) appeals the imposition of a mandatory fine in the amount of $15,000 assessed to him by the trial c ourt, and asks this court to vacate the imposed fine. {¶2} Smith pleaded guilty to one count of traffi cking, a second-degree felony, in violation of R.C. 2925.03(A)(2); one count of possessing criminal tools, a fi fth-degree felony, in violation of R.C. 2923.24(A); and one count of falsification, a first-degree misdemeanor, in violation of R.C. 2923.13(A)(3). {¶3} Before sentencing, Smith filed an affidav it of indigency. In response to Smith’saffidavit, the trial court stated, I do have your affidavit of indigenc y and I acknowledge that; however, your presentence investigation re port, based on your disclosu re to the probation officer, indicates that you stated that your overall financial cond ition is good. That seems to be in conflict with your affida vit. And based on the information I have, I think you are obligated to pay the costs and expenses of the case. (Tr. 32.) Smith was subsequently sentenced to four years in prison, and the court imposed a mandatory fine of $15,000. After a review of the record, we affirm the trial court’s

determination. {¶4} Smith assigned one error for our review, arguing that, I. The trial court abused its discretion in imposing a mandatory fine when the evidence demonstrated a present inability to pay the fine. Law and Analysis {¶5} Accordingly, [a] trial court has discre tion when imposing financia l sanctions on a defendant, even an indigent one. An appellate court will review the trial court’s decision for an abuse of that discretion. State v. Schneider , 8th Dist. Cuyahoga No. 96953, 2012-Ohio-1740, ¶ 9, citing State v. Weyand , 7th Dist. Columbiana No. 07-CO-40, 2008-Ohio-6360, ¶ 7. An abuse of discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial court. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

State v. Ledbetter , 8th Dist. Cuyahoga No. 104077, 2017-Ohio-89, ¶ 15. {¶6} Additionally, R.C. 2925.03(D)(1) provides for the impositi on of a mandatory fine for a drug trafficking conviction. “If the violation of division (A) of this section is a felony of * * * second * * * degree, the c ourt shall impose upon the offender the mandatory fine specified for the offe nse under division (B)(1) of section 2929.18 of the Revised Code unless, as specified in that division, the court determines that the offender is indigent.”

Id. at ¶ 16. {¶7} Furthermore,A trial court is required to impose all mandatory fines specified for a particular crime unless the court determines th at the defendant is indigent. State v. Roberts , 2016-Ohio-7400, 72 N.E.3d 1126, ¶ 30 (8th Dist.), citing State v. Miller , 8th Dist. Cuyahoga No. 86505, 2006-Ohio-4752, ¶ 8. For the court to find a defendant indigent, an affidavit of indigence must be filed in accordance with R.C. 2929.18(B)(1), which provides: If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pa y the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division the c ourt shall not impose the mandatory fine imposed upon the offender. (Emphasis added.)

State v. Davis , 8th Dist. Cuyahoga No. 104574, 2018-Ohio-1147, ¶ 34. {¶8} It is undisputed that Smith filed a timely affidavit of indigency and therefore the request was properly before the court. “[A]n offe nder who files an affidav it alleging that he or she is indigent and is unable to pay a mandatory fine is not automatically entitled to a waiver of

that fine.” State v. Gipson , 80 Ohio St.3d 626, 687 N.E.2d 750 ( 1998). Nevertheless, Smith states that he is presently indigent and being sent enced to four years in prison is further proof that he does not have the present ability to pay a mandatory fine. Smith argues that the trial court

abused its discretion. {¶9} Smith relies on State v. Emrich , 2d Dist. Clark No. 94-CA-0005, 1995 Ohio App. LEXIS 897 (Mar. 10, 1995), to show that the trial court abused its discretion when it imposed a mandatory fine. Emrich filed an affidavit of indigency before sentencing. In his affidavit, Emrich, the defendant, stated that his debts exceeded his assets, that he had rental properties but each had mortgages, and after paying his reta ined counsel he was unable to pay a fine. Additionally, while he was in jail he was not able to pay his bills. The trial court nevertheless imposed a mandatory fine. Furthermore, the tria l court held payment of the mandatory fine in abeyance stating, “I don’t know what the future might bring.” Id . at 4. On appeal, the courtfound that although the trial court did not expressly find Emrich indi gent, the record reflects that

the trial court had reach ed that conclusion. Id . at 5. Additionally, the court found that a separate determina tion of indigency must be made without considerin g that a defendant had

obtained counsel. Id . at 6. “A court must also determine a defendant’s ability to pay considering his financial condition at the time of sentencing.” Id . at 7. The appellate court

determined that the trial cour t abused its discretion by impos ing a mandatory fine upon Emrich where it considered his future ability to pay. Finally, the appellate court stated that Emrich’s

incarceration alone amounted to his in ability to pay a mandatory fine. Id . at 8-9. {¶10} Smith also relies on State v. Williams , 8th Dist. Cuyahoga No. 92419,

2009-Ohio-5964. In Williams , an affidavit of indigency was f iled prior to sentencing requesting waiver of the mandatory fine. At sentencing, the trial court imposed a five-year prison sentence and a mandatory fine but ordere d Williams to start paying afte r his release from prison. Upon appeal, Williams argued that the record di d not support his ability to pay the fine. Id . at ¶ 3.

Williams stressed that in his a ffidavit of indigency that he had no automobile, cash on hand, income, or real estate. Willia ms also had unpaid medical b ills and supported four children, their mothers, and his parents. Id . at ¶ 9. The court found “the mere possibility that an offender may be able to pay the fine in the futu re is not a proper basis on which to find that a defendant is not indigent.” Id . at ¶ 12.{¶11} We find that Smith’s reliance on Emrich and Williams is misplaced. The record reveals that the trial court reviewed the evidence before making a determination as to Smith’s ability to pay. While reviewing the presentence report, the trial court stated, “You got a reasonably nice car; in fact, a very nice car. And you’ve got extra money in savings and you’re able to pay your obligations when they come due and you considered y our financial situation good.” (Tr. 28.) There was also a brief di scussion regarding Smith’s co-ownership of a restaurant while he lived in Jamaica. Unlike the defendants in Emrich and Williams, Smith

stated that his financial status was good. Smith’s assets were gr eater than his expenses, he was able to pay his obligations, and the trial court did not rely on his future ability to pay. The court

stated: I do have your affidavit of indigenc y and I acknowledge that; however, your presentence investigation re port, based on your disclosu re to the probation officer, indicates that you stated that your overall financial cond ition is good. That seems to be in conflict with your affida vit. And based on the information I have, I think you are obligated to pay the costs and expenses of this case. (Tr. 32.) We find that the tria l court’s determin ation was not in error where the record supports a finding that Smith could presently pay. See, e.g., State v. Cruz , 8th Dist. Cuyahoga No. 106098, 2018-Ohio-2052, ¶ 29-30 (when there is no reco rd of indigency, the trial court’s

decision to not waive the mandato ry fine is not in error). {¶12} Therefore, we overrule Smith’s sole assignment of error and determine that the

trial court did not abuse its discretion. {¶13} Judgment affirmed. It is ordered that the appellee rec over from appellant co sts herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleascourt to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

_________________________________________ ANITA LASTER MAYS, JUDGE TIM MCCORMACK, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR