[Cite as State v. Holland, 2018-Ohio-4975.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              JACKSON COUNTY

STATE OF OHIO,                  :
                                :   Case No. 17CA8
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
TIANA HOLLAND,                  :
                                :
     Defendant-Appellant.       :   Released: 12/06/18
_____________________________________________________________
                          APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for Appellant.

Justin Lovett, Jackson County Prosecuting Attorney, and Nick Wille,
Assistant Jackson County Prosecuting Attorney, Jackson, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal of a judgment filed in the Jackson County

Court of Common Pleas imposing, among other things, a mandatory fine in

the amount of $7,500.00 in connection with Appellant’s convictions for one

count of trafficking in cocaine, a second-degree felony in violation of R.C.

2925.03(A)(2), and one count of trafficking in heroin, a third-degree felony

of R.C. 2925.03(A)(2). On appeal, Appellant contends that the trial court

erred to her prejudice and abused its discretion when it imposed a mandatory

fine pursuant to R.C. 2929.18(B)(1) despite the filing of an affidavit of
Jackson App. No. 17CA8                                                            2

indigency prior to the sentencing hearing, and the failure of the trial court to

make any type of finding regarding her future ability to pay. Because the

record clearly indicates the trial court expressly stated it believed Appellant

had the future ability to pay, despite her present indigency, we find no error

by the trial court. Thus, her sole assignment of error is overruled.

Accordingly, the decision of the trial court is affirmed.

                                    FACTS

      {¶2} A five-count felony indictment was filed against Appellant,

Tiana Holland, on October 10, 2014, alleging various trafficking and

possession of heroin, cocaine and marihuana offenses. A review of the

record indicates the trial court found Appellant to be indigent at the

arraignment and she was provided with court-appointed counsel. Appellant

thereafter entered into negotiations with the State which resulted in a plea

agreement whereby Appellant pleaded guilty to count one, as amended to

second-degree felony trafficking in cocaine, in violation of R.C.

2925.03(A)(2), and count two, as amended to third-degree felony trafficking

in heroin, in violation of R.C. 2925.03(A)(2). Counts three, four and five

were dismissed.

      {¶3} A sentencing hearing was held on October 18, 2017. An

affidavit of indigency was filed on October 23, 2017, and a sentencing order
Jackson App. No. 17CA8                                                           3

was filed the same day. The trial court ultimately sentenced Appellant to a

combination of prison, community control and post-release control

sanctions. Pertinent to this appeal, the trial court also imposed a mandatory

fine in the amount of $7,500.00, despite the fact that Appellant had filed an

affidavit of indigency. It is from this judgment that Appellant now brings

her timely appeal, setting forth a single assignment of error for our review.

                         ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
      DEFENDANT-APPELLANT AND ABUSED THE TRIAL
      COURT'S DISCRETION WHEN THE TRIAL COURT IMPOSED A
      MANDOTORY [SIC] FINE PURSUANT TO RC 2929.18(B)(1)
      DESPITE THE FILING OF AN AFFIDAVIT OF INDIGENCY
      FILED BY THE DEFENDANT-APPELLANT PRIOR TO THE
      SENTENCING HEARING AND THE FAILURE OF THE TRIAL
      COURT TO MAKE ANY TYPE OF FINDING REGARDING THE
      DEFENDANT-APPELLANT'S FUTURE ABILITY TO PAY.”

                        ASSIGNMENT OF ERROR I

      {¶4} In her sole assignment of error, Appellant contends that the trial

court erred and abused its discretion when it imposed a mandatory fine in the

amount of $7,500.00 despite the fact that Appellant had filed an affidavit of

indigency prior to the sentencing hearing. Appellant also argues the trial

court failed to make any type of finding regarding her future ability to pay.

The State contends, however, that a trial court's imposition of a mandatory

fine after making a finding that a defendant has the future ability to pay the
Jackson App. No. 17CA8                                                          4

fine is not contrary to law. For the following reasons, we agree with the

State.

         {¶5} When reviewing felony sentences, appellate courts must apply

the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23. Under R.C.

2953.08(G)(2), “[t]he appellate court's standard for review is not whether the

sentencing court abused its discretion.” Instead, R.C. 2953.08(G)(2)

provides that an appellate court may increase, reduce, modify, or vacate and

remand a challenged felony sentence if the court clearly and convincingly

finds either:

         “(a) That the record does not support the sentencing court's
         findings under division (B) or (D) of section 2929.13, division
         (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
         2929.20 of the Revised Code, whichever, if any, is relevant;

         (b) That the sentence is otherwise contrary to law.”

Relevant the present appeal, we note that “ ‘[p]ursuant to R.C.

2929.18(B)(1), a sentencing court is required to impose a mandatory fine for

a first, second, or third degree felony violation of any provision of Chapter

2925, 3719, or 4729 of the Revised Code.’ ” State v. Fisher, 4th Dist.

Jackson No. 17CA5, 2018-Ohio-2718, ¶ 28; quoting State v. Robinson, 4th

Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶ 26. As set forth above,

Appellant pleaded guilty to trafficking in cocaine, a second-degree felony in
Jackson App. No. 17CA8                                                          5

violation of R.C. 2925.03(A)(2), and trafficking in heroin, a third-degree

felony in violation of R.C. 2925.03(A)(2), both of which subjected

Appellant to a mandatory fine per R.C. 2929.18(B)(1).

      {¶6} This Court recently noted in State v. Fisher, supra, at ¶ 29 as

follows:

      “ ‘[T]he imposition of a mandatory fine under R.C.
      2929.18(B)(1) is required unless (1) the offender's affidavit is
      filed prior to sentencing and (2) the trial court finds that the
      offender is an indigent person and is unable to pay the
      mandatory fines.’ (Emphasis sic.) Robinson at ¶ 28, citing State
      v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1988);
      R.C. 2929.18(B)(1) (‘If an offender alleges in an affidavit filed
      with the court prior to sentencing that the offender is indigent
      and unable to pay 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 court shall
      not impose the mandatory fine upon the offender’); R.C.
      2925.11(E)(1)(a) (‘If the violation is a felony of the first,
      second, or third degree, the court shall impose upon the
      offender the mandatory fine specified for the offense 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’).”

      {¶7} Here, Appellant contends that she filed her affidavit of indigency

prior to the sentencing hearing. However, the record indicates Appellant's

sentencing hearing was held on October 18, 2017, and her affidavit of

indigency was not filed until October 23, 2017, the same day the order on

sentencing was filed. Regardless, the Supreme Court of Ohio “has held that

an indigency affidavit filed pursuant to R.C. 2929.18(B)(1) is timely, if the
Jackson App. No. 17CA8                                                                                   6

affidavit is indorsed, i.e., time-stamped by the clerk of court prior to the

filing of the court's sentencing entry.” State v. Robinson, supra, at ¶ 29;

citing State v. Gipson at syllabus. Because Appellant's affidavit was filed

the same day as the sentencing entry, and because the time-stamps contain

dates only, and not times, we are unable to discern whether Appellant's

affidavit was filed prior to the sentencing entry. However, because the State

does not argue it was untimely filed, we will presume the regularity of the

record and trust that the affidavit of indigency was timely filed.1

        {¶8} Assuming Appellant's affidavit of indigency was timely filed and

properly before the trial court, as noted in Fisher, supra, at ¶ 36, “a finding

of indigence for purposes of appointed counsel does not shield a defendant

from paying a fine because the ability to pay a fine over time is not

equivalent to the ability to pay legal counsel based on the defendant's current

financial situation.” Citing State v. Lykins, 2017-Ohio-9390, 102 N.E.3d

503, ¶ 17 (4th Dist.); State v. Plemons, 2nd Dist. Montgomery Nos. 26434,

26435, 26436, and 26437, 2015-Ohio-2879, ¶ 9. Moreover, “ ‘[s]imply

because a trial court finds a defendant indigent for purposes of appointed

counsel does not mean that the defendant lacks the future ability to pay’ for



1
 We also note that the trial court made an earlier finding of indigency at Appellant's arraignment hearing,
which triggered appointment of counsel. However, we were unable to locate an affidavit of indigency filed
at that time.
Jackson App. No. 17CA8                                                               7

purposes of a fine.” Fisher at ¶ 36; quoting Lykins at ¶ 17; citing State v.

Noble, 4th Dist. Athens No. 15CA20, 2017-Ohio-1440, ¶ 58.

       {¶9} Here, Appellant contends that the trial court was required to hold

a hearing to determine Appellant's future ability to pay the mandatory fine

and cites State v. Robinson, supra, in support of her contention. However,

this Court did not state a hearing was required to be held, but rather that a

trial court must issue a “ruling” on the issue. State v. Robinson at ¶ 30. The

record before us indicates that the trial court engaged in an exchange with

defense counsel regarding Appellant’s present indigency versus her future

ability to pay a mandatory fine, and the trial court expressly stated that it

believed Appellant “would have the future ability to earn income and pay

that fine.” When Appellant's counsel again stated that he had filed an

affidavit of indigency, the trial court stated “. . . yes . . . and I think that

certainly deals with the current ability but . . . [] . . . future ability I'm not

aware of anything that would prevent your client from being gainfully

employed and paying that [.]” Thus, contrary to Appellant's arguments, the

trial court clearly considered Appellant's future ability to pay and made a

ruling on the issue.

       {¶10} Much like the trial court, there is nothing in the record before us

to indicate anything preventing Appellant's future ability to pay a mandatory
Jackson App. No. 17CA8                                                                                    8

fine. The record indicates Appellant was working towards her GED prior to

her arrest and was employed at that time. Although there was nothing in the

record before us indicating Appellant's age, we take judicial notice of the

information contained on the Ohio Department of Corrections webpage

which states Appellant was born in 1982, thus making her approximately

thirty-five years old at the time of sentencing.2 Appellant would only be

forty years old upon release from prison and would have many years to

become gainfully employed in order to pay her fine.

         {¶11} Therefore, Appellant has not met her burden of establishing that

the trial court's imposition of a mandatory fine was clearly and convincingly

contrary to law. Accordingly, her sole assignment of error is overruled and

the decision of the trial court is affirmed.

                                                                  JUDGMENT AFFIRMED.




2
 State v. Filous, 2017-Ohio-203, 95 N.E.3d 573, FN 1 (4th Dist.); citing State ex rel. Everhart v. McIntosh,
115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 8, 10 (court can take judicial notice of judicial
opinions and public records accessible from the internet).
Jackson App. No. 17CA8                                                          9

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Jackson County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
