[Cite as State v. Rhodman, 2019-Ohio-5176.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                :    JUDGES:
                                              :    Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                  :    Hon. Craig R. Baldwin, J.
                                              :    Hon. Earle E. Wise, J.
-vs-                                          :
                                              :
CARRIE L. RHODMAN,                            :    Case No. 2019 CA 00029
                                              :
        Defendant - Appellant                 :    OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Licking County
                                                   Court of Common Pleas, Case No.
                                                   2018 CR 00245




JUDGMENT:                                          Vacated



DATE OF JUDGMENT:                                  December 9, 2019



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

WILLIAM C. HAYES                                   PATRICK T. CLARK
Prosecuting Attorney                               Assistant State Public Defender
                                                   250 East Broad Street, Suite 1400
By: CLIFFORD J. MURPHY                             Columbus, Ohio 43215
Assistant Prosecuting Attorney
20 South Second Street, 4th Floor
Newark, Ohio 43055
Licking County, Case No. 2019 CA 00029                                               2


Baldwin, J.

       {¶1}   Carrie L. Rhodman appeals the decision of the Licking County Court of

Common Pleas ordering that she pay court-appointed counsel fees. Appellee is the State

of Ohio.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   The underlying facts leading to the charges in this matter are not relevant

to the disposition of the appeal and are therefore omitted.

       {¶3}   Appellant was convicted of one count of aggravated arson and was

sentenced to a four year prison term and ordered to "*** pay court-appointed counsel

costs and any fees permitted pursuant to R.C. Section 2929.18(A)(4) according to the

Defendant's ability to pay," over Appellant's objection.

       {¶4}   Appellant filed an appeal and submitted two assignments of error:

       {¶5}   “I. THE TRIAL COURT ERRED IN SENTENCING CARRIE RHODMAN

WHEN IT IMPOSED COSTS OF COUNSEL WITHOUT FIRST FINDING THAT SHE HAD

THE ABILITY TO PAY THOSE COSTS.”

       {¶6}   “II. THE TRIAL COURT'S IMPOSITION OF COUNSEL COSTS AGAINST

CARRIE RHODMAN IS CLEARLY AND CONVINCINGLY UNSUPPORTED BY THE

RECORD.”

                                STANDARD OF REVIEW

       {¶7}   An appellate court may only modify or vacate a sentence if it finds by clear

and convincing evidence that the record does not support the sentencing court's decision.

State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231at ¶23. Clear

and convincing evidence is that “‘which will produce in the mind of the trier of facts a firm
Licking County, Case No. 2019 CA 00029                                                  3


belief or conviction as to the facts sought to be established.’ ” State v. Silknitter, 3rd Dist.

Union No. 14–16–07, 2017–Ohio–327, ¶ 7 quoting, Marcum, supra, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Clear

and convincing evidence is that measure or degree of proof which is more than a mere

“preponderance of the evidence,” but does not require the certainty of “beyond a

reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.

                                           ANALYSIS

       {¶8}   In her first assignment of error, Appellant contends the trial court erred in

sentencing when it imposed costs of counsel without first finding that she had the ability

to pay those costs.

       {¶9}   We addressed this issue in State v. Hare, 5th Dist. Delaware No. 19 CAA

01 0001, 2019-Ohio-3047 where that Appellant assigned as error the trial court's order

that Appellant "to pay all of the cost of his court-appointed counsel without determining

his ability to pay, and without advising him on the record he would be required to pay at

sentencing." Id. at ¶ 38. The rational of that decision is applicable to the case before us.

       {¶10} In Hare we found that R.C. 2941.51(D) controlled our analysis, particularly

that portion of the statute that states:

       The fees and expenses approved by the court under this section shall not

       be taxed as part of the costs and shall be paid by the county. However, if

       the person represented has, or reasonably may be expected to have, the

       means to meet some part of the cost of the services rendered to the person,

       the person shall pay the county an amount that the person reasonably can

       be expected to pay.
Licking County, Case No. 2019 CA 00029                                               4


Id. at ¶ 41.

         {¶11} We cited the Second District Court of Appeals Decision in State v. Taylor,

2nd Dist. Montgomery No. 27700, 117 N.E.3d 887, 2018-Ohio-2858 with approval and

held that "to impose court-appointed counsel fees, the trial court must notify the defendant

of such requirement at sentencing, make an explicit finding the defendant has or

reasonably may be expected to have the means to pay, and specify the amount of

appointed-counsel fees the defendant can or reasonably may be expected to pay." Hare,

supra at ¶ 44.

         {¶12} In Hare the trial court stated at the sentencing hearing and in its sentencing

entry:

         Court (sic) has considered your present and future ability to pay financial

         sanctions, does not impose a fine in this case, but you are ordered to pay

         all of the costs of prosecution for which judgement's [sic] granted against

         you and execution is hereby awarded.

         ***

         The Court finds the defendant is able to work and is therefore Ordered to

         pay all prosecution costs, court appointed counsel costs and any fees

         permitted pursuant to R.C. 2929.18(A)(4), for which all sums, judgment is

         hereby rendered. No fine is imposed.

Hare, supra at ¶ 45, 47.

         {¶13} We held that "The trial court did not notify Appellant at sentencing he would

or could be required to pay court-appointed counsel fees, did not make an explicit finding

Appellant has or reasonably may be expected to have the means to pay court-appointed
Licking County, Case No. 2019 CA 00029                                               5


counsel fees pursuant to R.C. 2941.51(D), and did not specify the amount of appointed-

counsel fees Appellant can or reasonably may be expected to pay" Id. at ¶ 48.

       {¶14} In the case before us, the trial court ordered Appellant to "*** pay court-

appointed counsel costs and any fees permitted pursuant to R.C. Section 2929.18(A)(4)

according to the Defendant's ability to pay" but "did not make an explicit finding Appellant

has or reasonably may be expected to have the means to pay court-appointed counsel

fees pursuant to R.C. 2941.51(D), and did not specify the amount of appointed-counsel

fees Appellant can or reasonably may be expected to pay." Consistent with our decision

in Hare, we must find that the trial court erred by ordering Appellant to pay court-appointed

counsel fees without making the required findings.

       {¶15} The first assignment of error is sustained.

       {¶16} In her second assignment of error, Appellant argues that the trial court's

imposition of counsel costs is clearly and convincingly unsupported by the record.

Because we have sustained the Appellant’s first assignment of error and determined that

the trial court erred by imposing costs, we hold that the second assignment of error moot

and that it is unnecessary to render a decision on that assignment. App.R. 12(A)(1)(c).
Licking County, Case No. 2019 CA 00029                                  6


      {¶17} The judgment of the Licking County Common Pleas Court regarding the

order to pay court-appointed counsel fees is vacated.

By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.
