[Cite as State v. Lamb, 2011-Ohio-3454.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                         C.A. No.     25478

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ANTHONY D. LAMB                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 10 03 0686(A)

                                 DECISION AND JOURNAL ENTRY

Dated: July 13, 2011



        MOORE, Judge.

        {¶1}    Appellant, Anthony Lamb, appeals from the judgment of the Summit County

Court of Common Pleas. We reverse in part because the court did not make a finding regarding

whether Mr. Lamb is able to pay court-appointed attorney fees.

                                               I.

        {¶2}    On March 25, 2010, Anthony Lamb was indicted on one count of tampering with

evidence in violation with R.C. 2921.12, a felony of the third degree, one count of possession of

cocaine in violation of R.C. 2925.1, a felony of the fourth degree, and one count of improper

registration, a misdemeanor of the fourth degree. The possession of cocaine charge contained a

criminal forfeiture specification. The charges were tried to a jury on June 2, 2010. On June 3,

2010, Mr. Lamb was found not guilty of tampering with evidence and possession of cocaine.

The jury found him guilty of improper registration.
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       {¶3}    On June 3, 2010, a sentencing hearing was held. The trial judge acknowledged

that Mr. Lamb had already been sentenced on a domestic violence case and a three-year prison

sentence had been imposed. Thus, the sentence imposed at this hearing would be served during

the three-year sentence. Mr. Lamb was sentenced to thirty days in jail and fined the maximum

amount of two hundred fifty dollars. Mr. Lamb was also ordered to pay the costs of prosecution

as well as his count-appointed attorney fees. The journal entry imposing the above sentence was

filed on June 9, 2010.

       {¶4}    Mr. Lamb timely filed a notice of appeal and raises one assignment of error for

our review.

                                               II.

                                 ASSIGNMENT OF ERROR

       “THE TRIAL COURT ERRED WHEN IT IMPOSED COURT-APPOINTED
       ATTORNEY’S FEES AS COSTS[.]”

       {¶5}    In his sole assignment of error, Mr. Lamb contends that the trial court erred when

it imposed his court-appointed attorney fees as costs. We agree.

       {¶6}    Under R.C. 2941.51(D), “[t]he [attorney] 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.”

       {¶7}    This Court has previously held that “the court must make a determination that the

defendant is financially capable of paying for his appointed counsel before assessing court-

appointed attorney fees.” State v. Malone, 9th Dist No. 09CA009732, 2010-Ohio-5658, at ¶11,

quoting State v. Warner (Sept. 21, 2001), 9th Dist. No. 96CA006534, at *3.
                                                 3


         {¶8}   In Malone, the trial court failed to make an ability-to-pay finding at either the

sentencing hearing or in the sentencing entries. Id. at ¶12. We concluded that the trial court,

therefore, incorrectly ordered the defendant to pay the court-appointed attorney fees. Id. Here,

the trial court also failed to make such a determination at the sentencing hearing or in the

sentencing entry. At the sentencing hearing, the trial court simply said, “[b]ased on the evidence

I’ve heard [during trial] about this man’s financial situation and some of the possessions he had,

I am going to order him as part of this case to pay the costs of his attorney’s fee as part of the

costs in this case.” The sentencing entry stated that Mr. Lamb’s “appointed attorney fees shall be

taxed as costs in this case.” The court’s recitation does not equate to a “finding on the record

that the defendant had the ability to pay the attorney fees.” Warner, 9th Dist. No. 96CA006534,

at *3.

         {¶9}   The trial court noted that taxing costs in such a manner “is not anything different

from the other judges and what they’re doing in this court” and that it “is now standard practice.”

Court practice notwithstanding, the statute specifically requires that certain procedures be

employed. In the absence of following statutory directives, the court incorrectly ordered Mr.

Lamb to pay the court-appointed attorney fees. It failed to make a finding on the record that he

had the ability to pay such fees. We have independently reviewed the transcript and found no

evidence to support a conclusion regarding Mr. Lamb’s ability to pay.           Mr. Lamb’s sole

assignment of error is sustained.

                                                III.

         {¶10} Mr. Lamb’s assignment of error is sustained. The trial court incorrectly ordered

Mr. Lamb to pay court-appointed attorney fees without making a finding that he is able to pay
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them. The judgment of the Summit County Court of Common Pleas is affirmed in part and

reversed in part.

                                                                         Judgment affirmed in part
                                                                             and reversed in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.


                                                     CARLA MOORE
                                                     FOR THE COURT


DICKINSON, J.
BELFANCE, P. J.
CONCUR


APPEARANCES:

THOMAS D. BOWN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
