[Cite as State v. Elrod, 2016-Ohio-987.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-15-49

        v.

KIMBERLY C. ELROD,                                       OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR20140464

                       Judgment Reversed and Cause Remanded

                             Date of Decision: March 14, 2016




APPEARANCES:

        Valerie Kunze for Appellant

        Jana E. Emerick for Appellee
Case No. 1-15-49


PRESTON, J.

       {¶1} Defendant-appellant, Kimberly C. Elrod (“Elrod”), appeals the May

18, 2015 judgment entry of sentence of the Allen County Court of Common Pleas.

For the reasons that follow, we reverse.

       {¶2} On October 17, 2014, the Allen County Grand Jury indicted Elrod on

Count One of illegal manufacture of drugs in violation of R.C. 2925.04(A),

(C)(3)(b), a first-degree felony, Count Two of illegal assembly or possession of

chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), (C), a

second-degree felony, and Counts Three, Four, Five, and Six of endangering

children in violation of R.C. 2919.22(B)(6), (E)(3), third-degree felonies. (Doc.

No. 1). On November 3, 2014, Elrod entered pleas of not guilty to the counts of

the indictment. (See id.); (Doc. No. 80).

       {¶3} The case proceeded to a jury trial on March 31 and April 1 and 2,

2015. (See Doc. No. 80). The jury found Elrod guilty of all of the counts of the

indictment. (Trial Tr., Vol. III, at 511-515); (Doc. Nos. 74-80). The trial court

sentenced Elrod on May 18, 2015. (Sentencing Tr. at 1). As part of the sentence

it imposed on Elrod, the trial court ordered that Elrod pay mandatory fines of

$10,000 on Count One and $7,500 on Count Two. (Id. at 15). The trial court filed

its judgment entry of sentence on May 18, 2015. (Doc. No. 66).




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       {¶4} On July 17, 2015, after this court granted her motion for leave to file a

delayed appeal, Elrod filed a notice of appeal. (Doc. No. 100). She raises two

assignments of error for our review. Because it is dispositive, we address only

Elrod’s first assignment of error.

                            Assignment of Error No. I

       Kimberly Elrod received ineffective assistance of counsel when
       appointed counsel failed to advocate against mandatory fines
       despite her demonstrated inability to pay. Sixth and Fourteenth
       Amendments to the United States Constitution; Sections 1 and
       10, Article I of the Ohio Constitution; Strickland v. Washington,
       466 U.S. 668, 104 S. Ct. 2052 (1984). (Sentencing T.pp. 1-18;
       May 18, 2015 Judgment Entry of Sentencing.)

       {¶5} In her first assignment of error, Elrod argues that she received

ineffective assistance of counsel because her trial counsel “failed to raise the issue

of ability to pay” the mandatory fines and did not file an affidavit of indigency as

to her ability to pay mandatory fines under R.C. 2929.18(B)(1). (Appellant’s

Reply Brief at 2). The State, on the other hand, argues that Elrod did not receive

ineffective assistance of counsel “because the record lacks detailed evidence

establishing defendant’s indigent status at the time of sentencing and, more

importantly, lacks evidence of defendant’s future ability to make payments on a

mandatory fine over time.” (Appellee’s Brief at 6).

       {¶6} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the


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circumstances; and (2) the deficient performance prejudiced the defendant. State

v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052 (1984).        In the event of deficient or unreasonable

performance, prejudice results when “‘there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.’”   See State v. Bradley, 42 Ohio St.3d 136, 142 (1989), quoting

Strickland at 694.     “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Id., quoting Strickland at 694.

       {¶7} R.C. 2929.18(B) governs the imposition of mandatory fines. See State

v. Webb, 5th Dist. Richland No. 14 CA 85, 2015-Ohio-3318, ¶ 17.                    “R.C.

2929.18(B)(1) establishes a procedure for avoiding imposition of mandatory fines

applicable to certain felony drug offenses.” State v. Hale, 5th Dist. Perry No. 14-

CA-00010, 2014-Ohio-4981, ¶ 12. That statute provides:

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

       of Chapter 2925., 3719., or 4729. of the Revised Code, the

       sentencing court shall impose upon the offender a mandatory fine of

       at least one-half of, but not more than, the maximum statutory fine

       amount authorized for the level of the offense pursuant to division

       (A)(3) of this section. If an offender alleges in an affidavit filed with

       the court prior to sentencing that the offender is indigent and unable


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       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. 2929.18(B)(1).

       {¶8} The failure to file an affidavit of indigency prior to sentencing may

constitute ineffective assistance of counsel if the record shows a reasonable

probability that the trial court would have found the defendant indigent and

relieved the defendant of the obligation to pay the fine had the affidavit been filed.

State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, ¶ 92, citing State

v. Howard, 2d Dist. Montgomery No. 21678, 2007-Ohio-3582, ¶ 15, citing State v.

Sheffield, 2d Dist. Montgomery No. 20029, 2004-Ohio-3099, ¶ 5. In addressing

this issue, courts consider “factors such as age, criminal record, employment

history, ability to post bond, ability to retain counsel for trial, and the untimely

affidavit of indigency.” Howard at ¶ 16, citing Sheffield.

       {¶9} Under the particular circumstances of this case, we conclude that the

record shows a reasonable probability that the trial court would have found Elrod

indigent and relieved her of the obligation to pay the fine had her trial counsel

filed a R.C. 2929.18(B)(1) affidavit. To begin, weighing against a reasonable-

probability showing, the record reflects that Elrod was able to post a surety bond


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to secure her release from jail pending trial. (Doc. No. 10). See Harrison at ¶ 93;

Sheffield at ¶ 15; State v. Dixon, 2d Dist. Montgomery No. 23671, 2010-Ohio-

4919, ¶ 15. However, several other factors present in the record—specifically, in

the presentence investigation report (“PSI”)—weigh in favor of concluding that a

reasonable probability exists that the trial court would have found Elrod indigent

had an affidavit been filed. See State v. Parsley, 10th Dist. Franklin No. 09AP-

612, 2010-Ohio-1689, ¶ 66-67 (examining the presentence investigation report to

determine whether trial counsel was ineffective for failing to file an affidavit of

indigency), citing State v. McDowell, 11th Dist. Portage No. 2001-P-0149, 2003-

Ohio-5352, ¶ 76.

      {¶10} According to the PSI, Elrod is 43 years old and in poor physical

health. (PSI). The PSI reflects a long list of physical and mental impairments that

would limit Elrod’s employment opportunities. See Hale, 2014-Ohio-4981, at ¶

18; State v. Ward, 187 Ohio App.3d 384, 2010-Ohio-1794, ¶ 35 (2d Dist.); State v.

Hodge, 2d Dist. Montgomery No. 23964, 2011-Ohio-633, ¶ 69. At the time the

PSI was completed, Elrod was taking nine medications. (PSI). See Hale at ¶ 18.

The PSI also provides that Elrod “is currently unemployed” and “last worked at

Subway in Georgia for 2 months in 2007.” (PSI). See Ward at ¶ 35; Hodge at ¶

69; Parsley at ¶ 66. Elrod’s source of income is disability benefits from Social

Security. (PSI). See Hale at ¶ 18; Hodge at ¶ 69. She also receives food stamps


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and benefits from Social Security for her children. (PSI). See Hodge at ¶ 69.

Elrod “has no savings and is in debt for past cash loans.” (PSI). See Ward at ¶ 35.

Elrod graduated from a vocational school in 1993 and “attended 1 year of general

college classes at Ohio State University in Lima, Ohio in 1994.” (PSI). See

Parsley at ¶ 66. Elrod has prior criminal convictions. (PSI). See Hodge at ¶ 69.

       {¶11} We conclude that, under the particular circumstances of this case

reflected in the record, a reasonable probability exists that the trial court would

have found Elrod indigent and relieved her of the obligation to pay the mandatory

fines had Elrod’s trial counsel filed an affidavit of indigency under R.C.

2929.18(B)(1). Accordingly, we hold that Elrod received ineffective assistance of

counsel to the extent her trial counsel failed to file an affidavit of indigency under

R.C. 2929.18(B)(1). See Hale at ¶ 20; Ward at ¶ 35; Hodge at ¶ 71; Parsley at ¶

67. We hasten to point out that, while in this particular case reversal is warranted,

reversal is not warranted in every case where a defendant’s trial counsel does not

file an affidavit of indigency under R.C. 2929.18(B)(1). See, e.g., Harrison, 2015-

Ohio-1419, at ¶ 93-95.

       {¶12} Elrod’s first assignment of error is sustained.         We affirm the

convictions herein; however, we reverse the judgment of the trial court and

remand solely for the trial court to resentence Elrod and to provide her an




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opportunity to file an affidavit of indigency prior to sentencing. See Parsley,

2010-Ohio-1689, at ¶ 69.

                           Assignment of Error No. II

       The trial court erred by ordering Ms. Elrod to pay $17,500 in
       fines without reasonably considering her present and future
       ability to pay as required by R.C. 2929.19(B)(5). (Sentencing
       T.pp. 1-18; May 18, 2015 Judgment Entry of Sentencing.)

       {¶13} In her second assignment of error, Elrod argues that the trial court

erred by imposing the mandatory fines on Elrod without considering, under R.C.

2929.19(B)(5), her present and future ability to pay the fines. In light of our

decision to sustain Elrod’s first assignment of error, her second assignment of

error is rendered moot, and we decline to address it. App.R. 12(A)(1)(c). See also

Hale, 2014-Ohio-4981, at ¶ 22-23.

       {¶14} Having found error prejudicial to the appellant herein in the

particulars assigned and argued in her first assignment of error, we reverse the

judgment of the trial court and remand for further proceedings.

                                                          Judgment Reversed and
                                                               Cause Remanded

SHAW, P.J. and ROGERS, J., concur.

/jlr




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