[Cite as State v. Stone, 2012-Ohio-5488.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 12-COA-021
LOGAN K. STONE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Ashland Municipal Court,
                                               Case No. 12-TRC-2648, and 12-CRB-438


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        November 26, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


W. DAVID MONTAGUE                              THOMAS L. MASON
Assistant Director of Law                      Mason, Mason & Kearns
1213 E. Main St.                               Post Office Box 345
Ashland, Ohio 44805                            153 West Main Street
                                               Ashland, Ohio 44805-0345
Ashland County, Case No. 12-COA-021                                                       2

Hoffman, J.


        {¶1}   Defendant-appellant Logan K. Stone appeals his June 13, 2012 conviction

and sentence entered by the Ashland Municipal Court. Plaintiff-appellee is the state of

Ohio.

                           STATEMENT OF THE FACTS AND CASE1

        {¶2}   On April 10, 2012, Appellant operated a motor vehicle in Ashland County,

Ohio, striking another vehicle. Appellant was charged with operating a vehicle under

the influence of alcohol, failing to stop within a clear distance ahead, open container of

alcohol in a motor vehicle, persistent disorderly conduct and menacing.

        {¶3}   At arraignment, Appellant expressed his desire to retain counsel, but

indicated he could not afford to pay the services of an attorney.           Appellant then

completed an application for indigency status.

        {¶4}   Following a hearing on April 12, 2012, the trial court found Appellant not to

be indigent. The trial court then continued the case allowing Appellant an opportunity to

obtain counsel on his own behalf.

        {¶5}   On April 24, 2012, Appellant entered a plea of guilty to the charge of

persistent disorderly conduct, a violation of R.C. 2917.11(E)(1)(A). In exchange, the

state agreed to nolle the charges of menacing, in violation of R.C. 2903.22, and open

container, in violation of R.C. 4301.62(B)(4).




1
 A thorough rendition of the facts relative to this case is unnecessary for our disposition
of the within appeal.
Ashland County, Case No. 12-COA-021                                                        3


       {¶6}   Via Journal Entry of June 7, 2012, the trial court found Appellant guilty of

operating a vehicle under the influence of alcohol and the assured clear distance

violation.

       {¶7}   Via Judgment Entry of June 13, 2012, the trial court sentenced Appellant

to thirty days in jail, which sentence was to be served consecutive to the sentence

previously imposed in an unrelated case, for a total of two hundred and ten days in jail.

The trial court also imposed a fine and court costs.

       {¶8}   Appellant now appeals, assigning as error:

       {¶9}   “I. THE TRIAL COURT DENIED THE APPELLANT THE RIGHT TO

COUNSEL BY REFUSING TO APPOINT COUNSEL TO REPRESENT HIM EVEN

THOUGH THE APPELLANT HAD INFORMED THE COURT TWICE THAT HE COULD

NOT AFFORD TO HIRE AN ATTORNEY.”

       {¶10} In the sole assignment of error, Appellant maintains he was denied the

right to counsel as he informed the trial court he could not afford an attorney.

       {¶11} The determination of a defendant's indigency status is left to the sound

discretion of the trial court, and will not be reversed on appeal absent an abuse of

discretion. State v. Weaver, 38 Ohio St.3d 160, 527 N.E. 2d 805 (1988). Here, the trial

court conducted a hearing to determine Appellant's indigency status. Appellant has not

provided his application for indigency status to this Court for review. Rather, Appellant

argues he simply could not afford the cost of the attorney services. At the hearing

relative to Appellant's indigency status, the following exchange occurred on the record:

       {¶12} “The Court: Okay. So none of this money that you’re showing on this form

for your spouse is as a result of employment?
Ashland County, Case No. 12-COA-021                                                        4


       {¶13} “The Defendant: No.

       {¶14} “The Court: And you’re not employed, correct? You have no income at

all?

       {¶15} “The Defendant: I’m self-employed. I don’t, I’m not employed anywhere. I

work when I can find work.

       {¶16} “The Court: And what do you do, Mr. Stone?

       {¶17} “The Defendant: I have my, own my own business.

       {¶18} “The Court: Well, how much do you typically make in a month from this

business?

       {¶19} “The Defendant: It varies. Some months I can make up to 8 grand a

month if I can find work. But like I haven’t worked, I didn’t work at all February.

       {¶20} “The Court: How much money did you make in 2011?

       {¶21} “The Defendant: Last year? I think I grossed 18.

       {¶22} “The Court: And the business is still a going concern?              You’re still

operating?

       {¶23} “The Defendant: Yes, sir. It’s just me; I run my own business. I do my

own work.

       {¶24} “The Court: Do you have a checking account for this business?

       {¶25} “The Defendant: I do.

       {¶26} “The Court: There’s no balance in it?

       {¶27} “The Defendant: No I didn’t have work for most of February.

       {¶28} “The Court: Mr. Stone, based on the information set forth in this affidavit

and your testimony here today, I’m not finding that you’re indigent. You’re not qualified
Ashland County, Case No. 12-COA-021                                                        5


for court-appointed counsel. You certainly have a right to counsel. But with an income

level that you have, I’m not going to require the taxpayers to pay for your lawyer. So

you’ll have to retain counsel on your own if you want one.”

       {¶29} Tr. at 12-13.

       {¶30} Upon review of the record, we find the trial court did not abuse its

discretion in denying Appellant's application for indigency status. Again, Appellant has

not submitted his affidavit for indigency status to this Court for review, and we do not

have evidence demonstrating the trial court abused its discretion in its findings.

Although at a subsequent pretrial Appellant advised the trial court he was unable to

obtain counsel, he did not specifically renew his request for appointed counsel but

instead initiated plea negotiations indicating he wanted to save the court time and

money.

       {¶31} The following exchanged occurred on the record during the April 24, 2012

pretrial hearing:

       {¶32} “The Court: Are you going to be retaining counsel on your own?

       {¶33} “The Defendant: I was going to but I can’t afford it. They wanted $750 to

appear in court today, and I don’t have it. To save the court time and money, I’d like to

plead guilty to all the traffic violations if we can work something out to where the criminal

charges are dropped.”

       {¶34} Tr. at 16-17.

       {¶35} Based upon the foregoing, we find Appellant has not demonstrated the

trial court abused its discretion in finding he was not indigent and in not appointing

counsel on his behalf.
Ashland County, Case No. 12-COA-021                                              6


      {¶36} Appellant’s sole assignment of error is overruled.

      {¶37} The judgment of the Ashland Municipal Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                           s/ William B. Hoffman_________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards ___________________
                                           HON. JULIE A. EDWARDS
Ashland County, Case No. 12-COA-021                                                7


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :        JUDGMENT ENTRY
                                            :
LOGAN K. STONE                              :
                                            :
       Defendant-Appellant                  :        Case No. 12-COA-021


       For the reason stated in our accompanying Opinion, the judgment of the Ashland

Municipal Court is affirmed. Costs to Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Julie A. Edwards ___________________
                                            HON. JULIE A. EDWARDS
