[Cite as State v. Leonard, 2018-Ohio-374.]

                            STATE OF OHIO, BELMONT COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO                                    )
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )            CASE NO. 16 BE 0043
VS.                                              )
                                                 )                   OPINION
CHANCE LEONARD                                   )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from the Court of
                                                 Common Pleas, Belmont County, Ohio
                                                 Case No. 16 CR 0124

JUDGMENT:                                        Affirmed.

APPEARANCES:
For Plaintiff-Appellee                           Attorney Daniel P. Fry
                                                 Belmont County Prosecutor
                                                 Attorney Scott Lloyd
                                                 Assistant Prosecutor
                                                 147-A West Main Street
                                                 St. Clairsville, Ohio 49350

For Defendant-Appellant                          Attorney Timothy Young
                                                 Ohio Public Defender
                                                 Attorney Stephen Hardwick
                                                 Assistant Public Defender
                                                 250 East Broad Street, Suite 1400
                                                 Columbus, Ohio 43215

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                 Dated: January 26, 2018
[Cite as State v. Leonard, 2018-Ohio-374.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Chance Leonard, appeals the trial court's
judgment rejecting his argument that the clerk improperly issued an execution of
costs. As Leonard never filed an affidavit of indigency, his argument is meritless, and
the trial court's judgment is affirmed.
        {¶2}     Leonard was indicted for one count of aggravated burglary and
aggravated robbery, both with firearm specifications. Leonard pled guilty to an
amended charge of burglary, and the aggravated robbery count was dismissed. The
trial court imposed an eight year sentence. Additionally, Leonard was ordered to
reimburse the State for the costs of supervision, confinement, and prosecution as
authorized by law. The same day the sentencing judgment was filed, the clerk issued
an execution for costs.
        {¶3}     In his sole assignment of error, Chance asserts:

        The clerk improperly issued an execution for costs.

        {¶4}     Leonard argues that since he was ordered appointed counsel, that he is
indigent and that the trial court cannot issue an execution for costs. The State did not
file a brief.

        If a nonindigent person convicted of a felony fails to pay the costs of
        prosecution pursuant to section 2949.14 of the Revised Code, the clerk
        of the court of common pleas shall forthwith issue to the sheriff of the
        county in which the indictment was found, and to the sheriff of any other
        county in which the person has property, executions against his
        property for fines and the costs of prosecution[.]

R.C. 2949.15
        {¶5}     The Eleventh District held a defendant's failure to file the statutory
indigency affidavit precluded the trial court from finding him indigent for purposes of
sentencing, reasoning:
                                                                         -2-


Ohio law does not prohibit a judge from including court costs as part of
the sentence of an indigent defendant. * * * ” State v. White, 5th Dist.
No. 02CA23, 2003-Ohio-2289, at ¶ 9.

         Although White dealt specifically with R.C. 2949 .14, we find its
reasoning to be persuasive authority to guide in our analysis of R.C.
2949.15.

         ** *

R.C. 2929.18(B)(1) requires that an indigent offender file an affidavit
with the trial court prior to his or her sentencing to be exempt from
paying a mandatory fine.

In the instant case appellant failed to supply the trial court with an
affidavit attesting to his indigency. Instead, appellant requests that we
rely upon his presentence investigation report and the trial court's
previous finding of indigency for appointment of counsel as evidence of
his indigency for sentencing purposes. We decline to do so.

In State v. Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-659, the
Supreme Court of Ohio held that the failure of a party to supply the trial
court with an affidavit attesting to his indigency “is, standing alone, a
sufficient reason to find that the trial court committed no error by
imposing the statutory fine.” Id. The Court further stated that the statute
is clear and unambiguous as to the requirement that an affidavit be filed
before     sentencing.   Id.   at   633.   Accordingly,   the   presentence
investigation report submitted prior to sentencing does not act to
replace a properly filed affidavit. As a result, appellant's argument that
the trial court was put on notice of his indigency is not well taken.

Furthermore, in State v. Grissom, 11th Dist. No.2001-L-107, 2002-Ohio-
                                                                               -3-


       5154, 2002 Ohio App. LEXIS 5206, this court was presented with the
       issue of whether the trial court erred by imposing mandatory fines when
       a defendant failed to submit an affidavit of indigency, but had previously
       been found to be an indigent for the purpose of appointment of counsel.
       We found that there is an important distinction to be made between
       indigency as it relates to a defendant's right to counsel and proof of
       indigency required to avoid a mandatory statutory fine. Id. at ¶ 34.

State v. McDowell, 11th Dist. No. 2001-P-0149, 2003-Ohio-5352, ¶ 57-58; ¶ 65-68.
       {¶6}   Here there is no affidavit of indigency in the record. Despite this,
Leonard argues that the order appointing trial counsel serves as proof of his
indigency. This is insufficient; Leonard was required to file the affidavit before
sentencing.
       {¶7}   Leonard additionally argues that the trial court was required to make a
finding that he had failed to pay the costs of the action and as such the execution
was improper. The record demonstrates that the costs are unpaid. Leonard does not
cite any authority requiring particularized language or findings in a judgment entry
prior to the execution.
       {¶8}   As Leonard's arguments are meritless, his assignment of error is
overruled and the trial court's judgment is affirmed.

Donofrio, J., concurs.

Waite, J., concurs.
