[Cite as State v. Beard, 2020-Ohio-3393.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


State of Ohio                                    Court of Appeals No. S-19-018

        Appellee                                 Trial Court No. 18CR561

v.

Christopher R. Beard                             DECISION AND JUDGMENT

        Appellant                                Decided: June 19, 2020

                                             *****

        Beth A. Tischler, Sandusky County Prosecuting Attorney, and
        Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

        James H. Ellis III, for appellant.

                                             *****

        SINGER, J.

        {¶ 1} Appellant, Christopher R. Beard, appeals from the September 4, 2018

judgment of the Sandusky County Court of Common Pleas convicting him, following

acceptance of his guilty pleas, of four counts of aggravated trafficking in drugs

(violations of R.C. 2925.03(A)(1) and (C)(1)(c), with one count carrying a specification
that appellant used a motor vehicle in committing the offense and a specification that he

committed the offense in the vicinity of a juvenile) and one count of aggravated

possession of drugs (in violation of R.C. 2925.11(A) and (C)(1)(b)). Appellant was

sentenced to a total aggregate mandatory term of five years. Furthermore, appellant was

ordered to pay mandatory fines. For the reasons which follow, we affirm.

       {¶ 2} He asserts the following single assignment of error:

              APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

       COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT

       {¶ 3} In his sole assignment of error, appellant argues his trial counsel erred by

failing to file an affidavit of indigency to establish that appellant was unable to pay the

mandatory fines required by R.C. 2929.18(B)(1). At the change of plea hearing, trial

counsel asserted that appellant would not be able to pay the fines because he would be

going to prison for five years. However, trial counsel did not file the affidavit prior to the

sentencing hearing. The trial court noted counsel failed to file the motion prior to the

sentencing hearing and that the court had already imposed the mandatory fines.

Nonetheless, trial counsel sought leave to file the affidavit and the court granted him

leave to do so. However, trial counsel filed a partially-completed financial disclosure

form utilized by the trial court for purposes of determining whether the defendant is

entitled to appointed counsel.

       {¶ 4} Appellant asserts that the exchange between the court and trial counsel at the

change of plea hearing indicated that the trial court was willing to waive the fines if the




2.
affidavit of indigency was filed. Appellee argues the facts in this case indicated that there

was not a reasonable probability that appellant would have been found indigent because

he was previously employed, was 35 years old, was sentenced to only five years in

prison, and had almost completed college.

       {¶ 5} Appellant bears the burden of proving that his counsel was ineffective since

an attorney is presumed competent. Strickland v. Washington, 466 U.S. 668, 689, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v. Lott, 51 Ohio St.3d 160, 174, 555 N.E.2d

293 (1990). To meet this burden of proof, appellant must show that: (1) there was a

substantial violation of the attorney’s duty to his client, and (2) the defense was

prejudiced by the attorney’s actions or breach of duty in that there is a reasonable

probability of a different result in the case. Strickland, supra, at 687 and State v. Smith,

17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).

       {¶ 6} While R.C. 2929.19(B)(5) requires that a trial court consider the offender’s

present and future ability to pay the fine, the trial court must impose a mandatory fine

unless the defendant files an affidavit of indigency indicating an inability to pay the fine

prior to sentencing and the court finds the offender is indigent and unable to pay the fine.

State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 13, limited by

State v. Harper, Slip Opinion No. 2020-Ohio-2913, ¶ 42 (holding that the failure to

comply with the statutory requirements renders the sentence voidable, not void). The

burden of proof of indigency is on the defendant to prove he is unable to pay the fine.

State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998).




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       {¶ 7} Failure to file the R.C. 2929.18(B)(1) affidavit of indigency constitutes

ineffective assistance of counsel which can be addressed on direct appeal, rather than in

postconviction relief, if there is sufficient evidence in the record demonstrating that the

trial court would have found the offender was indigent and unable to pay the fine. State

v. Banks, 6th Dist. Wood Nos. WD-06-094, WD-06-095, 2007-Ohio-5311, ¶ 16; State v.

Johnson, 6th Dist. Lucas No. L-03-1046, 2004-Ohio-2458, ¶ 33; State v. Gilmer, 6th

Dist. Ottawa No. OT-01-015, 2002-Ohio-2045, *2.

       {¶ 8} In this case, no presentence investigation report was prepared. The record

shows appellant, a life-long resident of Sandusky, Ohio, was gainfully employed at the

time of his arrest, he is 35 years old, has completed five years of college and is set to

graduate after he completes 29 hours. He is described as “bright,” “hard working,” “fair

and honest,” and “intelligent.”

       {¶ 9} Based on the record, we find that there is no evidence in the record which

would indicate that the trial court would have found appellant indigent and unable to pay

the mandatory fines imposed. Therefore, we find appellant’s sole assignment of error not

well-taken.

       {¶ 10} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Sandusky

County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this

appeal pursuant to App.R. 24.

                                                                          Judgment affirmed.




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                                                                      State v. Beard
                                                                      C.A. No. S-19-018




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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