[Cite as Maumee v. Wallace, 2020-Ohio-2652.]




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


State of Ohio/City of Maumee                       Court of Appeals No. L-19-1093

        Appellee                                   Trial Court No. 19CRB00141

v.

Stacy S. Wallace                                   DECISION AND JUDGMENT

        Appellant                                  Decided: April 24, 2020

                                               *****

        Sarah R. Anjum, for appellant.

                                               *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Stacy Wallace, appeals the judgment of the Maumee Municipal

Court, convicting her of one count of attempted petty theft in violation of R.C. 2913.02

and 2923.02, a misdemeanor of the second degree, and sentencing her to pay a fine of

$272 plus court costs. For the reasons that follow, we affirm.
                              I. Facts and Procedural Background

       {¶ 2} On February 13, 2019, a criminal complaint was filed charging appellant

with one count of theft in violation of R.C. 2913.02, a misdemeanor of the first degree,

based upon the allegation that appellant took approximately $72 in merchandise from a

Meijer store.

       {¶ 3} On February 26, 2019, appellant appeared for arraignment, at which she was

determined to be indigent. A public defender was appointed for her, and she entered an

initial plea of not guilty.

       {¶ 4} On February 28, 2019, appellant entered into a plea agreement with the city

whereby she agreed to plead no contest to the amended charge of attempted petty theft in

violation of R.C. 2913.02 and 2923.02, a misdemeanor of the second degree. The trial

court accepted the plea, found her guilty, and continued the matter for preparation of a

presentence investigation report.

       {¶ 5} The sentencing hearing was held on April 4, 2019. At the hearing, counsel

for appellant stated in mitigation that she has a degree in medical billing and coding, and

that she has stable employment. Counsel also offered that appellant has acknowledged

that her actions were wrong. The court then sentenced appellant to 90 days in jail, with

70 days suspended, and the remaining 20 days to be served on electronic home

monitoring. The court found that appellant was indigent for purposes of the fees

associated with the electronic home monitoring. The court also ordered appellant to be




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placed on inactive probation for three years. Finally, the court ordered appellant to pay a

fine of $272 plus court costs.

                                  II. Assignment of Error

       {¶ 6} Appellant has timely appealed her judgment of conviction, and now asserts

one assignment of error for our review:

              1. The trial court erred in imposing fines on Appellant after finding

       she is indigent.

                                       III. Analysis

       {¶ 7} We review misdemeanor sentences for an abuse of discretion. State v.

Heidelberg, 2019-Ohio-2257, 138 N.E.3d 537, ¶ 23 (6th Dist.). An abuse of discretion

connotes that the trial court’s attitude is unreasonable, arbitrary, or unconscionable. State

v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 8} In her assignment of error, appellant argues that because the trial court found

her indigent for purposes of the costs of electronic home monitoring, it should have

ordered her to serve community service in lieu of paying a fine. Alternatively, she argues

that the fine should be waived.

       {¶ 9} R.C. 2929.28(A) provides that “In addition to imposing court costs pursuant

to section 2947.23 of the Revised Code, the court imposing a sentence upon an offender

for a misdemeanor, including a minor misdemeanor, may sentence the offender to any

financial sanction or combination of financial sanctions authorized under this section.”




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One of those financial sanctions is a fine of not more than $750 for a misdemeanor of the

second degree. R.C. 2929.28(A)(2)(a)(ii).

       {¶ 10} R.C. 2929.28(B) provides, “If the court determines a hearing is necessary,

the court may hold a hearing to determine whether the offender is able to pay the

financial sanction imposed pursuant to this section or court costs or is likely in the future

to be able to pay the sanction or costs.” “If the court determines that the offender is

indigent and unable to pay the financial sanction or court costs, the court shall consider

imposing and may impose a term of community service under division (A) of section

2929.27 of the Revised Code in lieu of imposing a financial sanction or court costs.” Id.

       {¶ 11} “Ohio courts have interpreted R.C. 2929.28(B) to mean that a hearing to

determine ability to pay is not required; however, there must, at minimum, be some

evidence in the record that the court considered the defendant’s present and future ability

to pay the sanction imposed.” Maumee v. Hensley, 6th Dist. Lucas No. L-18-1205, 2019-

Ohio-2050, ¶ 12, quoting State v. Rhoda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-

6291, ¶ 15.

       {¶ 12} In Hensley, we determined that the record was devoid of any indication that

the court considered the defendant’s present and future ability to pay. Id. at ¶ 13. In that

case, the defendant was homeless, was suffering from physical and mental health issues,

and had been drug dependent for decades. Further, there was no discussion of the

defendant’s education, employment history, ability to work, or alternative sources of

income. Id.




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       {¶ 13} Here, in contrast, appellant stated in mitigation that she has a degree in

medical billing and coding and has stable employment. Moreover, prior to imposing the

sentence, the trial court announced that it considered the statements made in mitigation.

Therefore, we hold that there is some evidence in the record that the trial court considered

appellant’s present and future ability to pay, and thus the trial court did not abuse its

discretion when it imposed the $272 fine.

       {¶ 14} Accordingly, appellant’s assignment of error is not well-taken.

                                       IV. Conclusion

       {¶ 15} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Maumee Municipal Court is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                          Judgment affirmed.

       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
Christine E. Mayle, J.
                                                 _______________________________
Gene A. Zmuda, P.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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