[Cite as State v. Johnson, 2014-Ohio-3776.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2011-11-212

                                                    :          OPINION
   - vs -                                                       9/2/2014
                                                    :

DONALD LEE JOHNSON,                                 :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2011-02-0199



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Allen M. Vender, Assistant Ohio Public Defender, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Donald Johnson, appeals the imposition of a mandatory

fine by the Butler County Court of Common Pleas.

        {¶ 2} Johnson was indicted on single counts of aggravated robbery, felonious

assault, robbery, and aggravated possession of drugs after he robbed a pharmacy of

prescription drugs. Johnson initially pled not guilty to the charges, but subsequently reached
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a plea agreement with the state. Johnson pled no contest to aggravated robbery, robbery,

and aggravated possession of drugs, and the trial court found Johnson guilty of those

charges, which also included a gun specification. The trial court sentenced Johnson to an

aggregate 13-year sentence and ordered Johnson to pay $19,000 in fines, $10,000 of which

was mandatory.

       {¶ 3} After sentencing, Johnson filed an affidavit of indigency so that Johnson's court-

appointed counsel could be compensated. However, no such affidavit was filed with the

court prior to sentencing, or prior to the trial court's imposition of fines as part of Johnson's

sentence. Johnson now appeals the trial court's decision to impose the mandatory fine

raising two assignments of error. For ease of discussion, and because the assignments of

error are interrelated, we will address them together.

       {¶ 4} Assignment of Error No. 1:

       {¶ 5} JOHNSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN

COUNSEL FAILED TO FILE AN AFFIDAVIT OF INDIGENCY OF [sic] JOHNSON'S

BEHALF, OR OTHERWISE ADVOCATE AGAINST FINES, AND JOHNSON WAS IN FACT

INDIGENT.

       {¶ 6} Assignment of Error No. 2:

       {¶ 7} THE TRIAL COURT ERRED BY ORDERING JOHNSON TO PAY $10,000 IN

FINES WITHOUT REASONABLY CONSIDERING JOHNSON'S PRESENT AND FUTURE

ABILITY TO PAY AS REQUIRED BY R.C. 2929.19(B)(5).

       {¶ 8} Johnson argues in his assignments of error that the trial court erred in imposing

fines upon him because he is indigent, and that his trial counsel was ineffective for failing to

argue against the fines.

       {¶ 9} The United States Supreme Court established a two-part test in regard to

ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
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(1984). That test requires an appellant to establish that first, "his trial counsel's performance

was deficient; and second, that the deficient performance prejudiced the defense to the point

of depriving the appellant of a fair trial." State v. Myers, 12th Dist. Fayette No. CA2005-12-

035, 2007-Ohio-915, ¶ 33, citing Strickland. Regarding the first prong, an appellant must

show that his counsel's representation "fell below an objective standard of reasonableness."

Strickland, 466 U.S. at 688. The second prong requires the appellant to show "a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 694.

       {¶ 10} According to R.C. 2929.18(B)(1), the trial court is obligated to impose

mandatory fines when the defendant commits certain drug-related felonies. However, the

statute goes on to provide, "if an offender alleges in an affidavit filed with the court prior to

sentencing that the offender is indigent and unable 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."

(Emphasis added.) Thus, to avoid imposition of a fine at the time of sentencing, two things

must occur, (1) the defendant must submit to the court an affidavit of indigency prior to

sentencing, and (2) the court must render a determination that the defendant is in fact

indigent. Neither of the two prerequisites for the avoidance of a mandatory fine occurred in

the case at bar.

       {¶ 11} "Courts in Ohio have held that the failure to file an affidavit alleging a

defendant's indigency and inability to pay a mandatory fine only constitutes ineffective

assistance of counsel when the record shows a reasonable probability that the trial court

would have found the defendant indigent and unable to pay the fine had the affidavit been

filed." State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002 WL 737060, *2 (Apr. 26, 2002).

The filing of an affidavit of indigency by a defendant does not automatically entitle the
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defendant to a waiver of the mandatory fine. State v. Bolden, 12th Dist. Preble No. CA2003-

03-007, 2004-Ohio-184. "The burden is upon the offender to affirmatively demonstrate that

he or she is indigent and is unable to pay the mandatory fine." (Emphasis sic.) State v.

Gipson, 80 Ohio St.3d 626, 635 (1998).

       {¶ 12} Even so, and according to R.C. 2929.19(B)(5), "before imposing a financial

sanction under section 2929.18 of the Revised Code * * * the court shall consider the

offender's present and future ability to pay the amount of the sanction or fine." Although the

statute imposes a duty on the trial court to consider the offender's present and future ability

to pay, there are no express factors that must be taken into consideration or findings

regarding the offender's ability to pay that must be made on the record. State v. Simms, 12th

Dist. Clermont No. CA2009-02-005, 2009-Ohio-5440, ¶ 9.                   Compliance with R.C.

2929.19(B)(5) can be shown through the trial court's use of a Presentence Investigation

Report (PSI), which often provides financial and personal information, in order to aid the

court in making its determination. Id.

       {¶ 13} Johnson argues that his trial counsel was ineffective for failing to file an affidavit

of indigency because the trial court would not have ordered him to pay a mandatory fine had

the affidavit of indigency been filed. While the record indicates that Johnson was indigent in

regard to obtaining court-appointed counsel, the record does not show a reasonable

probability that the trial court would have found Johnson indigent and unable to pay the fine

had the affidavit been filed.

       {¶ 14} As recognized by the Third District Court of Appeals, there is a difference

between determining that an appellant is indigent for purposes of appointing counsel as

opposed to ordering mandatory fines. State v. Powell, 78 Ohio App.3d 784, 789-90 (3d

Dist.1992). The Powell court explained that,

              the basis for requiring a determination that the defendant is
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              unable to pay a mandatory fine when the trial court previously
              found the defendant to be indigent for purposes of receiving
              appointed counsel is simple. Many criminal defendants, even
              those who have steady income, are not able to raise sufficient
              funds to pay the retainer fee required by private counsel before
              counsel will make an initial appearance. This difference is even
              more evident in cases where the defendant has to utilize his
              financial resources to raise sufficient bond money in order to be
              released from jail. In contrast, the payment of a mandatory fine
              over a period of time is not equivalent to the immediate need for
              legal representation at the initiation of criminal proceedings.

       {¶ 15} This court and others have adopted similar reasoning. See State v. Bolden,

12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 35 (noting that "the determination

that a defendant is indigent for purposes of appointed counsel is separate and distinct from a

determination of being indigent for purposes of paying a mandatory fine"); State v. Waddell,

4th Dist. Lawrence No. 10CA27, 2011-Ohio-4629, ¶ 8, fn. 2 (noting that "indigency for

purposes of affording counsel, and for purposes of paying fines, are separate and distinct

issues"); State v. Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 29 (noting

that Ohio courts have uniformly held that "a determination that a criminal defendant is

indigent for purposes of receiving court appointed counsel does not prohibit the trial court

from imposing a financial sanction pursuant to R.C. 2929.18" because "an offender's ability

to pay a fine over a period of time is not equivalent to the ability to pay legal counsel a

retainer fee at the outset of the criminal proceedings"); and State v. White, 5th Dist. Perry No.

12-CA-00018, 2013-Ohio-2058, ¶ 16 (noting that there is a "distinction between an offender's

ability to pay a fine and the offender's need for appointed counsel due to indigence. The

difference exists in the offender's ability to raise the initial retainer needed to obtain counsel

as opposed to the period of time given to gradually pay the imposed fine").

       {¶ 16} The fact that Johnson could not afford private counsel at the moment criminal

proceedings began against him does not mean that he cannot afford to pay a fine at some

point in the future. In the case at bar, there is insufficient evidence in the record before us to
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demonstrate a reasonable probability that the trial court would have found Johnson indigent

and unable to pay the fine had defense counsel filed an affidavit of indigency prior to

sentencing.

        {¶ 17} In accordance with R.C. 2929.19(B)(5), the trial court expressly noted in its

sentencing entry that it had considered Johnson's present and future ability to pay fines, and

imposed not only the mandatory fine, but also $9,000 in other fines. The trial court ordered a

PSI, which detailed Johnson's age, education, physical and mental health, and employment

history. The trial court noted during sentencing that it had reviewed the PSI along with the

facts and circumstances of Johnson's case.

        {¶ 18} The information contained in the PSI indicates that Johnson was only 27 at the

time of his sentencing so that he will be 40 years old upon his release from prison with many

years of employability remaining. The PSI also indicated that Johnson had a history of being

employed before his convictions, including a position as a fabricator with a concrete

company. The record does indicate that while employed as a fabricator Johnson suffered an

injury in which one of his fingers was amputated. However, Johnson does not explain how

his missing one finger renders the rest of his body unable to seek gainful employment or how

missing a finger precludes his ability to maintain employment once he has served his

sentence.

        {¶ 19} While it is true that Johnson is not currently employed and will not be during his

13-year confinement, the controlling statute specifically requires a trial court to consider the

offender's future ability to pay as well as his present ability. We do not disagree with

Johnson that he does not have the present ability to pay, but we cannot say that the trial
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court erred in determining that Johnson has the future ability to pay.


1 We also anticipate Johnson's situation will improve during his time in prison. Johnson expressed in his
statements to the court that he was grateful for being arrested because it would provide him the opportunity to
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        {¶ 20} After reviewing the record, Johnson has failed to demonstrate that his trial

counsel was ineffective for failing to file an affidavit of indigency specific to the imposition of

mandatory fines. Nor has Johnson demonstrated that the trial court failed to abide by R.C.

2929.19(B)(5), where the record is clear that the trial court considered Johnson's present and

future ability to pay the fines. As such, Johnson's assignments of error are overruled.

        {¶ 21} Judgment affirmed.


        RINGLAND, P.J., and S. POWELL, J., concur.




combat the negative impacts of his drug addiction. We agree with Johnson that he will have an opportunity to
obtain education, receive treatment for his drug addiction and other health issues, and also continue to grow and
mature while he serves his sentence.
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