[Cite as State v. Russia, 2013-Ohio-4125.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :        CASE NO. CA2013-01-003

                                                   :               OPINION
    - vs -                                                          9/23/2013
                                                   :

WILLIAM J. RUSSIA,                                 :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2012-05-0819



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

Brandabur & Bowling Co., L.P.A., Jeffrey W. Bowling, 315 South Monument Avenue,
Hamilton, Ohio 45011, for defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, William Russia, appeals his sentence from the Butler

County Court of Common Pleas for drug trafficking.

        {¶ 2} On June 4, 2012, Russia was indicted on the following charges: (1) three

counts of trafficking in drugs in violation of R.C. 2925.03(A)(1), felonies of the first degree; (2)

two counts of trafficking in drugs in violation of R.C. 2925.03(A)(1), felonies of the second
                                                                         Butler CA2013-01-003

degree; (3) two counts of trafficking in drugs in violation of R.C. 2925.03(A)(1), felonies of the

third degree; (4) two counts of trafficking of drugs in violation of R.C. 2925.03(A)(1), felonies

of the fourth degree; and (5) one count of trafficking in drugs in violation of R.C.

2925.03(A)(1), a felony of the fifth degree.

       {¶ 3} On November 13, 2012, Russia pled guilty to one count of aggravated

trafficking in drugs, a felony of the third degree, one count of trafficking in heroin, a felony of

the second degree, and one count of trafficking in heroin, a felony of the first degree, all in

violation of R.C. 2925.03(A)(1).

       {¶ 4} On December 11, 2012, Russia was sentenced to 24 months in prison for the

aggravated trafficking in drugs conviction, along with a $5,000 fine. He was sentenced to five

years in prison for the second-degree trafficking conviction, along with a $7,500 fine. And

finally, Russia was sentenced to six years in prison for the first-degree trafficking conviction,

along with a $10,000 fine. All of the prison terms were to run concurrently. Russia was also

ordered to pay restitution in the amount of $900 as well as the cost of prosecution.

       {¶ 5} On January 3, 2013, Russia appealed his sentence, raising the following

assignment of error for our review:

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE AN

AFFIDAVIT OF INDIGENCY PRIOR TO APPELLANT'S SENTENCING HEARING AND FOR

FAILING TO ACCEPT THE TRIAL COURT'S OFFER TO CONTINUE MATTER [SIC] FOR

DEFENSE COUNSEL TO BRIEF THE ISSUE FOR THE COURT'S REVIEW.

       {¶ 8} This court has held that it will not find ineffective assistance of counsel for

failure to file an affidavit of indigency where an appellant fails to show a reasonable

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

the affidavit been filed. State v. Anderson, 12th Dist. Fayette No. CA2008-07-026, 2009-
                                                -2-
                                                                          Butler CA2013-01-003

Ohio-2521, ¶ 36; State v. Botos, 12th Dist. Butler No. CA2004-06-145, 2005-Ohio-3504, ¶

28-30; State v. Burnett, 10th Dist. Franklin No. 08AP-304, 2008-Ohio-5224, ¶ 8-9 (defendant

filing affidavit is not automatically entitled to a waiver of fine); State v. Banks, 6th Dist. Lucas

Nos. WD-06-094, WD-06-095, 2007-Ohio-5311, ¶ 16-18 (no evidence in record that

defendant had condition that would prevent her from working in the future, in addition, record

reflects that defendant had the ability to retain private legal counsel); see R.C. 2929.18(B);

Strickland v. Washington (1984), 466 U.S. 668, 687-88, 104 S.Ct. 2052.

       {¶ 9} In the present case, the trial court confirmed that there was, "no physical

reason, Mr. Russia, that you cannot work, is there?" Russia responded, "[n]o, sir." The trial

court repeated this questioning to Russia later, asking about his "ability to work and he

indicated that he does have the ability to work; is that correct, Mr. Russia?" Russia again

responded in the affirmative.

       {¶ 10} In addition, the trial court had available Russia's presentence investigative

report, which detailed his youthful age and education. That information, combined with

Russia's acknowledgement that he would be capable of working in the future, allowed the

trial court to find that Russia had future earning capabilities that would allow him to pay the

fines attached to his sentence.

       {¶ 11} Accordingly, we cannot find ineffective assistance of counsel for failure to file

an affidavit of indigency where Russia has not shown a reasonable probability that the trial

court would have found him indigent had the affidavit been filed.

       {¶ 12} The assignment of error is overruled.

       {¶ 13} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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