[Cite as State v. Johnson, 2017-Ohio-577.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 16-COA-010
ERIC M. JOHNSON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Ashland County Court of
                                               Common Pleas, Case No. 15-CRI-189




JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         February 13, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHRISTOPHER R. TUNNELL                         MATTHEW J. MALONE
Ashland County Prosecutor                      Law Offices of Matthew J. Malone, LLC
110 Cottage Street, Third Floor                10 East Main Street
Ashland, Ohio 44805                            Ashland, Ohio 44805

JOSHUA T. ASPIN
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 16-COA-010                                                      2

Hoffman, J.

       {¶1}   Defendant-appellant Eric M. Johnson appeals the April 13, 2016 Judgment

Entry – Sentencing entered by the Ashland County Court of Common Pleas, which denied

his motion to vacate mandatory fines and ordered him to pay the maximum fine of

$7,500.00. Plaintiff-appellee is the state of Ohio.

                                 STATEMENT OF THE CASE1

       {¶2}   On November 6, 2015, Detective Brian Evans of the Ashland Police

Department filed a Complaint in the Ashland County Court of Common Pleas, charging

Appellant with one count of aggravated possession of drugs, in violation of R.C.

2925.11(A), a felony of the second degree. Following a bond hearing, the trial court

released Appellant on his own recognizance. Appellant filed an Affidavit of Indigency.

The trial court found Appellant “presently indigent for purposes of appointment of counsel”

and appointed Attorney R. Rolf Whitney to represent him. November 12, 2015 Judgment

Entry at 2.

       {¶3}   The trial court bound the case over to the Ashland County Grand Jury for

further consideration. Thereafter, on December 10, 2015, the Ashland County Grand

Jury indicted Appellant on two counts of aggravated trafficking in drugs, in violation of

R.C. 2925.03(A)(2), felonies of the second degree; one count of aggravated possession

of drugs, in violation of R.C. 2925.11(A), a felony of the second degree; and one count of

possessing criminal tools, in violation of R.C. 2923.24(A), a felony of the first degree.




1 A statement of the facts underlying Appellant’s conviction is unnecessary for our
disposition of this appeal.
Ashland County, Case No. 16-COA-010                                                         3


Each count carried an attendant forfeiture specification pursuant to R.C. 2981.04 and

R.C. 2941.1417.

        {¶4}     Appellant entered a plea of not guilty to the Indictment at his arraignment

on December 14, 2015. The trial court scheduled the matter for jury trial on March 22,

2016.

        {¶5}     On March 7, 2016, Appellant appeared before the trial court, withdrew his

former plea of not guilty, and entered a plea of guilty to one count of aggravated trafficking

in drugs and the attendant forfeiture specification. Upon the state’s motion, the trial court

dismissed the remaining three counts of the Indictment. The trial court ordered a pre-

sentence investigation and scheduled a sentencing hearing for April 11, 2016. Prior to

sentencing, Appellant filed a motion to waive the mandatory fine. Therein, Appellant

stated he would be unable to pay the fine as a result of his indigent status at the time of

sentencing. Appellant attached an Affidavit of Financial Inability to Pay Fine and Costs

to his motion.

        {¶6}     The trial court sentenced Appellant to a term of imprisonment of four years.

Overruling Appellant’s motion to waive the mandatory fine, the trial court imposed the

maximum fine of $7,500. The trial court memorialized Appellant’s sentence and fine via

Judgment Entry-Sentencing filed April 13, 2016.

        {¶7}     It is from that judgment entry Appellant appeals, raising as his sole

assignment of error:



                 I. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING

        UPON APPELLANT A MANDATORY FINE OF $7,500.
Ashland County, Case No. 16-COA-010                                                         4




       {¶8}   Appellant was convicted of aggravated trafficking in drugs, in violation of

R.C. 2925.03(A)(2). R.C. 2925.03(D)(1) provides: “If the violation of division (A) of this

section is a felony of the first, second, or third degree, the court shall impose upon the

offender the mandatory fine specified for the offense under division (B)(1) of section

2929.18 of the Revised Code unless, as specified in that division, the court determines

that the offender is indigent.” (Emphasis added).

       {¶9}   R.C. 2929.18, which governs financial sanctions for felony offenses, reads,

in relevant part:



              For a first, second, or third degree felony violation of an provision of

       R.C. Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing

       court shall impose upon the offender a mandatory fine of at least one-half

       of, but not more than, the maximum statutory fine amount authorized for the

       level of the offense pursuant to division (A)(3) of this section, 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 described in this division,

       the court shall not impose the mandatory fine upon the offender. R.C.

       2929.18(B)(1).



       {¶10} In State v. Gipson ( 1998), 80 Ohio St.3d 626, 634, the Ohio Supreme Court

explained a trial court must impose a mandatory fine unless the offender files an affidavit

of indigency prior to sentencing, and the trial court determines the offender is indigent
Ashland County, Case No. 16-COA-010                                                          5

and unable to pay the mandatory fine. Id. at 634. The Gipson Court emphasized the

importance of the second requirement, noting “an offender who files an affidavit alleging

that he or she is indigent is unable to pay a mandatory fine is not automatically entitled to

a waiver of that fine”, but has the affirmative burden to establish his or her inability to pay

a fine in the future. Id. at 634-635. Therefore, in determining whether an offender is

indigent for the purpose of avoiding a mandatory fine, the trial court “may inquire into the

defendant’s ability to pay the mandatory fine in the future and is not limited to a

consideration of a defendant’s indigency at the time [the fine] was imposed.”         State v.

Williams, 11th Dist Lake App. No., 2014-Ohio-65 at para. 18, citing State v. McDowell,

Portage App. No. 2001-P-0149, 2003-Ohio-5352 at para. 69. R.C. 2929.19(B)(5) requires

a trial court to consider an “offender’s present and future ability to pay the amount of the

sanction of fine.”

       {¶11} During Appellant’s sentencing hearing, the trial court noted it had received

and reviewed the pre-sentence investigation report.          The PSI included information

regarding Appellant’s financial situation, detailing his assets and monthly income,

specifically noting Appellant received monthly payments as part of his divorce settlement.

The PSI detailed Appellant’s future earning abilities such as his age, education, and prior

employment. Appellant had a Bachelor’s degree and a Master’s degree. Appellant taught

music in a public school. He also owned a firewood business, which he described as

“very lucrative”.

       {¶12} Although Appellant filed a timely motion and the requisite affidavit, the

affidavit focused solely on Appellant’s current financial situation.       Appellant did not

establish his inability to pay a fine in the future. Based upon the foregoing, we find the
Ashland County, Case No. 16-COA-010                                                 6


trial court did not abuse its discretion in imposing the maximum mandatory fine upon

Appellant.

      {¶13} Appellant’s sole assignment of error is overruled.

      {¶14} The judgment of the Ashland County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
