         [Cite as State v. McCants, 2020-Ohio-3441.]

                          IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :    APPEAL NO. C-190143
                                                       TRIAL NO. B-1600121
        Plaintiff-Appellee,                       :

                                                         O P I N I O N.
  vs.                                             :

ALBERT MCCANTS,                                   :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: June 24, 2020




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




CROUSE, Judge.

       {¶1}    In this appeal, we are tasked with determining whether the trial court

erred in imposing the maximum amount of fines, court costs, and court-appointed

attorney fees on an indigent defendant who was sentenced to 16 years in prison

pursuant to guilty pleas to multiple felonies. For the following reasons, we affirm the

trial court’s order imposing the fines and court costs, but reverse the court’s order on

attorney fees and remand for the court to conduct a hearing to determine McCants’s

present and future ability to pay those fees.

                                Factual Background


       {¶2}   McCants entered into a plea agreement, agreeing to plead guilty to

voluntary manslaughter, theft, tampering with evidence, and obstruction of official

business in exchange for a 16-year agreed prison sentence. McCants admitted that

he is a drug addict who owed money to his drug dealer, the victim in this case.

McCants claimed that when he went to the victim’s home to tell him that he would

need more time to get the money, the victim pulled out a gun and the two started

fighting. McCants admitted to stabbing the victim several times and fleeing the

scene, leaving the victim to die of his wounds. The victim’s home caught fire shortly

after he was killed, but McCants denied starting the fire.

       {¶3}   In sentencing McCants, the trial court stated:

     Actually, sir, I wish I could give you more, but your attorneys did a great

     job for you and negotiated that plea to 16. That’s what the state is giving

     you. * * * There must be some reason they are offering 16, so I can’t give

     you anymore, even though I would like to.




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       {¶4}      During the sentencing hearing, the court spent considerable time

questioning McCants about the offenses. It stated:

     A man died here. You didn’t show any emotion at all when his family

     members spoke, not a single bit of emotion. I don’t really think you’re

     sorry for what you did. I don’t, and that’s why I would give you more if I

     could, and that’s why I’m so hard on you, sir, because a man lost his life at

     your hands.

       {¶5}      The court did not reject the agreed sentence. But the court did add the

maximum amount of fines possible to McCants’s aggregate sentence, which totaled

$35,000.      The court further imposed the maximum amount of court costs and

ordered McCants to pay the court-appointed attorney fees.

       {¶6}      McCants raises three assignments of error on appeal: (1) the trial court

erred in finding that he was not indigent, (2) the trial court erred in imposing

maximum, consecutive fines, and (3) the trial court erred in imposing court costs and

attorney fees.

                                          Fines

       {¶7}      For ease of discussion, we consider McCants’s first and second

assignments of error together. He argues that the trial court erred in finding that he

was not indigent, and that the court erred in imposing maximum, consecutive fines.

       {¶8}      It is important to emphasize that we are not dealing with a mandatory

fine in this case. The law did not require the trial court to fine McCants. The plea

agreement included an agreed 16-year prison sentence and notice of the potential

maximum fines.        The plea agreement did not include an agreement regarding




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whether fines would be imposed. In fact, the state did not request that the court

impose a fine.

       {¶9}      The trial court clearly was disturbed by the facts of this case and what

it perceived to be a lack of remorse by McCants. The court made clear that it would

accept the agreed plea agreement for 16 years in prison, but that if McCants and the

state had not included an agreed sentence as part of the plea agreement, then the

court would have sentenced McCants to more than 16 years in prison.

       {¶10} We review the imposition of fines just as we would any other felony

sentence. State v. Owens, 1st Dist. Hamilton No. C-170413, 2018-Ohio-1853, ¶ 5. An

appellate court “may modify or vacate a felony sentence only if we clearly and

convincingly find that the record does not support the trial court’s findings under

relevant statutes or that the sentence is otherwise contrary to law.”         Id.;   R.C.

2953.08(G)(2).

       {¶11} R.C. 2929.18(A)(3) permits a trial court to impose fines on a defendant

convicted of a felony. The maximum amount depends on the degree of the felony. In

the present case, the trial court imposed the maximum amount for each count, for a

total of $35,000.

       {¶12} Before a court imposes financial sanctions, it is required to consider

the defendant’s present and future ability to pay. R.C. 2929.19(B)(5). There are no

specific factors the trial court must consider in its analysis, nor must it make any

specific findings. State v. Freeman, 1st Dist. Hamilton No. C-180090, 2018-Ohio-

4973, ¶ 10. As long as the record contains some indication that the court considered

the offender’s present and future ability to pay, the court's imposition of a financial

sanction is not contrary to law. Id.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} The court is also not required to hold a hearing before imposing fines.

Nevertheless, in the present case, the court did hold a hearing, during which

McCants presented evidence of his present and future inability to pay.

       {¶14} McCants first contends that the trial court erred in finding that he was

not indigent. Indigency refers to a present inability to pay. Id. at ¶ 9. McCants filed

an affidavit of indigency and testified at the hearing that he had no money, property,

or assets, and that he had been in jail since December 2015. He testified that

although he had worked prior to being arrested and had a bank account and a car, by

the time of the sentencing hearing his bank account was “depleted” and his car had

been repossessed. The presentence-investigation report (“PSI”) in this case

substantiated McCants’s testimony. The state did not present any evidence

contradicting McCants’s asserted indigence, and on appeal concedes that McCants

was indigent at the time of sentencing. Therefore, the trial court’s finding that

McCants was not indigent for purposes of R.C. 2929.18 was unsupported by the

record. We sustain McCants’s first assignment of error.

       {¶15} Thus, the central question in this case is whether the trial court

properly considered McCants’s future ability to pay the fines, remembering that

“R.C. 2929.19(B)(5) contemplates a gradual repayment of fines over a period of

time.” See State v. Delgadillo-Banuelos, 10th Dist. Franklin No. 18AP-729, 2019-

Ohio-4174, ¶ 37, citing State v. Burnett, 10th Dist. Franklin No. 08AP-304, 2008-

Ohio-5224, ¶ 9.

       {¶16} “[F]ines can be useful in dealing with serious offenses, if they are

imposed in combination with other sanctions in circumstances that indicate that

monetary deprivation will furnish some independent deterrent or correctional force.”




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Note, Fining the Indigent, 71 Colum.L.Rev. 1285 (1971). However, some

commentators believe that “a fine cannot add any corrective or deterrent force to

other penalties except where a pecuniary gain is involved.” Id. at 1285, fn. 25.

       {¶17} Being saddled with a major debt upon release from prison “can

seriously impact the capacity of defendants to reintegrate as productive members of

society: for defendants, ‘unpaid criminal justice debt . . . can impact everything from

their employment and housing opportunities, to their financial stability, to their right

to vote.’” Nicholas M. McClean, Livelihood, Ability to Pay, and the Original

Meaning of the Excessive Fines Clause, 40 Hastings Const.L.Q. 883, 886 (2013),

quoting Alicia Bannon, Mitali Nagrecha, and Rebekah Diller, Criminal Justice Debt:

A Barrier to Reentry, 13 (2010). Furthermore, “Financial penalties that push an

individual beyond a certain fundamental level of economic survival and self-

sufficiency are unnecessarily harsh and utterly counterproductive.” McClean, 40

Hastings Const.L.Q. at 890.

       {¶18} Previously, when determining a defendant’s future ability to pay, this

court has considered financial information from the PSI, education and employment

history, social security benefits, and the defendant’s potential for future employment,

including his age and any limiting medical conditions. State v. Cauthen, 1st Dist.

Hamilton No. C-130475, 2015-Ohio-272, ¶ 7; Freeman, 1st Dist. Hamilton No. C-

180090, 2018-Ohio-4973, at ¶ 13.

       {¶19} The only finding made by the trial court was that McCants was not

indigent. The trial court did not make a specific finding regarding McCants’s future

ability to pay $35,000 in fines. But, as discussed above, the court did not have to

make such a finding. See Freeman at ¶ 10. Thus, we must examine the record to




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                      OHIO FIRST DISTRICT COURT OF APPEALS



determine if the court considered McCants’s future ability to pay and whether the

record supports the trial court’s decision to fine McCants.

        {¶20} McCants points to his high blood pressure as medically limiting his

potential, but that alone falls far short of indicating limited potential for future

employment. See State v. Hale, 5th Dist. Perry No. 14-CA-00010, 2014-Ohio-4981, ¶

18 (finding that the defendant had limited potential for future employment due to his

medical conditions, which included hypertension, COPD, IBS, coronary artery

disease, sleep apnea, a stroke, seizures, and the use of an oxygen tank);        State v.

Campbell, 12th Dist. Warren No. CA2012-08-070, 2013-Ohio-3088, ¶ 9 (affirming

the trial court’s finding of no future ability to pay due in part to defendant’s medical

conditions, which included diabetes, high blood pressure, nerve damage, a torn

rotator cuff, depression, anxiety, and acid reflux).

        {¶21} In Delgadillo-Banuelos, the court held that the defendant had the

future ability to pay despite the fact that the fines totaled $35,000, and the defendant

will leave prison at the age of 52 after serving a 16-year sentence.         Delgadillo-

Banuelos, 10th Dist. Franklin No. 18AP-729, 2019-Ohio-4174, at ¶ 35-37. The court

reasoned that the defendant was in good physical health, had past employment

experience, and would be able to pay the fines gradually over a period of time. Id. at

¶ 37.

        {¶22} In State v. Blevings, 12th Dist. Warren No. CA017-12-175, 2018-Ohio-

4382, ¶ 19, the defendant was ordered to pay $2,700 in restitution. Although the

defendant will be 65 years old after serving his 15-year prison sentence, and he

argued that it will be “nearly impossible” for him to find a job, the court found that

he had the future ability to pay based on his prior work history. Id. at ¶ 19.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} In State v. Dean, 2018-Ohio-1317, 110 N.E.3d 739, ¶ 76 (2d Dist.), the

majority found that the defendant had the future ability to pay $7,000 in fines

despite the fact that he would be 60 years old upon release from prison after serving

a 26-year sentence. The majority reasoned that the defendant had worked in the

past, had provided for his family, had no financial obligations other than a $60 a

month child-support payment, was in good health, and would be able to work while

incarcerated. Id. The dissent disagreed, citing the defendant’s criminal history, his

advanced age upon release, and how the imposition of fines would affect his ability to

pay for basic living expenses upon release and successfully reenter society. Id. at ¶

85-88 (Donovan, J., dissenting). The dissent noted, “We should not ignore the

practical reality that even if working while in custody, [an inmate] cannot earn a base

pay of more than $24.00 monthly.” Id. at ¶ 85, citing Ohio Adm.Code 5120-3-08.

       {¶24} While McCants may be able to make some minimal payments towards

his fine during his 16-year prison sentence, he will be released from prison at age 58

with a significant amount of debt. According to the PSI, McCants has a GED and held

a job for two and a half years at “Brighton Mills” in “production” before he was

arrested.   Also, McCants testified that while he was working he was the “main

supporter” of his household. However, there was no evidence presented regarding

McCants’s past salary or his potential future salary.      Furthermore, there is no

information in the PSI about McCants’s income previous to his time at Brighton

Mills, his debts, or his monthly expenditures. McCants may be able to find a job

upon release and make some payments towards his fines, but of course his future

ability to pay is ultimately unknown.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} It is likely that a defendant with a lengthy criminal record, who serves

a lengthy prison sentence for a serious offense, will have a difficult time finding

employment upon release. In many cases, if the defendant can find employment, it

will not pay well. See Dallas Augustine, Working Around the Law: Navigating

Legal Barriers to Employment During Reentry, 44 Law & Soc. Inquiry 726, 740-741

(2019).

       {¶26} Nevertheless, as discussed above, courts have held that where there is

some evidence that a defendant was previously steadily employed, is not elderly, and

is in relatively good health, he will be employable when he is released from prison,

even if that prison term is lengthy.

       {¶27} Our role as a court of appeals is not to question the wisdom of a trial

court’s sentence or to substitute our judgment for that of the trial court. Our role is

to determine whether the sentence is clearly and convincingly contrary to law or

unsupported by the record. Although it did not make a specific finding on McCants’s

future ability to pay the fine, it is clear that the court considered it. After a thorough

review of the record, we cannot say that the trial court’s decision to fine McCants

$35,000 is contrary to law or unsupported by the record. Accordingly, we must

overrule McCants’s second assignment of error.

       {¶28} McCants’s first assignment of error is sustained.               His second

assignment of error is overruled, and the portion of the trial court’s judgment

imposing $35,000 in fines is affirmed.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



                                      Court Costs

       {¶29} In his third assignment of error, McCants argues that the trial court

erred in imposing court costs and appointed-attorney fees. McCants first argues that

because he is indigent, the trial court erred in assessing court costs.

       {¶30} “Costs are not punishment, but are more akin to a civil judgment for

money.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15.

Therefore, a trial court’s imposition of court costs is reviewed for an abuse of

discretion. Id. at ¶ 23.     Trial courts are required to assess court costs against

defendants, but may waive costs against an indigent defendant. (Emphasis added.)

Id. In fact, other courts have held that a trial court need not even consider the

defendant’s ability to pay when imposing court costs. State v. Hodge, 9th Dist.

Lorain No. 14CA010648, 2015-Ohio-3724, ¶ 15; State v. Veal, 2d Dist. Montgomery

No. 25253, 2013-Ohio-1577, ¶ 5.

       {¶31} It was solely within the court’s discretion whether to waive court costs

due to indigency. Despite our holding that the trial court erred in finding McCants

not to be indigent, the court was nonetheless not required to waive court costs,

especially considering McCants’s future potential to pay the court costs. The trial

court did not abuse its discretion.

                              Appointed-Attorney Fees

       {¶32} Also in his third assignment of error, McCants argues that the trial

court’s imposition of attorney fees was clearly and convincingly contrary to law

because the record showed that he proved that he lacked a present or future ability to

pay.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} R.C. 2941.51(D) provides that court-appointed attorney fees shall be

paid by the county and shall not be taxed as costs to the defendant. Nevertheless, “if

the person represented has, or reasonably may be expected to have, the means to

meet some part of the cost of the services rendered to the person, the person shall

pay the county an amount that the person reasonably can be expected to pay.” R.C.

2941.51(D).

       {¶34} At the very end of the sentencing hearing, the court imposed “[c]ourt

cost and attorney fees.” The court ended the hearing, but then brought everyone

back on the record so that it could notify McCants of his right to appeal and the

amount of fines the court was imposing. The court again stated that it was imposing

“court costs and attorney fees,” but it did not discuss the amount of attorney fees

McCants was expected to pay or his ability to pay. The court’s sentencing entry

stated, “The defendant is to pay public defender attorney fees.” (Emphasis added.)

The state interpreted this order as requiring that McCants pay the $25 “public

defender fee” as required by R.C. 120.36. However, the language used by the court

leads us to conclude that McCants was ordered to repay the county for the services

rendered by his court-appointed attorney, and not simply the $25 public-defender

fee.

       {¶35} “Most courts that have addressed the issue have stated that R.C.

2941.51(D) does not authorize the assessment of attorney fees as part of a criminal

defendant’s sentence.” State v. Reese, 1st Dist. Hamilton Nos. C-180126 and C-

180412, 2019-Ohio-3680, ¶ 29. Rather, “after the court determines the defendant’s

ability to pay, it must enter a separate civil judgment for the fees or the part that the

defendant has the ability to pay.”     Id.;   see State v. Miller, 2d Dist. Clark No.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



08CA0090, 2010-Ohio-4760, ¶ 57 (“the trial court lacks statutory authority to

impose the payment of costs of appointed counsel in a criminal prosecution as part

of the financial sanctions authorized by R.C. 2929.18. Rather, that sanction must be

prosecuted in a civil action”).

       {¶36} The sentencing court may determine the defendant’s ability to pay

appointed-counsel fees during the sentencing hearing. See State v. Riley, 11th Dist.

Portage No. 2018-P-0031, 2019-Ohio-3327, ¶ 100. R.C. 2941.51(D) does not require

that the court hold a separate hearing to determine the defendant’s ability to pay, but

“there must be a finding on the record that the offender has the ability to pay.” State

v. Teal, 2017-Ohio-7202, 95 N.E.3d 1095, ¶ 40 (6th Dist.).

       {¶37} Although not expressly decided by this court, we have indicated in past

cases that the trial court is required to make an express determination regarding the

defendant’s ability to pay appointed-attorney fees. See Reese at ¶ 30; State v.

Watkins, 96 Ohio App.3d 195, 198, 644 N.E.2d 1049 (1st Dist.1994). The issue of

whether R.C. 2941.51(D) requires an explicit finding before a defendant may be

ordered to pay appointed-attorney fees is currently before the Ohio Supreme Court.

See State v. Taylor, 154 Ohio St.3d 1421, 2018-Ohio-4495, 111 N.E.3d 19.

       {¶38} In the present case, there is no indication in the record that the trial

court considered McCants’s ability to pay the appointed-attorney fees at the

sentencing hearing. Therefore, we reverse the order requiring that McCants pay the

appointed-attorney fees, and remand this cause for the trial court to conduct a

hearing to determine McCants’s present and future ability to pay the appointed-

attorney fees. If the court determines that McCants has the ability to pay, it must

enter a separate civil judgment for the amount it determines he can pay. The third




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                      OHIO FIRST DISTRICT COURT OF APPEALS



assignment of error is overruled as to the imposition of court costs, but sustained as

to the imposition of attorney fees.

                                      Conclusion

       {¶39} McCants’s first assignment of error is sustained.                 His second

assignment of error is overruled. His third assignment of error is sustained in part

and overruled in part. The portion of the trial court’s judgment imposing attorney

fees is reversed and this cause is remanded for a hearing pursuant to this opinion.

The court’s judgment is affirmed in all other respects.

                    Judgment affirmed in part, reversed in part, and cause remanded.



ZAYAS, P.J., and MYERS, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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