[Cite as State v. McQuillen, 2012-Ohio-4953.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 12 COA 014
CHAD E. MCQUILLEN

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 11 CRI 116


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         October 17, 2012


APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

RAMONA FRANCESCONI ROGERS                       ERIN N. POPLAR
ASHLAND COUNTY PROSECUTOR                       ERIN POPLAR LAW LLC
PAUL T. LANGE                                   1636 Eagle Way
ASSISTANT PROSECUTOR                            Ashland, Ohio 44805
110 Cottage Street
Ashland, Ohio 44805
Ashland County, Case No. 12 COA 014                                                  2

Wise, J.

      {¶1}   Appellant, Chad E. McQuillen, appeals his conviction and sentence from

the Ashland County Court of Common Pleas. Appellant was indicted on one count of

Possession of Cocaine, a felony of the fifth degree in violation of R.C. 2925.11(A) and

one count of Illegal Assembly or Possession of Chemicals for Manufacture of Drugs, a

felony of the second degree, in violation of R.C. 2925.041(A).

      {¶2}   Appellant entered pleas of guilty to Possession of Cocaine and Illegal

Assembly or Possession of Chemicals for Manufacture of Drugs, however, the second

count was reduced to a felony of the third degree. Appellant was sentenced to six

months in prison for Possession of Cocaine and twenty four months in prison for Illegal

Assembly ordered to be served concurrently. The trial court also imposed fines of

$5,500.00. A timely notice of appeal was filed.

      {¶3}   Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), rehearing den., 388 U.S. 924 (1967),

indicating that the within appeal was wholly frivolous and setting forth two proposed

Assignments of Error:

      {¶4}   “I.    PAYMENT OF FINE AND COURT COSTS:             THE TRIAL COURT

ERRED AND WHEN IT IMPOSED THE MANDATORY MINIMUM FINE ON

APPELLANT PURSUANT TO OHIO REVISED CODE SECTIONS 2925.041 AND

2929.18 BECAUSE HE HAD ALREADY BEEN FOUND TO BE INDIGENT AND HAD

COMPLETED AND FILED AN AFFIDAVIT OF INDIGENCY PRIOR TO SENTENCING.”

      {¶5}   “II.   IN THE ALTERNATIVE, APPELLANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
Ashland County, Case No. 12 COA 014                                                      3


AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE HIS COURT-

APPOINTED COUNSEL DID NOT REQUEST THAT THE COURT REFRAIN FROM

IMPOSING A MANDATORY FINE ON APPELLANT PURSUANT TO OHIO REVISED

CODE SECTIONS 2925.041 AND 2929.18.”

         {¶6}   In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.

         {¶7}   Counsel in this matter has followed the procedure in Anders v. California,

386 U.S. 738 (1967). We find the appeal to be wholly frivolous and grant counsel’s

motion to withdraw. For the reasons which follow, we affirm the judgment of the trial

court.

                                                 I., II.

         {¶8}   In his first Assignment of Error, Appellant argues the trial court erred in

imposing fines and court costs. In his second proposed Assignment of Error, Appellant
Ashland County, Case No. 12 COA 014                                                        4


argues he received ineffective assistance of trial counsel because trial counsel failed to

object to the fine and costs. Because these Assignments of Error are related, we will

address them together.

       {¶9}   The decision to impose or waive a fine rests within the sound discretion of

the court and will not be reversed on appeal absent an abuse of that discretion. State v.

Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998). “The term ‘abuse of discretion’

connotes more than an error of law or of judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980).

       {¶10} As this Court explained in State v. Perry, 5th Dist. No. 2004-CA-00066,

2005-Ohio-85:

       {¶11} “ ‘[T]here 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.

Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318, 2000-Ohio-1942. Although a court

may hold a hearing under R.C. 2929.18(E) ‘to determine whether the offender is able to

pay the [financial] sanction or is likely in the future to be able to pay it,’ a court is not

required to do so. State v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001,

unreported (‘although the trial court must consider the offender's ability to pay, it need

not hold a separate hearing on that issue’). ‘All that R.C. 2929.19(B)(6) requires is that

the trial court consider the offender's present and future ability to pay.’ State v.

Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-1062, at 36; Martin, 140 Ohio

App.3d at 33, 746 N.E.2d 642” Id. at *4-5, 746 N.E.2d 642. See also State v.

Thompson, 5th Dist. No. 06-CA-62, 2008-Ohio-435, at ¶ 19. While it would be
Ashland County, Case No. 12 COA 014                                                      5


preferable for the trial court to expressly state on the record that it has considered a

defendant's present and future ability to pay a fine, it is not required. State v. Parker,

2nd Dist. No. 03CA0017, 2004-Ohio-1313, ¶ 42, citing State v. Slater, 4th Dist. No. 01

CA2806, 2002-Ohio-5343. “The court's consideration of that issue may be inferred from

the record under appropriate circumstances.” Id.

         {¶12} The record in this case reveals the trial court made a specific finding that

Appellant has a future ability to pay the fines and costs. For this reason, we cannot say

the record demonstrates the trial court abused its discretion in imposing fines and court

costs. Further, because the trial court did not abuse its discretion in imposing the fine

and costs, it was not error for counsel to fail to object to the imposition of the fine and

costs.

         {¶13} Appellant’s proposed Assignments of Error are overruled.

         {¶14} For these reasons, after independently reviewing the record, we agree

with counsel's conclusion that no arguably meritorious claims exist upon which to base

an appeal. Hence, we find the appeal to be wholly frivolous under Anders, and grant

counsel's request to withdraw.
Ashland County, Case No. 12 COA 014                                            6


      {¶15} For the foregoing reasons, the judgment of the Court of Common Pleas,

Ashland County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.



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                                        ___________________________________

                                                          JUDGES
JWW/d 1003
Ashland County, Case No. 12 COA 014                                           7


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CHAD E. MCQUILLEN                         :
                                          :
       Defendant-Appellant                :         Case No. 12 COA 014




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the court of Common Pleas of Ashland County, Ohio, is affirmed.

       Costs assessed to appellant.




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                                                             JUDGES
