[Cite as State v. Weaver, 2013-Ohio-2417.]


                                       COURT OF APPEALS
                                     HOLMES COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Appellee                                  Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 12 CA 11
DANNEL H. WEAVER

        Appellant                                 OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 11 CR 033


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        June 10, 2013



APPEARANCES:

For Appellee                                  For Appellant

No Appearance                                 DAVID M. HUNTER
                                              244 West Main Street
                                              Loudonville, Ohio 44842
Holmes County, Case No. 12 CA 11                                                       2

Wise, P. J.

      {¶1}    Appellant, Dannel H. Weaver, appeals an entry from the trial court denying

his motion “for stay of fines and court costs.” Appellant entered a guilty plea to one

count of Illegal Assembly or Possession of Chemicals for the Manufacture of

Methamphetamine, a felony of the third degree, in violation of Revised Code

2925.041(A) and one count of Possession of Methamphetamine, a felony of the fifth

degree, in violation of Revised Code 2925.11(A).

      {¶2}    Appellant was sentenced to a total term of three years in prison. The trial

court also imposed a fine of $5,000.00. Appellant did not appeal his conviction or

sentence. Subsequently, Appellant filed a motion to stay the fines and court costs. The

trial court denied the motion, and this Court permitted a delayed appeal.

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

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

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

Assignment of Error. Appellant was given an opportunity to file his own brief raising any

additional assignments of error, however, no pro se brief was filed.

                                               I.

      {¶4}    “WHETHER THE COURT ERRED IN OVERRULING DEFENDANT’S

MOTION TO VACATE FINES AND COSTS?”

      {¶5}    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
Holmes County, Case No. 12 CA 11                                                         3

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.

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

(1967), 386 U.S. 738. 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.

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

overruling his motion to stay fines and costs.

         {¶8}   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 (1998), 80 Ohio St.3d 626, 634, 687 N.E.2d 750. “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 (1980), 62 Ohio St.2d 151,

157, 404 N.E.2d 144.

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

2005-Ohio-85:
Holmes County, Case No. 12 CA 11                                                           4


         {¶10} “ ‘[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

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.

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

Appellant had 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 a fine and court

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

and costs, it was not error for the court to refuse to stay the imposition of the fines and

costs.
Holmes County, Case No. 12 CA 11                                                        5


        {¶12} The Second District Court of Appeals has held a trial court lacks authority

to stay the imposition of fines and costs once imposed. See State v. Wilson 2012 WL

1264519, 3 (Ohio App. 2 Dist.). They explain a trial court may waive fines and costs

upon a finding of indigence, but there is no statutory authority for staying the fines and

costs. Id. at ¶24.

        {¶13} Appellant has provided no caselaw or statutory authority for the right to

have fines and costs stayed.

        {¶14} For these reasons, Appellant’s proposed Assignment of Error is overruled.

        {¶15} 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, grant counsel's request

to withdraw, and affirm the judgment of the Court of Common Pleas, Holmes County,

Ohio.



By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.
                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                JUDGES
JWW/d 0521
Holmes County, Case No. 12 CA 11                                                      6


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




STATE OF OHIO                               :
                                            :
       Appellee                             :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
DANNEL H. WEAVER                            :
                                            :
       Appellant                            :         Case No. 12 CA 11




       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, grant counsel's request to withdraw, and

affirm the judgment of the Court of Common Pleas, Holmes County, Ohio.

       Costs assessed to Appellant.




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                                                               JUDGES
