[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