State v. Mock

[Cite as State v. Mock, 187 Ohio App.3d 599, 2010-Ohio-2747.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

THE STATE OF OHIO, ) CASE NO. 08 MA 94
)
APPELLEE, )
)
v. ) OPINION
)
MOCK, )
)
APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 07 CR 469

JUDGMENT: Affirmed in part.
Reversed in part.
Remanded.

APPEARANCES:

Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M. Rivera,
Assistant Prosecuting Attorney, for appellee.

Mark I. Verkhlin, for appellant.

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: June 9, 2010
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WAITE, Judge.

{¶1} Appellant, Billy Mock, appeals his conviction for one count of felonious

assault, in violation of R.C. 2903.11(D)(1)(a), a felony of the second degree. Appellant

asserts that he received ineffective assistance of counsel because his trial counsel

failed to file a motion to dismiss based on the speedy-trial statute. He argues that the

trial court committed prejudicial error when selecting one of the jurors. He contends that

his conviction is against the manifest weight of the evidence and that his five-year

sentence is void because the trial court incorrectly instructed him on the issue of

postrelease control. Finally, appellant argues that the trial court failed to consider his

present and future ability to pay before imposing a fine of $5,000.

{¶2} Appellant was indicted on April 26, 2007, on two counts of felonious

assault. He was arrested on March 27, 2007, and remained in jail on the charges

pending in this case until he was sentenced. In count one, appellant was charged with

knowingly causing serious physical harm to his girlfriend, Stacy McFarland. In count

two, he was charged with knowingly causing serious physical harm to McFarland with a

deadly weapon, a fireplace poker. The charges stemmed from attacks that occurred

during a five-day period in late March 2007.

{¶3} On May 8, 2007, appellant entered a plea of not guilty to both counts of

the indictment and was appointed counsel. The case was set for a jury trial on June 6,

2007. On June 6, 2007, a joint motion to continue the trial date was sustained by the

trial court, and the trial was reset for July 18, 2007.
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{¶4} On June 29, 2007, the trial court sustained appellant’s motion for a

transcript of the preliminary hearing to be prepared at the state’s expense. The

judgment entry did not provide a deadline for the filing of the transcript. On August 13,

2007, the court reporter who was to prepare the transcript filed an invoice in the amount

of $195.

{¶5} The trial court conducted a pretrial hearing on November 20, 2007. At the

hearing, appellant’s trial counsel made an oral motion to continue the hearing, which

was sustained in a judgment entry filed November 28, 2007.

{¶6} Appellant concedes in his brief that all of the time that elapsed from

November 28, 2007, to the March 28, 2008 trial date resulted from events that tolled the

speedy-trial clock. Appellant insists, though, that between August 14, 2007, and

November 27, 2007, the speedy-trial clock expired. However, no motion to dismiss the

case based on the alleged speedy-trial violation was filed.

{¶7} At trial, McFarland testified that she was held captive by appellant during

the five days in question and that she was beaten by him several times. She testified

that the doors in appellant’s home were barricaded and that she was able to escape

only when he opened the front door to get his mail. According to McFarland, she was

assisted by neighbors who saw appellant tackle her in the front yard after she fled from

the residence.

{¶8} Although police detectives confirmed that several doors in the home were

barricaded, McFarland conceded that she and appellant went to H&R Block to file her

tax return, picked up take-out food for dinner, and went to a check-cashing
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establishment during the period that she was allegedly held captive. McFarland

explained that she was not a captive at the beginning of the five-day period and that she

could not pinpoint the precise moment when she was no longer able to leave, due to the

fact that the five days felt more like one long day.

{¶9} Appellant’s brother, Bobby Joe Mock, who was incarcerated at the time of

trial for breaking and entering and theft, and was facing additional criminal charges for

burglary, testified at the trial. Bobby Joe admitted that he was present on several

occasions at his brother’s apartment during the five-day period in question and claimed

that it was he who assaulted McFarland. McFarland testified that Bobby Joe refused to

help her when he was at the residence, but that he never hit her.

{¶10} Appellant took the stand and denied that he assaulted McFarland.

According to appellant, he and McFarland were in the midst of a five-day crack binge

when McFarland was assaulted. McFarland denied taking drugs and initially denied

that she ever saw appellant take drugs, but later conceded that she had seen appellant

smoke marijuana in the past. However, McFarland testified at the preliminary hearing

that she knew appellant was addicted to crack cocaine and that she had seen him use

it.

{¶11} Despite Bobby Joe’s testimony, appellant was convicted on one count of

felonious assault. He was acquitted of the felonious-assault charge involving the

fireplace poker. Appellant was sentenced on April 25, 2008. This timely appeal

followed.

FIRST ASSIGNMENT OF ERROR
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{¶12} “Defendant-Appellant, Billy Mock was denied effective assistance of

counsel pursuant to the test in State v. Madrigal, 87 Ohio St.3d 378, 388-389, 2000-

Ohio-448, 721 N.E.2d 52 [sic], and Strickland v. Washington (1984), 466 U.S. 668, 687-

688, 104 S.Ct. 2052, 80 L.Ed.2d 674.”

{¶13} Appellant asserts that he received ineffective assistance of counsel

because his trial counsel failed to file a motion to dismiss based on speedy-trial

grounds. To prevail on a claim of ineffective assistance of counsel, appellant must not

only show that counsel’s performance was deficient, but must also show the resulting

prejudice. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674. “Deficient performance” means performance falling below an objective standard of

reasonable representation. “Prejudice,” in this context, means a reasonable probability

that but for counsel’s errors, the result of the proceeding would have been different. Id.

at 687-688, 694.

{¶14} Appellant argues that the speedy-trial clock expired after the invoice of the

court reporter was filed, but prior to the continuance granted on November 28, 2007.

His argument is based on our decision in State v. Miller, 7th Dist. No. 07 MA 215, 2008-

Ohio-3085, ¶25, in which we stated, “The record reveals that an invoice for the

preliminary hearing transcript was filed on September 11, 2007. Time remained tolled

until that date.”

{¶15} We have consistently held that a defendant’s failure to file a motion to

dismiss on speedy-trial grounds constitutes a waiver of the issue on appeal. State v.

Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, 858 N.E.2d 1249, ¶21; State v.
 -6-

Trummer (1996), 114 Ohio App.3d 456, 470-471, 683 N.E.2d 392. “Even if an

appearance of a violation of R.C. 2945.71 appears on the face of the record, the failure

to raise the question of such a violation denies the appellee the opportunity to establish

that tolling of the statute occurred.” Turner at ¶22. Consequently, “[t]he proper

approach is the filing of a postconviction-relief petition alleging ineffective assistance of

counsel.” Id. It is not so apparent to us that a violation occurred, based on the record

before us. Therefore, appellant’s first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶16} “The Trial Court committed reversible error when it took a potential juror

from the venire instead of using an alternate juror to replace a juror who failed to

appear, as is required by Crim.R. 24(G)(1) and R.C. 2945.29.”

{¶17} Crim.R. 24(G)(1) reads, “Alternate jurors in the order in which they are

called shall replace jurors who, prior to the time the jury retires to consider its verdict,

become or are found to be unable or disqualified to perform their duties.”

{¶18} R.C. 2945.29, captioned “Jurors becoming unable to perform duties,”

reads as follows:

{¶19} “If, before the conclusion of the trial, a juror becomes sick, or for other

reason is unable to perform his duty, the court may order him to be discharged. In that

case, if alternate jurors have been selected, one of them shall be designated to take the

place of the juror so discharged. If, after all alternate jurors have been made regular

jurors, a juror becomes too incapacitated to perform his duty, and has been discharged
 -7-

by the court, a new juror may be sworn and the trial begin anew, or the jury may be

discharged and a new jury then or thereafter impaneled.”

{¶20} In this case, the trial court engaged in an unorthodox jury selection

process that the trial court itself characterized as “an experiment.” Rather than using

the prospective jurors’ names, each of the prospective jurors was assigned a number.

After some introductory comments, the bailiff called 14 prospective juror numbers and

asked those individuals to come forward. Then, counsel conducted voir dire of the

entire venire.

{¶21} After the completion of voir dire, the state asserted a challenge for cause

to prospective juror No. 191. Prospective juror No. 191 stated during voir dire that he

had had a “bad experience” with Detective Sergeant Darryl Martin, a Youngstown Police

Department detective on the state’s witness list. Prospective juror No. 191 explained

that he was visiting a friend at his apartment, when Martin arrived and searched the

apartment. Martin arrested prospective juror No. 191 for drug possession when he

discovered drugs in the apartment.

{¶22} Prospective juror No. 191 explained that the matter was ultimately

resolved in his favor, but he agreed with defense counsel that the matter “left a bitter

taste in [his] mouth” and that the experience was something that you never “really get

over.” Prospective juror No. 191 acknowledged that a defendant is innocent until

proven guilty and stated that he would take his role as a juror very seriously because he

“sat in the seat as a defendant.”
 -8-

{¶23} Although the trial court acknowledged that prospective juror No. 191 was

“probably more pro-defense,” the trial court agreed with defense counsel that

prospective juror No. 191 did not say that he could not be fair and impartial. As a

consequence, the trial court overruled the state’s challenge for cause to prospective

juror No. 191.

{¶24} Later, as a result of a series of peremptory challenges, prospective juror

No. 191 was moved into the alternate-juror position. The state attempted to raise a

peremptory challenge to juror No. 191, but the state had already waived its sole

alternate-juror challenge on the first alternate juror selected, who was then removed by

the defense.

{¶25} Prior to administering the oath, the trial court discovered that one of the

prospective jurors, prospective juror No. 132, was missing. After some investigation,

the bailiff informed the trial court that prospective juror No. 132 had failed to appear that

morning.

{¶26} In addition, the trial court believed that prospective juror No. 124 had been

seated twice. It appears from a review of the transcript that prospective juror No. 103

was originally slotted in the juror No. 7 position when the bailiff called the first 14

prospective jurors, but was then excluded from the panel. There is no way to determine

whether prospective juror No. 103 was present in the courtroom, as many of the

responses by the prospective jurors are attributed to “prospective juror” rather than the

prospective juror’s name or number.
 -9-

{¶27} As a consequence, prospective juror No. 124, originally in the 13th

position on the bailiff’s initial list, was the first to be moved onto the jury, into the juror

No. 8 position (which the trial court referred to as the juror No. 7 position), but due to the

omission of prospective juror No. 103 from the final list, prospective juror No. 124 was

also in the juror No. 12 position.

{¶28} Rather than seating prospective juror No. 191 on the jury panel, the trial

court seated the next two prospective jurors from the venire and then administered the

oath. Following the administration of the oath, appellant’s trial counsel stated, “Your

Honor, I would just suggest that I think it would have in terms of the defense’s

perspective, it would have been more appropriate to take the alternate and put that

person in the seat that was vacated by the lack of the number. That’s the only --.” The

trial court responded, “Seeing who the alternate was and that we were -- I’m sure [the

state] would have done it differently had it been his selection. He stays the alternate.”

{¶29} The trial court recessed for the day, but the following morning, appellant’s

trial counsel raised the issue again, stating:

{¶30} “I would like to clarify an objection I was attempting to make, and I don’t

know if I used the word objection. The court in attempting to rectify a problem yesterday

where one of the venile [sic] apparently didn’t show up and none of us knew that, so

when we came back out from preemptory challenges there ended up being a vacancy

in, I think it was in seat number one. The court rather than taking the alternate juror and

placing him in the seat of the first position the court took somebody from the entire

venire and placed her in the position of as not only an alternate juror but as a juror. The
 -10-

defense objects to that and believes that it would have been fair and constitutionally

sound to take the alternate juror and place him in the position. So the defense asks that

that alternate juror be placed in the position to actually hear this case rather than the

juror who was placed in that position from the general jury venire.”

{¶31} The trial court, realizing that jury selection would be an issue on appeal,

provided the following explanation of his jury selection process:

{¶32} “I started a new system where we -- this is basically for the Court of

Appeals that where the attorneys interview the whole venire at one time. These juror

numbers can make it a little more confusing. This is the first time we’ve done the whole

venire and we were in the chambers doing the strikes and challenges. We went over

together and I always ask counsel if I had the right number and the right seat and we all

agreed and apparently we missed it. We had one of him [sic] down twice. And there

was a problem we had a guy in seat number one who wasn’t here because we had

gone by the numbers. So at that time we had the alternate already picked. Everybody

used the strikes, everybody used their peremptories we were done. So the court I

believe was fair since if the glitches hadn’t been in there and we knew who we were

dealing with each counsel would have had an option to strike these jurors and the

alternate and I’m pretty sure it was one of the ones that would have been stricken by the

state of Ohio. But that didn’t happen because there were two of the state’s. So when I

went to rectify those I kept the panel we had selected and went to the next in line out of

the whole venire panel and put those individuals in the two spots, and juror seat number

one and the juror seated I believe is number 10 because number 124 was in seven and
 -11-

ten. So that’s my recollection. The record will reflect it anyway. So I took people from -

- I went to the next one past the alternate for seat number one, then again the next one

past the alternate for seat number ten to make those replacements because in the

court’s mind that’s what was fair and that’s the way it’s going to stay.”

{¶33} This assignment of error raises a novel issue of law, as it appears that no

Ohio appellate court has been asked to determine the propriety or effect of seating an

alternate juror prior to seating the 11th and 12th jurors in a criminal case.

{¶34} The state contends that the trial court did not violate the statute or the

criminal rule because they govern the treatment of jurors after the commencement of

trial, not prospective jurors prior to the administration of the oath. The state also

underscores the fact that the trial court seated the jurors and administered the oath prior

to any objection by appellant’s trial counsel. Furthermore, the state cites our decision in

State v. Trummer, 114 Ohio App.3d 456, 683 N.E.2d 392, for the rule that “[t]he correct

method for correcting any irregularities prior to the jury being sworn is a motion to

dismiss the entire jury panel.” Id. at 461.

{¶35} However, the Trummer court went on to acknowledge that “the selection

and qualification of jurors are largely under the control of the trial court and, unless an

abuse of discretion is clearly shown with respect to rulings thereon, they will not

constitute ground for reversal.” Id., citing Berk v. Matthews (1990), 53 Ohio St.3d 161,

559 N.E.2d 1301. “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
 -12-

unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404

N.E.2d 144.

{¶36} First, the state correctly argues that the Ohio statute and criminal rule at

issue in this case were not violated, because the jury had not been sworn prior to the

trial court’s failure to place prospective juror No. 191 in the juror No. 1 position. Second,

while the jury-selection process in this case was poorly executed, appellant does not

contend that he can demonstrate that he suffered any prejudice based on the record

before us. Third, to the extent that appellant might show prejudice based upon

evidence outside the record, his second assignment of error, like his first assignment,

must be argued in a postconviction action. Accordingly, appellant’s second assignment

of error is overruled.

THIRD ASSIGNMENT OF ERROR

{¶37} “The Trial Court committed reversible error when, after a jury trial, it found

Defendant-Appellant, Billy Mock guilty of Felonious Assault in violation of R.C.

2903.11(D)(1)(a) beyond a reasonable doubt, when such conviction was against the

manifest weight of the evidence.”

{¶38} A weight-of-the-evidence challenge concerns “ ‘the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they

shall find the greater amount of credible evidence sustains the issue which is to be

established before them. Weight is not a question of mathematics, but depends on its
 -13-

effect in inducing belief.’ ” (Emphasis omitted.) State v. Thompkins (1997), 78 Ohio

St.3d 380, 387, 678 N.E.2d 541, quoting Black’s Law Dictionary (6th Ed.1990) 1594.

{¶39} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a “thirteenth juror.” Thompkins at 387. The court

reviews the entire record, weighs the evidence and all reasonable inferences, and

considers the credibility of witnesses. Id. Additionally, the court determines, “ ‘whether

in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered.’ ” Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485

N.E.2d 717. The reversal of a conviction based upon manifest-weight grounds should

occur only in the most “ ‘exceptional case in which the evidence weighs heavily against

the conviction.’ ” Thompkins at 387, quoting Martin at 175.

{¶40} Moreover, “ ‘it is inappropriate for a reviewing court to interfere with factual

findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror

could not find the testimony of the witness to be credible.’ ” State v. Brown, 10th Dist.

No. 02AP-11, 2002-Ohio-5345, ¶10, citing State v. Long (Feb. 6, 1997), 10th Dist. No.

96APA04-511, 1997 WL 52911. In a manifest-weight analysis, the appellate court must

continue to be mindful that the weight of the evidence and the credibility of the

witnesses are issues primarily for the trier of fact to determine. State v. DeHass (1967),

10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212.

{¶41} The testimony of a single witness, if believed by the trier of fact, is

sufficient to support a conviction. State v. Cunningham, 105 Ohio St.3d 197, 2004-
 -14-

Ohio-7007, 824 N.E.2d 504, at ¶51-57. In the case sub judice, the jury credited the

testimony of the victim rather than the testimony of appellant and his brother. Appellant

has failed to cite any inconsistencies in the victim’s testimony to demonstrate that her

testimony was unworthy of credence. Consequently, we must defer to the jury’s

findings, and appellant’s third assignment of error is overruled.

FOURTH ASSIGNMENT OF ERROR

{¶42} “The Trial Court committed reversible error when it incorrectly advised

Appellant of the nature of his post release control, when the correct period of post

release control is a mandatory period of three years for a felony of the second degree

that is not a sex offense pursuant to R.C. 2967.28(B)(2), making Appellant’s sentence

void.”

{¶43} The state concedes in its appellate brief and at oral argument in this

matter that the trial court erred when it instructed appellant on the matter of

postconviction release. Appellant was subject to a mandatory three-year term of

postrelease control based on his conviction on a second-degree felony charge. See

R.C. 2967.28(B)(2). However, at the sentencing hearing, the trial court stated that

appellant would be subject to a mandatory five-year term of postrelease control. Then,

in the judgment entry, the trial court, “recommend[ed]” that appellant “be subject to a

period of Post-Release Control (PRC) of up to three (3) years as determined by the

Parole Board.” (Boldface sic.) Even though the trial court ultimately correctly identified

the duration of postrelease control in the judgment entry, the trial court mischaracterized

postrelease control as discretionary rather than mandatory.
 -15-

{¶44} R.C. 2929.14(F)(1) governs prison terms. This section provides that if the

trial court imposes a prison term for a felony, the sentence is to include a requirement

that the offender is subject to a period of postrelease control after the offender’s release

from imprisonment. Additionally, R.C. 2929.19(B)(3) requires that the sentencing court

notify the offender that he will be supervised under R.C. 2967.28 after he is released

from prison.

{¶45} The Supreme Court of Ohio has held that these statutes mandate a trial

court to give notice of postrelease control both at the sentencing hearing and by

incorporating it into the sentencing entry. State v. Jordan, 104 Ohio St.3d 21, 2004-

Ohio-6085, 817 N.E.2d 864, ¶11. In State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-

1197, 884 N.E.2d 568, the Ohio Supreme Court held that “in cases in which a defendant

is convicted of, or pleads guilty to, an offense for which postrelease control is required

but not properly included in the sentence, the sentence is void, and the state is entitled

to a new sentencing hearing to have postrelease control imposed on the defendant

unless the defendant has completed his sentence.” Id. at ¶6.

{¶46} However, for criminal sentences imposed on or after July 11, 2006, trial

courts must apply the corrective procedure set forth in R.C. 2929.191. State v.

Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the

syllabus. The Ohio Supreme Court’s holding in Singleton involved its interpretation of

two statutes, which were amended pursuant to H.B. 137. The Ohio legislature

characterized H.B. 137 as “an emergency measure necessary for the immediate

preservation of the public peace, health, and safety,” which were “crucially needed to
 -16-

clarify the law to protect the residents of this state from the consequences that might

result if the state is forced to release without supervision offenders who have been

convicted of serious offenses and imprisoned, solely because the offenders were not

provided notice of the fact that the law always requires their supervision upon release

from prison.” Id. at ¶27, quoting Section 7 of H.B. 137, L-1971 to L-1972.

{¶47} R.C. 2929.14(F)(1) reads as follows:

{¶48} “If a court imposes a prison term * * * for a felony of the second degree, * *

* it shall include in the sentence a requirement that the offender be subject to a period of

post-release control after the offender’s release from imprisonment, in accordance with

that division. If a court imposes a sentence including a prison term of a type described

in this division on or after July 11, 2006, the failure of a court to include a post-release

control requirement in the sentence pursuant to this division does not negate, limit, or

otherwise affect the mandatory period of post-release control that is required for the

offender under division (B) of section 2967.28 of the Revised Code.”

{¶49} R.C. 2929.191(A) reads as follows:

{¶50} “If, prior to the effective date of this section, a court imposed a sentence

including a prison term of a type described in division (B)(3)(c) of section 2929.19 of the

Revised Code [first- or second-degree felony] and failed to notify the offender pursuant

to that division that the offender will be supervised under section 2967.28 of the Revised

Code after the offender leaves prison or to include a statement to that effect in the

judgment of conviction entered on the journal or in the sentence pursuant to division

(F)(1) of section 2929.14 of the Revised Code, at any time before the offender is
 -17-

released from imprisonment under that term and at a hearing conducted in accordance

with division (C) of this section, the court may prepare and issue a correction to the

judgment of conviction that includes in the judgment of conviction the statement that the

offender will be supervised under section 2967.28 of the Revised Code after the

offender leaves prison.”

{¶51} R.C. 2929.191(C) reads:

{¶52} “On and after the effective date of this section, a court that wishes to

prepare and issue a correction to a judgment of conviction of a type described in

division (A)(1) or (B)(1) of this section shall not issue the correction until after the court

has conducted a hearing in accordance with this division. Before a court holds a

hearing pursuant to this division, the court shall provide notice of the date, time, place,

and purpose of the hearing to the offender who is the subject of the hearing, the

prosecuting attorney of the county, and the department of rehabilitation and correction.

The offender has the right to be physically present at the hearing, except that, upon the

court’s own motion or the motion of the offender or the prosecuting attorney, the court

may permit the offender to appear at the hearing by video conferencing equipment if

available and compatible. An appearance by video conferencing equipment pursuant to

this division has the same force and effect as if the offender were physically present at

the hearing. At the hearing, the offender and the prosecuting attorney may make a

statement as to whether the court should issue a correction to the judgment of

conviction.”
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{¶53} In Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, the

Ohio Supreme Court recognized that “[a]lthough [Ohio Supreme Court] caselaw has

previously characterized a sentence lacking postrelease control as a nullity, H.B. 137

demonstrates a legislative intent to apply the sentence-correction mechanism of R.C.

2929.191 to sentences imposed after the act’s effective date.” Id. at ¶27. Thus, even

though R.C. 2929.191(A) speaks solely to retroactive application of the statute, that is,

to sentences imposed prior to the effective date of the statute, the Ohio Supreme Court

has concluded that the statute should be prospectively applied to sentences imposed

after July 7, 2006, based upon the express legislative intent of the General Assembly.

Id. at ¶31.

{¶54} Therefore, appellant’s fourth assignment of error is sustained in part and

overruled in part, and this matter is remanded to the trial court to comply with R.C.

2929.191.

FIFTH ASSIGNMENT OF ERROR

{¶55} “The Trial Court committed reversible error when it sentenced Appellant to

pay a fine of five-thousand and 00/100 ($5,000.00) without suspending the fine and

failing to consider Appellant’s ability to pay the fine pursuant to R.C. 2929.19(B)(6).”

{¶56} “A trial court has broad discretion when imposing a financial sanction upon

an offender and a reviewing court should not interfere with its decision unless the trial

court abused that discretion by failing to consider the statutory sentencing factors.”

State v. Weyand, 7th Dist. No. 07-CO-40, 2008-Ohio-6360, ¶7, citing State v. Keylor,

7th Dist. No. 02 MO 12, 2003-Ohio-3491, ¶9. An abuse of discretion connotes more
 -19-

than an error of law or judgment; it implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16

O.O.3d 169, 404 N.E.2d 144.

{¶57} R.C. 2925.11 directs a trial court to impose all mandatory fines specified

for a particular crime, unless the court determines that the defendant is indigent. R.C.

2929.18(B)(1) states:

{¶58} “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 and if the court

determines the offender is an indigent person and is unable to pay the mandatory fine

described in this division, the court shall not impose the mandatory fine upon the

offender.”

{¶59} Before imposing a financial sanction under R.C. 2929.18, the court must

consider the offender’s present and future ability to pay the amount of the sanction or

fine. See R.C. 2929.19(B)(6). As to the trial court’s findings, “there 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 (2000), 140 Ohio App.3d 326,

338, 747 N.E.2d 318.

{¶60} Ohio law does not prohibit a court from imposing a fine on an indigent

defendant. State v. Ramos, 8th Dist. No. 92357, 2009-Ohio-3064. Nor does the filing

of an affidavit of indigency by a defendant automatically entitle a defendant to a waiver

of a mandatory fine. State v. Gipson (1998), 80 Ohio St.3d 626, 687 N.E.2d 750.

Therefore, imposition of the mandatory fine is required unless (1) the offender’s affidavit
 -20-

is filed prior to sentencing and (2) the trial court finds that the offender is an indigent

person and is unable to pay the mandatory fines. Id. at 634; R.C. 2929.18(B)(1).

{¶61} After the trial court imposed the fine in this case, appellant’s trial counsel

inquired whether the fine would be suspended due to the fact that appellant is indigent.

The trial court answered, “No. You are indigent, you can’t pay the fine, then he can’t

pay the fine. They can’t do anything to him for it, but it’s still out there. Okay.” With the

trial court’s statement, the hearing was concluded.

{¶62} Appellant did not object to imposition of a fine, and, therefore, he has

waived that issue on appeal. Keylor, 2003-Ohio-3491, at ¶ 12. Assuming that appellant

had not waived the issue, he never filed an affidavit of indigency. The Ohio Supreme

Court has held that a fine is mandatory if the defendant does not file such an affidavit

prior to sentencing. Gipson, 80 Ohio St.3d 626, 687 N.E.2d 750. Finally, a

determination that a criminal defendant is indigent for the purposes of receiving counsel

does not prohibit the trial court from imposing a fine. Weyand, 2008-Ohio-6360, at ¶16

(“the ability to pay a fine over a period of time is not equivalent to the ability to pay legal

counsel a retainer fee at the onset of criminal proceedings”).

{¶63} Accordingly, appellant’s fifth assignment of error is overruled.

{¶64} In summary, appellant’s first, second, third, and fifth assignments of error

are overruled, and his conviction is affirmed. His fourth assignment of error, based

upon the trial court’s failure to notify him of postrelease control, is sustained in part and

overruled in part. This matter is remanded to the trial court in order to comply with R.C.

2929.191.
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Judgment accordingly.

VUKOVICH, P.J., and DONOFRIO, J., concur.

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