{¶ 16} On March 6, 2008, Bryant Loving resolved six separate indictments with guilty pleas and a jointly recommended sentence of five and one-half years of incarceration. His guilt and his term of incarceration are not in dispute on appeal. The only issue before us is the imposition of fines totaling $22,500 upon a person who was indigent at the time of sentencing and who was to be incarcerated for almost five more years after receiving jail-time credit toward the five and one-half year sentence. *Page 429
{¶ 17} Three specific errors have been submitted for our consideration. They are set forth above.
{¶ 18} The first assignment of error speculates about a situation not presented by Loving's case. Loving received his agreed sentence of five and one-half years. The fines were stayed until after his term of incarceration is completed. Nothing in the record indicates that he will receive any additional incarceration if he does not or cannot pay the fines. I agree that we should overrule this assignment of error solely because the issue is not ripe for judicial resolution.
{¶ 19} The second assignment of error correctly states that Loving had filed with the court the appropriate affidavits of indigency as to each case. Nothing in the record indicated that he had a present ability to pay the fines. The state of Ohio, through an assistant prosecuting attorney, indicated that it likes to have these fines collected because the money goes directly to underwrite the costs of law enforcement, especially the costs of prosecuting drug cases. The state of Ohio made no suggestion that Loving would have any ability to pay a fine in the knowable future.
{¶ 20} On appeal, the state of Ohio argues that Loving "failed to meet his burden of showing that he would be unable to pay the fines." The state of Ohio also asserts that an abuse-of-discretion standard applies and that the trial court did not abuse its discretion in assessing the fines.
{¶ 21} Nothing in the record indicates that Loving has any current assets. Nothing in the record indicates that he will acquire any assets while he serves his five and one-half years of incarceration. He will be 32 years old when his term of incarceration ends. He will have been unemployed for over five years. He will present any future employer with a history of multiple felony convictions, a history of multiple misdemeanor convictions, and a history of drug addiction. His employment prospects are not good. His ability to pay for his basic needs is in serious question. His inability to pay for his basic needs and somehow pay $22,500 in fines is clear.
{¶ 22} I believe that the trial court erred in assessing fines totaling $22,500 on a person with no ability to pay. The fines were a violation of the pertinent statute, so I see no need to address the constitutional issues. See R.C. 2929.19(B)(6), which requires the trial court to consider the offender's present ability to pay before imposing a financial sanction. Here, Loving had no present ability to pay, and no evidence demonstrated that he would have a future ability to pay.
{¶ 23} The second assignment of error should be sustained.
{¶ 24} In light of what I believe the correct ruling should be on the second assignment of error, the third assignment of error should be moot. Although *Page 430 making the payment of fines totaling $22,500 is even less likely during the three years a former inmate is serving his post-release control, since the assessment of the fines was an error in the first place, the time for payment of the fines is immaterial.