[Cite as State v. Johnson, 2017-Ohio-577.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 16-COA-010
ERIC M. JOHNSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of
Common Pleas, Case No. 15-CRI-189
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 13, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL MATTHEW J. MALONE
Ashland County Prosecutor Law Offices of Matthew J. Malone, LLC
110 Cottage Street, Third Floor 10 East Main Street
Ashland, Ohio 44805 Ashland, Ohio 44805
JOSHUA T. ASPIN
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 16-COA-010 2
Hoffman, J.
{¶1} Defendant-appellant Eric M. Johnson appeals the April 13, 2016 Judgment
Entry – Sentencing entered by the Ashland County Court of Common Pleas, which denied
his motion to vacate mandatory fines and ordered him to pay the maximum fine of
$7,500.00. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On November 6, 2015, Detective Brian Evans of the Ashland Police
Department filed a Complaint in the Ashland County Court of Common Pleas, charging
Appellant with one count of aggravated possession of drugs, in violation of R.C.
2925.11(A), a felony of the second degree. Following a bond hearing, the trial court
released Appellant on his own recognizance. Appellant filed an Affidavit of Indigency.
The trial court found Appellant “presently indigent for purposes of appointment of counsel”
and appointed Attorney R. Rolf Whitney to represent him. November 12, 2015 Judgment
Entry at 2.
{¶3} The trial court bound the case over to the Ashland County Grand Jury for
further consideration. Thereafter, on December 10, 2015, the Ashland County Grand
Jury indicted Appellant on two counts of aggravated trafficking in drugs, in violation of
R.C. 2925.03(A)(2), felonies of the second degree; one count of aggravated possession
of drugs, in violation of R.C. 2925.11(A), a felony of the second degree; and one count of
possessing criminal tools, in violation of R.C. 2923.24(A), a felony of the first degree.
1 A statement of the facts underlying Appellant’s conviction is unnecessary for our
disposition of this appeal.
Ashland County, Case No. 16-COA-010 3
Each count carried an attendant forfeiture specification pursuant to R.C. 2981.04 and
R.C. 2941.1417.
{¶4} Appellant entered a plea of not guilty to the Indictment at his arraignment
on December 14, 2015. The trial court scheduled the matter for jury trial on March 22,
2016.
{¶5} On March 7, 2016, Appellant appeared before the trial court, withdrew his
former plea of not guilty, and entered a plea of guilty to one count of aggravated trafficking
in drugs and the attendant forfeiture specification. Upon the state’s motion, the trial court
dismissed the remaining three counts of the Indictment. The trial court ordered a pre-
sentence investigation and scheduled a sentencing hearing for April 11, 2016. Prior to
sentencing, Appellant filed a motion to waive the mandatory fine. Therein, Appellant
stated he would be unable to pay the fine as a result of his indigent status at the time of
sentencing. Appellant attached an Affidavit of Financial Inability to Pay Fine and Costs
to his motion.
{¶6} The trial court sentenced Appellant to a term of imprisonment of four years.
Overruling Appellant’s motion to waive the mandatory fine, the trial court imposed the
maximum fine of $7,500. The trial court memorialized Appellant’s sentence and fine via
Judgment Entry-Sentencing filed April 13, 2016.
{¶7} It is from that judgment entry Appellant appeals, raising as his sole
assignment of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING
UPON APPELLANT A MANDATORY FINE OF $7,500.
Ashland County, Case No. 16-COA-010 4
{¶8} Appellant was convicted of aggravated trafficking in drugs, in violation of
R.C. 2925.03(A)(2). R.C. 2925.03(D)(1) provides: “If the violation of division (A) of this
section is a felony of the first, second, or third degree, the court shall impose upon the
offender the mandatory fine specified for the offense under division (B)(1) of section
2929.18 of the Revised Code unless, as specified in that division, the court determines
that the offender is indigent.” (Emphasis added).
{¶9} R.C. 2929.18, which governs financial sanctions for felony offenses, reads,
in relevant part:
For a first, second, or third degree felony violation of an provision of
R.C. Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing
court shall impose upon the offender a mandatory fine of at least one-half
of, but not more than, the maximum statutory fine amount authorized for the
level of the offense pursuant to division (A)(3) of this section, 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 described in this division,
the court shall not impose the mandatory fine upon the offender. R.C.
2929.18(B)(1).
{¶10} In State v. Gipson ( 1998), 80 Ohio St.3d 626, 634, the Ohio Supreme Court
explained a trial court must impose a mandatory fine unless the offender files an affidavit
of indigency prior to sentencing, and the trial court determines the offender is indigent
Ashland County, Case No. 16-COA-010 5
and unable to pay the mandatory fine. Id. at 634. The Gipson Court emphasized the
importance of the second requirement, noting “an offender who files an affidavit alleging
that he or she is indigent is unable to pay a mandatory fine is not automatically entitled to
a waiver of that fine”, but has the affirmative burden to establish his or her inability to pay
a fine in the future. Id. at 634-635. Therefore, in determining whether an offender is
indigent for the purpose of avoiding a mandatory fine, the trial court “may inquire into the
defendant’s ability to pay the mandatory fine in the future and is not limited to a
consideration of a defendant’s indigency at the time [the fine] was imposed.” State v.
Williams, 11th Dist Lake App. No., 2014-Ohio-65 at para. 18, citing State v. McDowell,
Portage App. No. 2001-P-0149, 2003-Ohio-5352 at para. 69. R.C. 2929.19(B)(5) requires
a trial court to consider an “offender’s present and future ability to pay the amount of the
sanction of fine.”
{¶11} During Appellant’s sentencing hearing, the trial court noted it had received
and reviewed the pre-sentence investigation report. The PSI included information
regarding Appellant’s financial situation, detailing his assets and monthly income,
specifically noting Appellant received monthly payments as part of his divorce settlement.
The PSI detailed Appellant’s future earning abilities such as his age, education, and prior
employment. Appellant had a Bachelor’s degree and a Master’s degree. Appellant taught
music in a public school. He also owned a firewood business, which he described as
“very lucrative”.
{¶12} Although Appellant filed a timely motion and the requisite affidavit, the
affidavit focused solely on Appellant’s current financial situation. Appellant did not
establish his inability to pay a fine in the future. Based upon the foregoing, we find the
Ashland County, Case No. 16-COA-010 6
trial court did not abuse its discretion in imposing the maximum mandatory fine upon
Appellant.
{¶13} Appellant’s sole assignment of error is overruled.
{¶14} The judgment of the Ashland County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur