[Cite as State v. Owens, 2018-Ohio-1853.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170413
TRIAL NO. B-1603208
Plaintiff-Appellee, :
vs. : O P I N I O N.
BRANDON OWENS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: May 11, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William F. Oswall, Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Brandon Owens appeals the mandatory fines imposed following his
guilty pleas to felony drug-trafficking offenses. Because the trial court erred by
requiring Owens to submit five years of tax returns as a prerequisite to finding him
indigent, we vacate the imposition of the fines and remand the matter for the court to
conduct a limited resentencing in accordance with R.C. 2929.18(B)(1).
Background Facts
{¶2} In exchange for the state’s dismissal of one count of trafficking in
heroin, Owens entered guilty pleas to two counts of trafficking in heroin, one count
of aggravated trafficking in a Schedule II controlled substance, and one count of
having a weapon while under a disability. The parties agreed that Owens would be
sentenced to a total of four and a half years in prison and would forfeit two firearms.
In addition to imposing the agreed sentence, the trial court imposed mandatory fines
for the drug offenses.
{¶3} At the sentencing hearing, defense counsel informed the trial court
that she had an affidavit of indigency to submit with respect to the fines. The court
stated that it would accept counsel’s submission of the affidavit, but that it would not
make a finding of indigency “without the last five years[’] tax returns[.]” Defense
counsel requested a hearing on the matter, and the court stated, “Sure. Once you
have all the documents, you can file for a hearing.” Defense counsel informed the
court that Owens had no tax returns to submit. The court responded, “I’m not
making a finding of indigency based on that.” Counsel did not file the affidavit of
indigency.
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OHIO FIRST DISTRICT COURT OF APPEALS
Mandatory Fines for Drug-Trafficking Offenses
{¶4} In his first assignment of error, Owens argues that the trial court erred
by imposing the mandatory fines. He contends that the court improperly demanded
evidence of his tax returns before it would consider whether he was indigent and
unable to pay the mandatory fines.
{¶5} Under the standard of review set forth in R.C. 2953.08(G)(2), this
court may modify or vacate a felony sentence only if we clearly and convincingly find
that the record does not support the trial court’s findings under relevant statutes or
that the sentence is otherwise contrary to law. See State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; State v. White, 2013-Ohio-4225, 997
N.E.2d 629, ¶ 11 (1st Dist.).
{¶6} R.C. 2925.03(D)(1) and 2929.18(B)(1) required the trial court to
impose a mandatory fine for each of Owens’s drug-trafficking offenses. Owens could
have avoided imposition of the mandatory fines only if he had alleged in an affidavit
filed with the court prior to sentencing that he was indigent and unable to pay the
mandatory fines, and the court determined that he was an indigent person and
unable to pay the fines. See R.C. 2929.18(B)(1); State v. Gipson, 80 Ohio St.3d 626,
631, 687 N.E.2d 750 (1998). An affidavit of indigency is “filed” for purposes of R.C.
2929.18(B)(1) if it is delivered to the clerk of court for filing and is time-stamped
prior to the filing of the trial court’s sentencing entry. Gipson at syllabus.
{¶7} If a defendant fails to file a timely affidavit of indigency, a trial court
cannot avoid imposing a mandatory fine. Id. at 633. Consequently, if an affidavit of
indigency is not timely filed, the trial court’s failure to impose a mandatory fine
renders void the part of the sentence waiving the fine. State v. Moore, 135 Ohio
St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 1. Resentencing of the defendant is
limited to the imposition of the mandatory fine. Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} We first must consider, then, whether Owens waived his right to
challenge the trial court’s imposition of mandatory fines where he did not file an
affidavit alleging that he was indigent and unable to pay the mandatory fines. The
Supreme Court of Ohio’s recent decision in State v. Beasley, ___ Ohio St.3d ___,
2018-Ohio-16, ___ N.E.3d ___, is instructive.
{¶9} In this court’s opinion in State v. Beasley, 2016-Ohio-1603, 49 N.E.3d
378 (1st Dist.), the defendant argued that the trial court erred by implementing a
blanket policy of refusing to accept no-contest pleas. Id. at ¶ 5. We agreed that it
was error for the court to have such a policy, but we held that the error was not
preserved for appeal. Id. at ¶ 12. We concluded that the appellant should have
entered a no-contest plea and then have had the trial court refuse to accept the plea
on the record. Id. at ¶ 13. Judge (now Justice) Fischer dissented, noting that defense
counsel had stated twice on the record that his client wished to plead no contest to
preserve her right to appeal the denial of her motion to suppress. Id. at ¶ 15 (Fischer,
P.J., dissenting).
{¶10} In reversing this court’s decision, the Supreme Court first noted Judge
Fischer’s conclusion that there was “no valid reason to require Beasley to enter a no-
contest plea on the record when it is clear that doing so would have been futile.”
Beasley, 2018-Ohio-16, at ¶ 8, quoting Beasley, 2016-Ohio-1603, 49 N.E.3d 378, at ¶
19 (Fischer, P.J., dissenting). The Supreme Court held that the defendant’s guilty
plea did not amount to a waiver of her appellate rights where the trial court adhered
to an arbitrary policy of not accepting no-contest pleas. Id. at ¶ 16. The court held
that there was no reason to require the defendant to enter a no-contest plea to
preserve the trial court’s error for appeal after the trial court acknowledged on the
record that it would have summarily rejected that plea. Id. The court remanded the
matter to the trial court to allow the defendant to enter a new plea. Id. at ¶ 17.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} In this case, Owens could only avoid the imposition of the mandatory
fines if he timely filed an affidavit alleging that he was indigent and unable to pay
them, and the court ultimately found him indigent. See R.C. 2929.18(B)(1). This he
failed to do. However, the trial court explicitly stated on the record that it would
refuse to find Owens indigent with respect to the mandatory fines without the
additional submission of five years’ tax returns, which he did not have. As in
Beasley, the record shows that the court would have “summarily rejected” any
finding of indigency without tax returns. Thus, the court’s insistence on submission
of the tax returns made clear that the filing of the affidavit of indigency would be of
no consequence and a futile act. Therefore, on the particular facts of this case, we
conclude that Owens did not waive his right to assign as error the imposition of the
mandatory fines when he failed to file his affidavit of indigency (which the court
stated it accepted submission of). Consequently, we hold that the court’s error was
adequately preserved for appeal.
{¶12} We next examine whether it was error for the trial court to impose the
mandatory fines when it required Owens to submit five years of tax returns as a
prerequisite to a finding of indigency. While evidence of a defendant’s tax returns
may certainly be a legitimate factor in a trial court’s consideration of a defendant’s
present and future ability to pay mandatory fines, the court may not require such
evidence before it will consider the ability to pay.
{¶13} Therefore, we hold that the trial court’s imposition of mandatory fines
was contrary to law where the court required as a prerequisite to a finding of
indigency the submission of five years of tax returns. And we determine that under
the particular facts of this case the error was preserved for appeal because it would
have been futile under these circumstances to require Owens to file his affidavit of
indigency.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} We sustain the first assignment of error. Our resolution of the first
assignment of error renders moot Owens’s second assignment of error alleging the
ineffective assistance of counsel for failing to file an affidavit of indigency. We vacate
the imposition of mandatory fines and remand this matter for the court to conduct a
limited resentencing on the issue of mandatory fines in accordance with R.C.
2929.18(B)(1).
Judgment accordingly.
CUNNINGHAM, P.J., and DETERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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