State v. Ficklin , 2013 Ohio 3002 ( 2013 )

[Cite as State v. Ficklin, 2013-Ohio-3002.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99191
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES A. FICKLIN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-562108
BEFORE: McCormack, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: July 11, 2013
ATTORNEY FOR APPELLANT
Steven L. Bradley
Marein & Bradley
222 Leader Building
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Patrick J. Lavelle
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Charles A. Ficklin appeals from a judgment of Cuyahoga County Court of
Common Pleas Court that sentenced him to a prison term of six and half years and
imposed a mandatory fine of $10,000 for his conviction of drug trafficking and carrying a
concealed weapon. On appeal, he challenges the court’s imposition of the mandatory
fine. After a careful consideration of the applicable law and review of the record, we
affirm the trial court’s judgment.
Substantive Facts and Procedural History
{¶2} Ficklin pleaded guilty, under a plea agreement, to (1) drug trafficking
involving cocaine, a felony of the first degree, with forfeiture specifications and (2)
carrying a concealed weapon, a felony of the fourth degree, also with forfeiture
specifications. The parties agreed to six years of prison time for drug trafficking and a
consecutive six-month prison term for the offense of carrying a concealed weapon. The
court found him guilty of these offenses and imposed the prison term as agreed to by the
parties.
{¶3} The drug trafficking conviction carries a mandatory fine under R.C.
2925.03(D)(1), which, in the case of a defendant convicted of a first-degree felony
offense, is a minimum of $10,000 and a maximum of $20,000. Under the plea, there was
no agreement as to the amount of fine to be imposed.
{¶4} After a hearing on this issue, the trial court imposed a fine of $10,000.
Ficklin now appeals, assigning one error for our review. He claims the trial court abused
its discretion in imposing the fine.
{¶5} As an initial matter, a trial court has broad discretion when imposing financial
sanctions upon a defendant, and an appellate court will review the trial court’s decision for
an abuse of discretion only. State v. Schneider, 8th Dist. No. 96953, 2012-Ohio-1740, ¶
9, citing State v. Weyand, 7th Dist. No. 07-CO-40, 2008-Ohio-6360, ¶ 7. An abuse of
discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part of the
trial court. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
Statutes Governing Mandatory Fines
{¶6} Several statutes governing the imposition of mandatory fines are pertinent in
this case.
{¶7} R.C. 2929.18, which governs financial sanctions in general, provides that a
trial court may impose a maximum of $20,000 on a defendant convicted of a first-degree
felony. R.C. 2929.18(A)(3). The statute goes on to require the trial court to impose on a
defendant convicted of drug offenses of the first, second, or third degree, a mandatory
minimum fine of one half of the maximum fine. R.C. 2929.18(B)(1).
{¶8} Furthermore, R.C. 2929.18(B)(1) prescribes the manner in which the court
shall proceed in waiving the mandatory fine for an indigent offender. It provides that 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 * * *, the court
shall not impose the mandatory fine upon the offender.” (Emphasis added.) R.C.
2929.18(B)(1).
{¶9} R.C. 2925.03, the statute that specifically governs drug trafficking offenses,
similarly requires the trial court to impose a mandatory fine on a defendant convicted of
drug trafficking that is a first-, second-, or third-degree felony. The statute refers to the
above-cited R.C. 2929.18(B)(1), stating that “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.) R.C. 2925.03(D)(1).
{¶10} Under R.C. 2929.18(B)(1), in order to avoid an imposition of the mandatory
fine, the defendant must (1) submit an affidavit of indigency to the court prior to
sentencing, and (2) the court must find that “the offender is an indigent person and is
unable to pay the mandatory fined.” State v. Gipson, 80 Ohio St. 3d 626, 634,
1998-Ohio-659, 687 N.E.2d 750.
{¶11} The exact meaning of “is an indigent person and is unable to pay” has been
interpreted by the Supreme Court of Ohio in Gipson, a case also involving a mandatory
fine imposed on a defendant convicted of a drug offense. In Gipson, the trial court
suspended the defendant’s jail term, placed him on probation, and imposed a mandatory
fine. The trial court imposed the fine despite the defendant’s affidavit of indigency
alleging a present inability to pay, after it found the defendant to be an able-bodied young
man with some employment potential. The defendant claimed the trial court improperly
considered his future ability to pay, arguing it was a defendant’s status at the time of
sentencing that was determinative of whether a fine should be imposed. The Supreme
Court of Ohio disagreed and affirmed the trial court.
{¶12} The Supreme Court of Ohio interpreted R.C. 2929.18(B)(1), which requires a
trial court’s determination that “the offender is indigent and is unable to pay,” and stated
the following:
[F]or purposes * * * 2929.18(B)(1), a trial court’s determination whether an
offender is indigent and is unable to pay a mandatory fine can (and should)
encompass future ability to pay. If the General Assembly had intended
otherwise, the statutes would have been written to permit a waiver of the
mandatory fines based solely on a defendant’s present state of indigency,
and would not have also required trial courts to consider the additional
question whether the offender is “unable to pay.”
(Emphasis added.) Id. at 636.
{¶13} From this analysis, it appears that “indigency” refers to a present financial
ability and “is unable to pay” encompasses a future ability to pay as well. In any event, it
is clear from the court’s analysis that, when determining whether a defendant is “indigent
and is unable to pay,” the trial court is to consider both present and future ability to pay.
{¶14} Indeed, R.C. 2929.19, the statute governing sentencing hearings in general,
actually references, specifically, a future ability to pay. That statute states: “[b]efore
imposing a financial sanction under section 2929.18 of the Revised Code [the statute
governing financial sanctions] * * *, the court shall consider the offender’s present and
future ability to pay the amount of the sanction or fine.” R.C. 2929.19(B)(5).
{¶15} Consistent with Gipson, this court has always required the trial court to
consider both a present and future ability to pay the amount of the financial sanction
before imposing it. See Schneider, 8th Dist. No. 96953, 2012-Ohio-1740, at ¶ 10.
{¶16} Also consistent with Gipson, 80 Ohio St. 3d 626, 687 N.E.2d 750, this court
has always interpreted R.C. 2929.18(B)(1) as not precluding a trial court from imposing a
fine on an indigent defendant. Schneider at ¶ 14; State v. Brantley, 8th Dist. No. 94508,
2010-Ohio-5760, ¶ 13; State v. Ramos, 8th Dist. No. 92357, 2009-Ohio-3064, ¶ 7; State v.
Roark, 8th Dist. No. 84992, 2005-Ohio-1980, ¶ 14.
{¶17} Finally, we note that, when considering a defendant’s ability to pay, “[t]here
are no express factors that must be taken into consideration nor specific findings that must
be made by the court on the record, but there must be some evidence in the record that the
trial court considered the defendant’s ability to pay.” Schneider at ¶ 10, quoting State v.
Jacobs, 189 Ohio App. 3d 283, 2010-Ohio-4010, 938 N.E.2d 79, ¶ 11 (8th Dist).
{¶18} Ficklin argues a trial court should only consider a defendant’s present ability
to pay, i.e., the ability to pay at the time of sentencing. He argues the use of the present
tense in R.C. 2929.18(B)(1) — “is an indigent person and is unable to pay” — means only
the defendant’s present ability can be considered. He claims there is a distinction
between R.C. 2929.18(B)(1), and 2929.19(B)(5), which requires the court to consider “the
offender’s present and future ability to pay.” He claims that, because the drug trafficking
statute specifically refers to R.C. 2929.18(B)(1), but not R.C. 2929.19(B)(5), a trial court
cannot consider a defendant’s future ability to pay. He contends the trial court should
have considered only his present ability to pay, and, because he filed an affidavit of
indigency alleging a present inability to pay, the trial abused its discretion in imposing the
mandatory fine.
{¶19} The alleged contrast between the two statutes is a distinction without a
difference. Pursuant to Gipson, 80 Ohio St. 3d 626, 687 N.E.2d 750, and the case law
from this court, the language “is an indigent person and is unable to pay” from R.C.
2929.18(B)(1) encompasses an inquiry into both a defendant’s present and future ability to
pay. This is exactly what the trial court did in this case.
{¶20} Here, after convicting Ficklin of drug trafficking, a first-degree felony, the
court imposed a minimum mandatory fine of $10,000 pursuant to R.C. 2929.18.
{¶21} Ficklin owned six rental properties. He argued at the initial sentencing
hearing that the rental properties were all encumbered by substantial mortgages and, as a
result, he had no meaningful net worth. The trial court pointed out that the affidavit of
indigency he had filed did not address whether the rental properties had equity despite the
encumbrances. To allow Ficklin to file additional documents to support his claim of
inability to pay, the court continued the hearing.
{¶22} At the subsequent hearing, the state submitted Ficklin’s income tax returns
for 2009, 2010, and 2011. Ficklin submitted appraisals showing the six rental properties
he owned had an aggregate appraised value of $271,000, but they had total outstanding
mortgages of $317,000. He also submitted documentation showing he owed Huntington
National Bank $121,000 under several lines of credit, bringing his total debt to $170,000.
In addition, he argued that he would have no income for the next six years due to his
incarceration.
{¶23} The court noted that Ficklin was making payments toward his debts in the
amount of $1,000, as recent as the month before the hearing. The court also remarked
that some of the real estate at issue was titled to a family member, who could be holding
the title on behalf of Ficklin and receiving rental income. The court in addition pointed
out some of the real estate he owned was not under water and an improvement in the
market condition could create equity in the properties. The court finally noted that the
income stream generated by the rental properties made it hard for Ficklin to be deemed
indigent. For these reasons, the court imposed a mandatory fine of $10,000.
{¶24} The record reflects the court properly considered both Ficklin’s present and
future ability to pay, taking into account the fact he will be incarcerated for the next six
years but also the fact that his rental properties would produce an income stream and may
produce equity if the market condition improves. Even if, for argument’s sake, the trial
court could only consider Ficklin’s ability to pay at the time of sentencing, the record
reflects that the court pointed out that Ficklin was able to make a $1,000 payment toward
his debts as recent as the month preceding the sentencing. The trial court was clearly
unpersuaded by his claim of a present inability to pay.
{¶25} An offender has the affirmative duty to demonstrate that he or she “is
indigent and is unable to pay” the mandatory fine. Gipson, 80 Ohio St. 3d at 635, 687
N.E.2d 750. Based on our review of the record, we find Ficklin fails to demonstrate he is
“indigent and unable to pay,” and therefore, the trial court properly imposed a mandatory
fine after finding him guilty of drug trafficking. The assignment of error lacks merit.
{¶26} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR