State v. Freeman , 2018 Ohio 4973 ( 2018 )

[Cite as State v. Freeman, 2018-Ohio-4973.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180090
TRIAL NO. B-1606425-C
Plaintiff-Appellee, :
O P I N I O N.
vs. :
MICHAEL FREEMAN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 12, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua Thompson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Michael Freeman has appealed from the trial court’s order that he pay
a mandatory fine of $10,000 for his trafficking-in-heroin conviction. We find no
merit to his assignment of error, and we affirm the judgment of the trial court.
Factual Background
{¶2} Freeman pleaded guilty to aggravated trafficking in drugs, a felony of
the fourth degree, and trafficking in heroin, a felony of the first degree. In exchange,
the state dismissed charges of trafficking in heroin, possession of heroin, aggravated
trafficking in drugs, aggravated possession of drugs, and permitting drug abuse, and
a major-drug-offender specification to the trafficking-in-heroin offense. The parties
agreed that Freeman would be sentenced to a total of three years in prison, and
Freeman waived a presentence investigation report.
{¶3} During the plea colloquy, Freeman told the court that he was 42 years
old, had finished the tenth grade, could read and write, had obtained his GED, was
scheduled to be released from parole that week, had been gainfully employed while
on parole, and had passed all of his drug screenings. The trial court found him guilty
and proceeded to sentencing.
{¶4} In mitigation, Freeman’s counsel informed the judge that he had been
working with Freeman and expected him to turn his life around after his release from
prison. Freeman also submitted an affidavit of indigency, requesting the court to
waive the mandatory fine. The affidavit stated that Freeman had been incarcerated
for 234 days and was without funds to pay a fine, that he had no assets or property
sufficient to offer as security for a fine, and that he was indigent. The trial court
asked Freeman if he had any additional evidence to present with respect to the
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OHIO FIRST DISTRICT COURT OF APPEALS
waiver of the mandatory fine, and Freeman responded, “No.” The trial court
imposed the agreed sentence and a mandatory fine of $10,000.
{¶5} On appeal, Freeman contends that the trial court erred in imposing the
mandatory fine. Specifically, he argues that the trial court failed to conduct a
hearing, and that the record does not support the imposition of the fine because
Freeman established that he was indigent and lacked the present and future ability to
pay the fine.
Standard of Review
{¶6} R.C. 2953.08 governs felony-sentencing appeals. When reviewing
felony sentences, an appellate court “may vacate or modify a felony sentence on
appeal only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” R.C. 2953.08(G)(2); State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23. Appellate courts no longer apply
the abuse-of-discretion standard in sentencing challenges. See id. at ¶ 10.
Accordingly, we review the imposition of a mandatory fine to determine whether it is
clearly and convincingly unsupported by the record or otherwise contrary to law. See
State v. Stidhum, 1st Dist. Hamilton No. C-170319, 2018-Ohio-4616, ¶ 69; State v.
Owens, 1st Dist. Hamilton No. C-170413, 2018-Ohio-1853, ¶ 5.
The Mandatory Fine
{¶7} Pursuant to R.C. 2929.18(B)(1), the trial court is required to impose a
mandatory fine when the offender commits certain drug-related felonies. For a first-
degree felony offense for trafficking in drugs in violation of R.C. 2925.03(A)(1), the
trial court was authorized to impose a mandatory fine of up to $20,000, and
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OHIO FIRST DISTRICT COURT OF APPEALS
obligated to impose a fine of at least $10,000, one-half of the statutory maximum.
R.C. 2929.18(A)(3)(a) and 2929.18(B)(1).
{¶8} However, the statute also prohibits the court from imposing the
mandatory fine “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
the court finds that “the offender is an indigent person and is unable to pay the
mandatory fine described in this division.” R.C. 2929.18(B)(1). Before imposing a
fine, “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).
{¶9} Under the statute, “the burden is upon the offender to affirmatively
demonstrate that he or she is indigent and is unable to pay the mandatory fine.”
State v. Gipson, 80 Ohio St.3d 626, 635, 687 N.E.2d 750 (1998). The filing of an
affidavit of indigency alone does not automatically entitle the offender to a waiver of
the fine. See id. at 636 (determining that the defendant’s indigency at the time of
sentencing does not preclude the trial court from imposing a fine upon the
defendant); State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-Ohio-3002, ¶ 13
(recognizing that “ ‘indigency’ refers to a present financial ability and ‘is unable to
pay’ encompasses a future ability to pay as well”). The trial court must consider both
the offender’s present and future ability to pay the fine. R.C. 2929.19(B)(5).
{¶10} A trial court is not required to hold a hearing, consider express factors,
or make specific findings. See State v. Hodge, 2d Dist. Montgomery No. 23964,
2011-Ohio-633, ¶ 55. As long as the record contains some indication that the trial
court considered the offender’s present and future ability to pay the fine, the court’s
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OHIO FIRST DISTRICT COURT OF APPEALS
imposition of a financial sanction is not contrary to law. State v. Collier, 184 Ohio
App.3d 247, 2009-Ohio-4652, 920 N.E.2d 416, ¶ 11 (10th Dist.).
{¶11} During the plea hearing, the trial court questioned Freeman before
accepting his guilty plea. The trial court learned that Freeman had been gainfully
employed while on parole, could read and write, had obtained his GED, had not
tested positive for drugs while on parole, and was 42 years old.
{¶12} Freeman contends that the court erred by refusing to conduct an
indigency hearing, and that the record does not support the imposition of a fine.
Freeman submitted an affidavit of indigency, which established his current financial
situation. After accepting the affidavit of indigency, the court gave Freeman the
opportunity to present additional evidence concerning his request for a waiver, but
Freeman declined. The trial court did not refuse to conduct an indigency hearing,
rather Freeman failed to present any additional evidence regarding his future ability
to pay a fine. See Gipson, 80 Ohio St.3d at 635, 687 N.E.2d 750. And, Freeman’s
counsel represented that he expected Freeman to turn his life around after his
release from prison.
{¶13} Following a thorough review of the record, we conclude that the trial
court considered Freeman’s present and future ability to pay the fine. Although
Freeman was currently indigent, the record supports a finding that he had been
gainfully employed throughout his parole, would be employable upon his release
from prison in less than two years, and would have the future ability to pay the fine.
There are no facts in the record indicating that Freeman would be unemployable
upon his release, such as a health or medical condition that would preclude him from
future employment. See, e.g., State v. Hale, 5th Dist. Perry No. 14-CA-00010, 2014-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-4981, ¶ 18-20 (finding that a reasonable probability existed that the trial court
would have waived the mandatory fine if counsel had filed an affidavit of indigency
due to defendant’s medical conditions, including the use of an oxygen tank,
hypertension, COPD, IBS, coronary artery disease, obstructive sleep apnea, a stroke,
leg pains, and seizures); State v. Campbell, 12th Dist. Warren No. CA2012-08-070,
2013-Ohio-3088, ¶ 9-10 (concluding that the trial court did not err in waiving the
mandatory fine because defendant was indigent and would not be able to work
because of his diabetes, high blood pressure, nerve damage, torn rotator cuff,
depression, anxiety, acid reflux and need for drug treatment). Based on the
information before this court, we conclude there was ample evidence upon which the
trial court could make a determination that Freeman was not unable to pay the fine,
and we overrule his sole assignment of error.
Conclusion
{¶14} Having overruled Freeman’s sole assignment of error, we affirm the
judgment of the trial court.
Judgment affirmed.
MOCK, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry this date.
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