State v. Taylor
| Decision Date | 20 July 2018 |
| Docket Number | No. 27700,27700 |
| Citation | 117 N.E.3d 887,2018 Ohio 2858 |
| Parties | STATE of Ohio, Plaintiff-Appellee v. Robert TAYLOR, Defendant-Appellant |
| Court | Ohio Court of Appeals |
{¶ 1} Robert Taylor pled guilty in the Montgomery County Court of Common Pleas to kidnapping and gross sexual imposition of a person less than thirteen years of age. The trial court sentenced him to five years of community control and ordered him to pay a supervision fee of $250, court-appointed counsel fees of $130, and court costs.
{¶ 2} Taylor appeals from his conviction, claiming that the trial court erred in ordering him to pay a court-appointed counsel fee. Taylor also claims that his trial counsel was ineffective by failing to request a waiver of the court-appointed counsel fee, the supervision fee, and court costs. For the following reasons, the judgment of the trial court will be affirmed in part and reversed in part, and the matter will be remanded for the filing of an amended judgment entry that omits the imposition of court-appointed counsel fees.
{¶ 3} On October 19, 2016, Taylor was indicted for one count of rape of a person less than thirteen years of age in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and one count of disseminating material that is harmful to juveniles in violation of R.C. 2907.31(A)(1), a misdemeanor of the first degree. Taylor pled not guilty to the indicted charges.
{¶ 4} On the scheduled trial date, Taylor accepted a plea bargain offered by the State, whereby Taylor agreed to plead guilty by bill of information to one count of kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first degree, and one count of gross sexual imposition of a person less than thirteen years of age in violation of R.C. 2907.05(A)(4), a felony of the third degree. In exchange for Taylor's guilty plea, the State agreed to dismiss the original charges in the indictment. As articulated at the plea hearing, the parties also agreed that Taylor would serve a full five years of community control sanctions with a no-break status, be designated a Tier II sex offender, and have no contact with the victim.1
{¶ 5} After accepting Taylor's guilty plea, the trial court ordered a presentence investigation report ("PSI") and scheduled the matter for sentencing. At the sentencing hearing, and in conformity with the plea agreement, the trial court sentenced Taylor to five years of community control. The trial court also designated Taylor a Tier II sex offender and ordered him to have no contact with the victim. In addition, the trial court ordered Taylor to pay a $130 court-appointed counsel fee, a $250 supervision fee, and court costs, which were later calculated to be $1,138. The court-appointed counsel fee was not imposed as a financial sanction or as a court cost, but as a separate financial obligation.
{¶ 6} Taylor appeals from his conviction, raising two assignments of error related to the monetary portions of his sentence.
{¶ 7} In his first assignment of error, Taylor claims that the trial court "erred in ordering [him] to pay court-appointed counsel fees." Taylor contends that the $130 court-appointed counsel fee imposed by the trial court should be vacated, because the trial court failed to notify him of the fee at the sentencing hearing and failed to consider his ability to pay the fee before it was imposed.
{¶ 8} At the outset, a trial court's order to pay court-appointed counsel fees is distinguishable from both court costs and financial sanctions, which are also distinguishable from each other.
{¶ 9} Pursuant to R.C. 2947.23, a trial court is required to impose the costs of prosecution against all convicted defendants and to render a judgment against the defendant for such costs. State v. Shirk , 2d Dist. Clark No. 2015-CA-49, 2016-Ohio-7692, 2016 WL 6672962, ¶ 8. This is true regardless of whether the defendant is deemed indigent. Id. The court has jurisdiction at sentencing or anytime thereafter to waive, suspend, or modify the payment of the costs. R.C. 2947.23(C). Once costs are ordered and a judgment for them imposed, a defendant has the burden of objecting and seeking modification of the payment. In other words, costs are paid by the defendant unless evidence shows and the court finds that he or she is unable to pay.
{¶ 10} Under R.C. 2929.18, a court may order a felony offender to pay, as part of the sentence, a financial sanction, such as restitution or a fine. Before imposing financial sanctions under R.C. 2929.18, the trial court is required to consider the defendant's present and future ability to pay. R.C. 2929.19(B)(5). R.C. 2929.19(B)(5)"establishes no particular factors for the court to take into consideration, nor is a hearing necessary before making this determination. * * * Moreover, although it is preferable, a court imposing financial sanctions need not expressly state on the record that it considered an offender's ability to pay." State v. Philbeck , 2d Dist. Montgomery Nos. 26466 and 26467, 2015-Ohio-3375, 2015 WL 4992348, ¶ 27. "The record should, however, contain ‘evidence that the trial court considered the offender's present and future ability to pay before imposing the sanction of restitution.’ " State v. Culver , 160 Ohio App.3d 172, 2005-Ohio-1359, 826 N.E.2d 367, ¶ 57 (2d Dist.), quoting State v. Robinson , 3d Dist. Hancock No. 5-04-12, 2004-Ohio-5346, 2004 WL 2260101, ¶ 17.
{¶ 11} Court-appointed counsel fees and expenses approved by a court are not court costs or a financial sanction, and they are not directly enforceable as a criminal sanction. R.C. 2941.51(A) ; State v. Springs , 2015-Ohio-5016, 53 N.E.3d 804, ¶ 9 (2d Dist.). R.C. 2941.51(D) specifically provides that court-appointed counsel fees "shall not be taxed as part of the costs and shall be paid by the county."
{¶ 12} Nevertheless, "if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay." R.C. 2941.51(D). Therefore, "a defendant may be required to repay court-appointed counsel fees, but only to the extent deemed reasonable if the defendant has a present or future ability to pay." Shirk, 2d Dist. Clark No. 2015-CA-49, 2016-Ohio-7692, at ¶ 8.
{¶ 13} It is not the defendant's burden to show that he has the means to pay court-appointed counsel fees. Absent a contrary determination by the court, the mandate of the statute is that appointed counsel's fees are paid by the county. Stated simply, counsel's fees are paid by the county unless evidence shows that he or she is able to pay.
{¶ 14} To properly impose court-appointed counsel fees, the trial court must (1) consider the defendant's ability-to-pay and the amount thereof, and (2) notify the defendant of the imposition of court-appointed counsel fees at sentencing. Shirk at ¶ 9 ; Springs at ¶ 10. "[A] trial court errs when it orders a defendant to pay court-appointed counsel fees without notifying the defendant of that requirement at sentencing and determining the defendant's ability to pay those fees." (Citation omitted.) State v. Mitchell , 2d Dist. Clark No. 2014-CA-108, 2016-Ohio-1422, 2016 WL 1291704, ¶ 24.
{¶ 15} In this case, the record establishes that the trial court properly notified Taylor of his obligation to pay the court-appointed counsel fees at the sentencing hearing and included the order to pay the fee in the sentencing entry. However, the trial court did not expressly state at the sentencing hearing that it found Taylor had the ability to pay the imposed court-appointed counsel fees.
{¶ 16} The State urges this court to infer that the trial court determined Taylor had the ability to pay the fee from the trial court's review of the PSI, which contains information regarding Taylor's monthly income, employment history, and health.
{¶ 17} Several appellate districts have held that the trial court must make an "affirmative determination on the record" that the defendant has, or reasonably may be expected to have, the means to pay all or some part of the cost of the legal services rendered to him. E.g., Galion v. Martin , 3d Dist. Crawford No. 3-91-6, 1991 WL 261835, *5 (Dec. 12, 1991) ; State v. Watkins , 96 Ohio App.3d 195, 198, 644 N.E.2d 1049 (1st Dist.1994) ( Galion ); State v. Dahms , 6th Dist. Sandusky No. S-11-028, 2012-Ohio-3181, 2012 WL 2866670, ¶ 29 ; State v. McGee , 7th Dist. Jefferson No. 02-JE-39, 2003-Ohio-2239, 2003 WL 21000919, ¶ 8 ; State v. Drew , 8th Dist. Cuyahoga No. 83563, 2004-Ohio-3609, 2004 WL 1532180, ¶ 9 ; State v. Dunaway , 12th Dist. Butler No. CA2001-12-280, 2003-Ohio-1062, 2003 WL 928070, ¶ 39. However, what satisfies the trial court's duty to make an "affirmative determination on the record" varies among the districts.
{¶ 18} For example, the Twelfth District Court of Appeals has held that "a trial court complies with its duty to make an ‘affirmative determination on the record’ under R.C. 2941.51(D) when the record indicates that the court has considered a PSI containing the defendant's financial and employment information." E.g., State v. Christman , 12th Dist. Preble Nos. CA2009-03-007 and CA2009-03-008, 2009-Ohio-6555, 2009 WL 4810318, ¶ 39, citing State v. Lane , 12th Dist. Butler No. CA2002-03-069, 2003-Ohio-1246, 2003 WL 1193807, ¶ 23. In so holding, the Twelfth District noted that the trial court's duty to make an affirmative determination on the record under R.C. 2941.51(D) is similar to the trial court's duty to consider the offender's present and future ability to pay financial sanctions in accordance with R.C. 2929.19(B)(5). Christman at ¶ 39.
{¶ 19} In contrast, the Sixth and Third District Courts of Appeals, for example, have required the trial court to make a specific finding regarding a defendant's ability...
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