State v. VanCamp

2016 Ohio 2980

• Court: Ohio Court of Appeals
• Decided: May 13, 2016
• Docket: WD-15-034
• Status: Published

Opinion

[Cite as State v. VanCamp, 2016-Ohio-2980.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-15-034

Appellee Trial Court No. 2013CR0557

v.

Jack VanCamp DECISION AND JUDGMENT

Appellant Decided: May 13, 2016

*****

Paul A. Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers, David T. Harold and Martha S. Schultes, Assistant Prosecuting Attorneys, for appellee.

William F. Hayes, for appellant.

YARBROUGH, J.

I. Introduction

{¶ 1} Appellant, Jack VanCamp, appeals the judgment of the Wood County Court

of Common Pleas, denying his motion to waive a mandatory fine of $7,500 arising from

his conviction for illegal assembly or possession of chemicals for the manufacture of

drugs, pursuant to R.C. 2925.041(A)(C)(2). For the following reasons, we affirm. A. Facts and Procedural Background

{¶ 2} Appellant was charged with one count of illegal assembly or possession of

chemicals for the manufacture of drugs, R.C. 2925.041(A)(C)(2), a felony of the second

degree, and one count of illegal manufacture of drugs, R.C. 2925.04(A), a felony of the

first degree. At his arraignment on December 20, 2013, appellant entered a plea of not

guilty to both counts. The court found appellant to be indigent, and he was appointed

counsel.

{¶ 3} On June 27, 2014, after several pretrial issues and negotiations with the

state, appellant withdrew his former not guilty plea and entered a plea of guilty to one

count of illegal assembly or possession of chemicals for the manufacture of drugs, R.C.

2925.041(A)(C)(2), a felony of the second degree. In exchange, the state agreed to

dismiss the remaining count. Prior to entering his plea, appellant engaged in a colloquy

with the court in which appellant was informed that as a result of the plea, appellant

would be facing a mandatory minimum prison sentence of five years, a mandatory fine of

$7,500, and a mandatory three-year term of postrelease control. Appellant acknowledged

that he understood these consequences and decided to go forward with the plea.

{¶ 4} After the guilty plea was accepted, the court went directly to sentencing.

Both appellant and the state recommended that the defendant be ordered to serve the

minimum, five-year prison term, to which the court complied. Appellant also made a

motion at that time to waive the mandatory fine of $7,500. The court denied the motion

and imposed the mandatory fine. Appellant filed an appeal, challenging the imposition of

2. the mandatory fine. However, the appeal was voluntarily dismissed with an agreement

that he would be resentenced as to the issue of the mandatory fine.

{¶ 5} Resentencing took place on March 20, 2015, at which point the court again

denied the motion and ordered the defendant to pay the mandatory fine of $7,500. The

court memorialized that decision in an order dated March 25, 2015. It is from this order

that appellant has filed his timely appeal.

B. Assignment of Error

{¶ 6} On appeal, appellant presents a sole assignment of error for our review:

I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT/APPELLANT IN FAILING TO CONSIDER THE

DEFENDANT/APPELLANT’S PRESENT AND FUTURE ABILITY TO

PAY THE $7,500 MANDATORY FINE IMPOSED BY THE COURT.

II. Analysis

{¶ 7} In his assignment of error, appellant argues that the court erred by failing to

apply appropriate standards in considering appellant’s present and future ability to pay

the $7,500 mandatory fine imposed by the court. We disagree.

{¶ 8} For certain crimes, the court must impose a mandatory fine unless the

offender is indigent and is unable to pay. R.C. 2929.18(B)(1). Before imposing a

financial sanction under R.C. 2929.18 or a fine under R.C. 2929.32, the court must

consider the offender’s present and future ability to pay the amount of the sanction or

fine. R.C. 2929.19(B)(6).

3. {¶ 9} The decision to impose or waive a fine rests within the sound discretion of

the court and will not be reversed on appeal absent an abuse of that discretion. See State

v. Kruse, 6th Dist. No. WD-05-001, 2006-Ohio-3179, at ¶ 49, citing State v. Gipson, 80

Ohio St.3d 626, 634, 687 N.E.2d 750 (1998). The burden is on the offender to

affirmatively demonstrate that he is indigent and unable to pay the mandatory fine.

Gipson at 635. The trial court does not have to make an “affirmative finding that an

offender is able to pay a mandatory fine.” Id. at 634.

{¶ 10} Here, appellant argues that the court did not properly consider appellant’s

present and future ability to pay the mandatory fine, and only speculated that he may be

able to someday pay because of his age. We disagree. There are no express factors that

the court must take into consideration, nor any findings in regards to the offender’s

ability to pay that must be made on the record. State v. Martin, 140 Ohio App.3d 326,

747 N.E.2d 318 (4th Dist.2000). See also State v. Smith, 3d Dist. No. 2-06-37, 2007-

Ohio-3129, ¶ 31, citing State v. Wells, 3d Dist. No. 13-02-17, 2002-Ohio-5318, ¶ 8.

{¶ 11} It is clear from the record that the court took appellant’s education into

consideration. Although appellant now argues that he has minimal education and lacks a

GED, at the July 27 plea and sentencing hearing, appellant told the court that he had three

years of college. The court also considered appellant’s present and future ability to gain

employment. Although appellant claims no apparent employable job skills, his attorney

stated at the March 20 hearing that he was gainfully employed two years prior to his

4. sentencing. Appellant also failed to provide any mental or physical impairment that

would prevent him from gaining employment in the future.

{¶ 12} In denying appellant’s motion to waive the mandatory fine, the record

indicates that the court considered several factors: appellant’s education, work

experience, lack of impairments, and the fact that he will be an able bodied man in his

mid-forties when he is released from prison.

{¶ 13} Accordingly, we conclude that the court complied with R.C. 2929.19(B)(6)

by considering appellant’s present and future ability to pay the mandatory fine. Thus,

denying appellant’s motion to waive the mandatory fine was not an abuse of discretion.

Appellant’s assignment of error is not well-taken.

III. Conclusion

{¶ 14} Based on the foregoing, the judgment of the Wood County Court of

Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

5. State v. VanCamp C.A. No. WD-15-034

Thomas J. Osowik, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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