[Cite as State v. Williams, 2014-Ohio-65.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2012-L-111 - vs - :
GAIL A. WILLIAMS, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR 000400.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff- Appellee).
Matthew C. Bangerter, 1360 West 9th Street, Suite 200, Cleveland, OH 44113 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Gail A. Williams, appeals the decision of the Lake County Court
of Common Pleas, which affirmed the imposition of a mandatory fine following a post-
sentence motion to waive a fine. Appellant argues the trial court erred in denying her
motion and also argues her trial counsel was ineffective for failing to file an affidavit of
indigency prior to sentencing. As appellant failed to appeal the underlying sentencing
entry which originally imposed the fine, the issue is now res judicata. Further, assuming the merits could be reached, the trial court did not err in denying an untimely
and non-supportive affidavit of indigency pursuant to the mandates of R.C.
2929.18(B)(1). Additionally, on this record, we cannot conclude trial counsel’s
representation fell below the objective standard for reasonable representation. For
these reasons, and as fully set forth below, the judgment is affirmed.
{¶2} Appellant pled guilty to one second-degree felony charge of illegal
manufacture of drugs (Methamphetamine), with a prior drug conviction finding, in
violation of R.C. 2925.04; and endangering children, a third-degree felony in violation of
R.C. 2919.22(B)(6). In the written plea agreement appellant acknowledged that she
did, in fact, face a mandatory fine of $7,500.00 to $15,000.00 as part of her sentence.
{¶3} Upon application of the state, the trial court entered a nolle prosequi on
the remaining charges set forth in the indictment – one third-degree felony charge of
illegal assembly or possession of chemicals for the manufacture of drugs (Count
Three); one second-degree felony charge of illegal assembly or possession of
chemicals for the manufacture of drugs, with a finding the offense was committed in the
vicinity of a juvenile (Count Five), both in violation of R.C. 2925.041; and one first-
degree felony charge of illegal manufacture of drugs (Methamphetamine), with a
finding the offense was committed in the vicinity of a juvenile, in violation of R.C.
2925.04 (Count Four).
{¶4} On May 3, 2012, the trial court held its sentencing hearing on the matter.
During the hearing, trial counsel for appellant declared his client was indigent,
acknowledged he had not filed any motion with regard to her indigency, and noted he
would file an affidavit of indigency following the hearing. Appellant was sentenced to
2 five years in prison and ordered to pay a mandatory fine of $7,500.00, pursuant to R.C.
2929.18(B)(1).
{¶5} On May 7, 2012, the trial court’s sentencing entry was filed. On May 8,
2012, appellant filed a motion to waive the fine with an attached affidavit of indigency.
On May 23, 2012, the trial court denied appellant’s motion to waive fine and upheld its
assessment of the $7,500 fine. The trial court noted it denied the motion for two
reasons: the motion was not filed prior to the sentencing hearing or prior to the
judgment entry being filed, and the affidavit did not contain the requisite information as
it was a copy of an affidavit from July 2011, for the purpose of receiving a court-
appointed attorney.
{¶6} Appellant then filed a motion captioned “motion for reconsideration,” which
the trial court purported to deny. Parenthetically, we note a motion for reconsideration
of a final judgment is not provided for in any criminal or civil rule and is therefore
considered a legal nullity. See State v. Keith, 9th Dist. Lorain No. 08CA009362, 2009-
Ohio-76, ¶8. Accordingly, the trial court’s entry purporting to rule on the motion was
itself a nullity. See State v. Ledney, 11th Dist. Trumbull Nos. 2012-T-0018, 20, 21,
2012-Ohio-5126, ¶5.
{¶7} Appellant subsequently sought leave to file a delayed appeal from the
entry denying her motion to waive the fine, which was granted. Appellant asserts two
assignments of error. Appellant’s first assignment of error states:
{¶8} “The trial court erred to the prejudice of the Defendant-Appellant when it
imposed the statutory fine without making inquiry into her ability to pay.”
3 {¶9} Appellant was ordered to pay a $7,500 mandatory fine as part of her
sentence. Appellant disputes the imposition of the fine, alleging violations of R.C.
2929.18(B)(1), which prohibits an imposition of an otherwise mandatory fine against an
indigent offender, and R.C. 2929.19(B)(5), which requires consideration of the
offender’s present and future inability to pay.
{¶10} R.C. 2929.18(B)(1) imposes a mandatory fine for a first, second, or third
degree felony violation of any provision of Chapter 2925, 3719, or 4729 of the Revised
Code. Here, appellant pled guilty to one second-degree felony charge of illegal
manufacture of drugs (Methamphetamine), with a prior drug conviction finding, a
second-degree felony in violation of R.C. 2925.04, thereby subjecting her to the
mandatory fine set forth in R.C. 2929.18(B)(1).
{¶11} However, R.C. 2929.18(B)(1) also prohibits a trial court from imposing a
mandatory fine on a indigent defendant. That portion of the statute states: “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 described in this
division, the court shall not impose the mandatory fine upon the offender.” (Emphasis
added.)
{¶12} R.C. 2929.19(B)(5) states a trial court, before imposing a fine under R.C.
2929.18, must consider the offender’s present and future ability to pay the amount of
the fine.
{¶13} We first address the standard of review to be applied when addressing a
trial court’s decision concerning the imposition of a fine in felony cases. This court has
4 previously noted that, given the language of R.C. 2929.18(B)(1), which dictates the
action the trial court “shall” or “shall not” take, “the decision to impose a fine is not a
discretionary one but, rather, a mandatory requirement for the trial court where the
defendant has not filed an affidavit of indigency with the court prior to sentence.” State
v. Grissom, 11th Dist. Lake No. 2001-L-107, 2002-Ohio-5154, ¶30. The Ohio Supreme
Court in State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, similarly noted the
obligatory language of R.C. 2929.18(B)(1) and concluded “the trial court has no
discretion in deciding whether to impose the fine” and that “an offender’s sentence that
does not properly include a statutorily mandated term is contrary to law.” Id. at ¶13-14.
This would suggest a de novo standard of review. However, there is also authority for,
and this court has held, that a court’s imposition of a mandatory fine is reviewed under
an abuse of discretion standard. State v. Bernadine, 11th Dist. Portage No. 2010-P-
0056, 2011-Ohio-4023, ¶16; State v. Williams, 8th Dist. Cuyahoga No. 92419, 2009-
Ohio-5964, ¶5. Indeed, there is, in fact, a discretionary element to the decision
concerning whether to impose a fine as a trial court obviously can still decide an
offender is not indigent following a timely-filed, though substantively-lacking, affidavit.
See, e.g., State v. Lenhert, 6th Dist. Wood No. WD-08-078, 2009-Ohio-5392 (following
a timely-filed affidavit, trial court did not find defendant indigent and imposed fine
pursuant to R.C. 2929.18(B)(1); judgment affirmed.)
{¶14} The reality is an appellate court conducts both de novo and abuse of
discretion standards of review when reviewing felony sentencing issues, as dictated by
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. In the case sub judice, this review
requires us to examine de novo the trial court’s compliance with R.C. 2929.18 in
5 imposing the fine to determine whether that portion of the sentence is contrary to law,
pursuant to Moore, supra. Next, we proceed with the second determination of whether
the trial court abused its discretion in imposing the fine. See State v. Pilgrim, 184 Ohio
App.3d 675, 2009-Ohio-5357, ¶74-78 (10th Dist.) (setting forth the Kalish standard of
review for appeals challenging trial court’s imposition of a fine pursuant to R.C.
2929.18(B)(1)).
{¶15} As a preliminary matter, we note appellant filed her motion for leave to file
a delayed appeal, specifying an appeal “from the judgment denying her Motion to
Waive Fine.” In her accompanying notice of appeal, appellant designated the judgment
denying her motion to waive the fine as the entry upon which she appeals. This court
granted the motion based upon this specified entry. Appellant has not appealed, nor
has she ever purported to appeal, the sentencing entry which originally imposed the
mandatory fine. The issue of the mandatory fine is therefore res judicata. See State v.
Slagle, 5th Dist. Richland No. 12CA62, 2013-Ohio-230 (the issue of a mandatory fine
was deemed res judicata where, the offender appealed from the trial court’s denial of a
post-sentence motion to vacate costs, but never timely appealed the underlying
sentencing entry); see also State v. Burnett, 10th Dist. Franklin No. 08AP-304, 2008-
Ohio-5224, ¶5, and State v. McDowell, 3d Dist. Mercer No. 10-06-34, 2007-Ohio-5486,
¶10.
{¶16} Even if res judicata did not apply, however, appellant’s argument would
still fail. First, appellant’s affidavit was not filed prior to the sentencing hearing or prior
to the judgment entry being filed. As indicated by the plain language of R.C.
2929.18(B)(1), an affidavit of indigency must be “filed with the court prior to
6 sentencing.” This means that “the affidavit must be delivered to the clerk of court for
purposes of filing and must be indorsed by the clerk of court, i.e., time-stamped, prior to
the filing of the journal entry reflecting the trial court’s sentencing decision.” State v.
Gipson, 80 Ohio St.3d 626 (1998), paragraph one of the syllabus; see also State v.
Mays, 11th Dist. Lake No. 2005-L-052, 2006-Ohio-3890 (where the affidavit of
indigency—filed after the sentencing hearing but before the sentencing entry – was
deemed timely.)
{¶17} The timeliness of an affidavit pursuant to R.C. 2929.19(B)(1) is critical:
“the fact that the affidavit was not properly filed prior to sentencing is, standing alone, a
sufficient reason to find that the trial court committed no error by imposing the statutory
fine.” Gipson, 80 Ohio St.3d at 633; see also Grissom, 2002-Ohio-5154, ¶31. Here,
the motion to waive fine was not filed prior to sentencing. The judgment entry imposing
the mandatory fine was placed on the court’s docket on May 7, 2012, while the motion
to waive the fine was filed one day later. The trial court therefore did not err or abuse
its discretion in applying R.C. 2929.18(B)(1) and finding that the motion and
accompanying affidavit were not timely.
{¶18} Additionally, the “supporting” affidavit did not contain the requisite
information as it was a copy of an affidavit from July 2011 for the purpose of receiving a
court-appointed attorney, previously accepted in Painesville Municipal Court. An
affidavit establishing indigency for court-appointed counsel is distinct from an affidavit
establishing indigency for avoidance of a mandatory fine. Id at ¶21. This is because,
“when deciding whether a defendant is an indigent for the purpose of appointment of
counsel, the trial court need only inquire into the defendant’s indigency status at the
7 time request for counsel was made.” State v. McDowell, 11th Dist. Portage No. 2001-
P-0149, 2003-Ohio-5352, ¶69. “However, when evaluating indigency for the avoidance
of a mandatory fine, the trial court may inquire into the defendant’s ability to pay the
mandatory fine in the future, and is not limited to the indigency status of the defendant
at the time it was imposed.” Id. Here, appellant merely attached her prior affidavit
which established indigency for purposes of obtaining court-appointed counsel. The
trial court therefore did not err or abuse its discretion in finding that the affidavit was
insufficient to establish indigency for avoiding the mandatory fine.
{¶19} Turning to R.C. 2929.19(B)(5), it is evident the trial court considered
appellant’s present and future ability to pay before issuing the mandatory fine pursuant
to R.C. 2929.18(B)(1). The trial court noted on the record that it reviewed the
presentence report. Upon review, this presentence report details appellant’s financial
state, including her assets and monthly earnings, as well as her prospective earning
ability based on education. Where the record indicates a trial court has considered a
pre-sentence investigation report which does, in fact, detail relevant financial
information, the court has adequately complied with R.C. 2929.19(B)(5). See
Bernadine, 2011-Ohio-4023, ¶28 (decided under former analogous R.C.
2929.19(B)(6)).
{¶20} We therefore conclude the doctrine of res judicata bars appellant’s
argument concerning the fine. Even if res judicata does not apply, a review on the
merits would indicate the trial court complied with all applicable statutes, including R.C.
2929.18(B)(1), and R.C. 2929.19(B)(5), and did not abuse its discretion in imposing the
mandatory fine.
8 {¶21} Appellant’s first assignment of error is without merit.
{¶22} Appellant’s second assignment of error states:
{¶23} “Defendant-Appellant was denied effective assistance of counsel in
violation of the Sixth Amendment of the United States Constitution.”
{¶24} In her second assignment of error, appellant contends her trial counsel
was ineffective for failing to file an affidavit of indigency prior to sentencing.
{¶25} Pursuant to Strickland v. Washington, 466 U.S. 668 (1984), to prevail on
an ineffective assistance of counsel claim, appellant must demonstrate that trial
counsel's performance fell below an objective standard of reasonable representation,
and there is a reasonable probability that, but for counsel's error, the result of the
proceeding would have been different. There is a general presumption that trial
counsel's conduct is within the broad range of professional assistance. Id. at 688-695.
{¶26} “[T]he failure to file an affidavit attesting to a defendant's indigency only
establishes ineffective assistance of counsel when the record shows a reasonable
probability that the trial court would have found the defendant indigent.” McDowell,
2003-Ohio-5352, ¶75.
{¶27} Ordinarily, “[i]nformation regarding [the] Defendant's financial status is
typically outside the record on merit appeal. Then, the more appropriate vehicle for
pursuing that issue is post-conviction relief proceedings filed pursuant to R.C.
2953.21.” State v. Sheffield, 2d Dist. Montgomery No. 20029, 2004-Ohio-3099, ¶14.
Though there was no post-conviction relief proceeding in this case, this court does
have before it in the record the affidavit which was not filed in a timely fashion to
review. As explained above, however, the affidavit did not contain sufficient
9 information for purposes of R.C. 2929.18(B)(1); therefore, the mere filing of the motion
and accompanying affidavit prior to sentencing would not have changed the result of
the proceeding. Further, as indicated above, there was ample evidence before the trial
court regarding appellant’s financial condition such that the court could consider her
present and future ability to pay. This information – which includes assets, monthly
income, and educational information – illustrate appellant’s ability to pay the subject
fine, and indicates that the result of the proceedings would not have been different.
{¶28} It therefore cannot be concluded that appellant was deprived effective
assistance of trial counsel.
{¶29} Appellant’s second assignment of error is without merit.
{¶30} The judgment of the Lake County Court of Common Pleas is hereby
affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion.
____________________
{¶31} I would reverse and remand based on the second assignment of error. As
the Third Appellate District has noted:
{¶32} “The failure to file an affidavit of indigence prior to sentencing may
constitute ineffective assistance of counsel if the record shows a reasonable probability
10 that the trial court would have found a defendant indigent and relieved him of the
obligation to pay the [mandatory] fine had the affidavit been filed. State v. Harris, 6th
Dist. No. F-04-005, 2005-Ohio-1779, at ¶36; State v. Sheffield, 2d Dist. No. 20029,
2004-Ohio-3099, at ¶13; State v. McDowell, 11th Dist. No. 2001-P-0149, 2003-Ohio-
5352, at ¶75; State v. Williams (1995), 105 Ohio App.3d 471, 482, * * *; State v. Powell
(1992), 78 Ohio App.3d 784, 787, * * *. (Parallel citations omitted.) State v. Frazier, 3d
Dist. Hancock No. 5-04-57, 2005-Ohio-3515, ¶9, rev’d and remanded on other grounds
by In re Ohio Crim. Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109.
{¶33} In this case, the record shows the trial court found appellant indigent for
purposes of appointing counsel, and provision of a transcript on appeal. While the
analyses of whether a person is indigent for these purposes, as opposed to being
indigent regarding payment of a mandatory fine, are different, the actions of the trial
court indicate it might well have found appellant indigent regarding payment of the fine
if the issue had been presented properly to the court. I agree with the majority that the
trial court had the benefit of the presentence report in this case, which detailed certain
assets presently owned by appellant. I do not necessarily agree that this formed the
basis of the trial court’s denial of the waiver of the fine. In its judgment entry denying
that waiver, the trial court emphasized procedural failings: i.e., trial counsel’s failure to
file an affidavit prior to filing of the judgment entry of sentence, and the fact the affidavit
filed was merely a copy of that used to support appointment of counsel. The substance
of the issue was never reached: i.e., whether appellant would have the ability, after
serving a mandatory five year sentence, to pay that fine. The record also indicates that
appellant was gainfully employed throughout the period pending her sentencing – and
11 the trial court nevertheless found her indigent for purposes of appointing counsel and
ordering a transcript. I respectfully submit that this indicates the trial court may have
reached a different conclusion regarding waiver of the mandatory fine, if the issue had
been properly before it. In any case, I believe the matter is one that court, not this one,
should decide.
{¶34} I disagree with the majority that appellant’s failure to appeal from the
judgment entry of sentence, imposing the fine, rather than the denial of her motion to
waive the fine, renders imposition of the fine res judicata. Res judicata does not attach
to those portions of a sentence which are void. See, e.g., State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, paragraph three of the syllabus. Failure by trial counsel to
file an affidavit of indigency regarding a mandatory drug fine renders that part of the
sentence imposing the fine void. State v. Hubbard, 8th Dist. Cuyahoga No. 99093,
2013-Ohio-1994, ¶18. Consequently, that portion of appellant’s sentence pertaining to
her mandatory drug fine is void, and is not res judicata. It is subject to attack, including
collateral attack.
{¶35} Additionally, the requirement that a defendant who files an affidavit of
indigency to obtain counsel must file a second affidavit for the court to consider in
imposing a mandatory fine is redundant. The statutes providing for mandatory fines
“clearly require imposition of a mandatory fine unless (1) the offender’s affidavit is filed
prior to sentencing, and (2) the trial court finds that the offender is an indigent person
and is unable to pay the mandatory fines.” State v. Gipson, 80 Ohio St.3d 626, 634,
1998. Several courts have held that filing the term “prior to sentencing” means the
affidavit must be filed and indorsed (time-stamped) by the clerk of court, prior to the
12 filing of the journal entry of sentencing decision. Id. at paragraph one of the syllabus,
State v. Shepard, 8th Dist. Cuyahoga No. 95433, 2011-Ohio-2525, ¶8.
{¶36} Here appellant filed an affidavit of indigency, with the clerk of court, in the
Painesville Municipal Court prior to the case being transferred to the Lake County
Common Pleas Court. Several courts have held that determining the indigency status
of a defendant for purposes of appointing counsel is different than determining a
defendant’s ability to pay fines as one analysis determines the ability to pay for an
attorney presently and the other analysis determines the future ability to pay fines.
State v. Lewis, 2d Dist. Greene No. 2011-CA-75, 2012-Ohio-4858, ¶16, citing State v.
Hodge, 2d Dist. Montgomery No. 23964, 2011-Ohio-633, ¶55 and State v. Kelly, 145
Ohio App.3d 277, 284 (12th Dist.2001).
{¶37} However, there is nothing in the statute that states that the affidavit filed to
obtain counsel is insufficient for purposes of determining the ability to pay fines
provided it has been properly filed with the clerk of court. This court held in State v.
Bernadine, 11th Dist. Portage No. 2010-P-0056, 2011-Ohio-4023, ¶19, that appellant’s
affidavit of indigency (filed to obtain counsel) was insufficient to satisfy R.C. 2929.18,
not because a separate affidavit was required, but because the affidavit had not been
filed with the clerk of courts as required by statute. This is reasonable. What is not
reasonable is to require a defendant to engage in the purely ministerial function of filing
a second affidavit that contains the exact same financial information as the first. The
financial disclosure/affidavit of indigency form used in most courts in Ohio requires a
defendant to make a complete listing of all income, assets and expenses. This is the
13 very same information that a court uses prior to sentencing to determine the ability to
pay fines.
{¶38} Requiring a defendant to file a second affidavit, containing the exact same
financial information already provided, so the court can make a determination of ability
to pay fines over time (versus immediate ability to pay for counsel) is redundant,
bureaucratic, and does nothing to serve the further ends of justice. Additionally, there
is nothing in the statute that states that the affidavit used to obtain counsel is
insufficient for purposes of determining the ability to pay fines provided it has been
properly filed with the clerk of courts.
{¶39} As appellant in this case filed her affidavit of indigency with the clerk of
courts prior to sentencing, she has fulfilled the requirements of the statute. The trial
court could have reviewed the affidavit in making its determination of appellant’s ability
to pay the mandatory fines.
Thus, I dissent.