State v. Zsigray

2021 Ohio 1401

• Court: Ohio Court of Appeals
• Decided: April 22, 2021
• Docket: 109466
• Status: Published

Opinion

[Cite as State v. Zsigray, 2021-Ohio-1401.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109466 v. :

WILLIAM S. ZSIGRAY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED IN PART; REMANDED RELEASED AND JOURNALIZED: April 22, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-638567-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Ayoub Dakdouk, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant. SEAN C. GALLAGHER, P.J.:

Appellant William S. Zsigray appeals the trial court’s imposition of a

mandatory fine. Upon review, we vacate the part of Zsigray’s sentence ordering him

to pay the mandatory fine.

Background

On April 15, 2019, Zsigray was indicted for trafficking in violation of

R.C. 2925.03(A)(2), a felony of the first degree, with a schoolyard specification and

a forfeiture specification; and drug possession in violation of R.C. 2925.11(A), a

felony of the second degree, with two forfeiture specifications. Zsigray was declared

indigent and was appointed counsel. He initially entered a plea of not guilty to the

charges.

Following discovery, Zsigray entered a plea of guilty to an amended

Count 2 for drug possession in violation of R.C. 2925.11(A), a felony of the third

degree, with the forfeiture specifications; and Count 1 for trafficking was dismissed.

At the change-of-plea hearing, it was acknowledged that the amended charge carried

a presumption in favor of prison and that there was a mandatory fine. The trial court

engaged in a Crim.R. 11 colloquy with Zsigray and found that the plea was made

knowingly, intelligently, and voluntarily. The trial court ordered a presentence

investigation report (“PSI report”) and set a date for sentencing.

At the sentencing hearing, the trial court indicated it had reviewed the

entire case file, the PSI report, and R.C. 2911.11, 2911.12, and 2911.13. The state

deferred to the court for sentencing. Defense counsel discussed mitigating factors, including that Zsigray,

who at the time of sentencing was almost 60 years old and had no prior felonies,

broke his back in 2001, became addicted to pain killers, and eventually graduated to

heroin. Defense counsel indicated that Zsigray had been actively participating in

intensive outpatient programming since April 2019 and had tested negative on all

urine screens. Defense counsel further indicated that he filed a poverty affidavit for

Zsigray before the sentencing hearing, and he requested that Zsigray be placed on

community control. Zsigray addressed the court and indicated he was “off the drugs

now,” acknowledged his mistakes, and stated he “did it for medical reason[s] to help

me through my pain while I was working and so forth.”

Despite the presumption of a prison term, the trial court sentenced

Zsigray to 36 months of community control with conditions and advised Zsigray that

a violation would result in 36 months in prison. The trial court also imposed a

$5,000 mandatory fine and ordered Zsigray to pay costs and fees. The court

indicated that “[i]f the defendant fails to pay the costs and fees as ordered or

according to an approved schedule[,] then the defendant is ordered to perform up

to 40 additional hours of court community work service per month * * *.”

Zsigray did not object to the imposition of the mandatory fine during

the sentencing hearing. However, the record reflects that Zsigray’s poverty affidavit

was filed the day of the sentencing hearing. Further, the PSI report, which the trial

court indicated it considered, reflects that Zsigray, who is now 61, has only a tenth-

grade education, had a nearly lifelong battle with drugs and alcohol, became addicted to pain killers after suffering a broken back in 2001, and developed a heroin

addiction. Further, Zsigray was last employed in 2018 and he reported no income

other than $197 in food stamps. Although Zsigray owns a home valued at $50,000

and owes property taxes approximated at $2,000, the PSI report indicates that

Zsigray struggles to pay his bills and is dependent on his girlfriend for financial

support. Notwithstanding these circumstances, the trial court imposed the

mandatory fine.

In the sentencing journal entry, the trial court included the 36 months

of community control with the conditions that were imposed, stated a violation of

the terms and conditions may result in more restrictive sanctions or a prison term

of three years as approved by law, ordered Zsigray to pay the mandatory fine in the

sum of $5,000, and ordered Zsigray to pay costs.

Zsigray timely filed this appeal.

Law and Analysis

Zsigray raises two assignments of error for our review. Under his first

assignment of error, Zsigray claims the trial court erred by imposing a fine because

he filed a poverty affidavit and, according to Zsigray, the record demonstrates he is

indigent and has no present or future ability to pay the fine.

R.C. 2929.19(B)(5) provides as follows:

Before imposing a financial sanction under section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised Code, the court shall consider the offender’s present and future ability to pay the amount of the sanction or fine. R.C. 2929.18(B)(1) provides as follows:

For a first, second, or third degree felony violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine of at least one- half of, but not more than, the maximum statutory fine amount authorized for the level of the offense pursuant to division (A)(3) of this section. 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.

A mandatory fine under R.C. 2929.18(B)(1) must be imposed unless

(1) the offender alleges in a timely filed affidavit that the offender is indigent and

unable to pay the mandatory fine, and (2) the court determines the offender is

indigent and unable to pay the mandatory fine. State v. Gipson, 80 Ohio St.3d 626,

631, 687 N.E.2d 750 (1998); see also State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-

5479, 985 N.E.2d 432, ¶ 13, limited by State v. Harper, 160 Ohio St.3d 480, 2020-

Ohio-2913, 159 N.E.3d 248, ¶ 42. The filing of the requisite affidavit does not

automatically entitle a defendant to a waiver of a mandatory fine. Gipson at 634.

Nor does indigency alone. See id. Also, “[a] determination that a criminal defendant

is indigent for purposes of receiving appointed counsel is separate and distinct from

a determination of being indigent for purposes of paying a mandatory fine.” State

v. Cruz, 8th Dist. Cuyahoga No. 106098, 2018-Ohio-2052, ¶ 28, citing State v. Knox,

115 Ohio App.3d 313, 317, 685 N.E.2d 304 (8th Dist.1996).

“When considering whether the offender is indigent for purposes of

waiving the mandatory fine, the court must consider the offender’s present and future ability to pay the fine.” State v. Gray, 8th Dist. Cuyahoga No. 104140, 2016-

Ohio-8320, ¶ 8, citing State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-Ohio-

3002, ¶ 12. “[T]he burden is upon the offender to affirmatively demonstrate that he

or she is indigent and is unable to pay the mandatory fine.” (Emphasis sic.) Gipson

at 635. “[T]he second prerequisite affords the court discretion to review the

offender’s circumstances and determine whether the offender is unable to pay.”

Gray at ¶ 10, citing State v. Campbell, 12th Dist. Warren No. CA2012-08-070, 2013-

Ohio-3088, ¶ 10.

Additionally, a trial court is not required to make any specific findings

regarding an offender’s present and future ability to pay. Cruz at ¶ 27, citing State

v. Loving, 180 Ohio App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 9 (10th Dist.).

Consideration of the offender’s ability to pay the amount of the fine can be inferred

from the trial court’s use of a presentence investigation (“PSI”) report, which often

includes a defendant’s financial and personal information. State v. Poff, 5th Dist.

Morgan No. 20AP0005, 2021-Ohio-384, ¶ 43, citing State v. Johnson, 12th Dist.

Butler No. CA2011-11-212, 2014-Ohio-3776, ¶ 12; State v. McNear, 1st Dist.

Hamilton No. C-190643, 2020-Ohio-4686, ¶ 17.

The record herein reflects, and Zsigray concedes, that the trial court

had the PSI report at the time of sentencing along with the properly filed poverty

affidavit. He argues that the trial court was aware of his indigence and the

circumstances that make his indigence unlikely to change. He claims that the trial

court abused its discretion by imposing the mandatory fine in this case. In Gipson, the Supreme Court of Ohio determined that a trial court

did not err in requiring a defendant to pay a mandatory fine when the record

demonstrated that the defendant appeared to be actively seeking employment at the

time of sentencing, had retained private counsel, and was an able-bodied young man

with employment potential. Gipson, 80 Ohio St.3d at 634, 687 N.E.2d 750. The

Supreme Court recognized that under these circumstances, although Gipson was

indigent and unemployed at the time of the sentencing hearing, “the trial court could

have reasonably determined * * * he was not ‘unable to pay’ the mandatory fine over

the course of his probation.” Id. The fact that Gipson was placed on probation was

considered along with his youth, physical stature, and ability to work in determining

Gipson’s ability to pay the mandatory fine over a four-year period of probation. Id.

at 636. The Supreme Court distinguished cases where an indigent defendant had

been sentenced to a term of incarceration and would be unable to pay the mandatory

fine for some period of time. Id. at 635-636, citing State v. Pendleton, 104 Ohio

App.3d 785, 787-788, 663 N.E.2d 395 (1st Dist.1995); State v. Lefever, 91 Ohio

App.3d 301, 309, 632 N.E.2d 589 (2d Dist.1993); and State v. Gutierrez, 95 Ohio

App.3d 414, 418, 642 N.E.2d 674 (9th Dist.1994). However, as the Supreme Court

stated in Gipson, the General Assembly did not intend to preclude a trial court from

imposing fines “on able-bodied defendants who are fully capable of work but who

happen to be indigent and unemployed at the moment of sentencing.” Id. at 636.

For purposes of R.C. 2925.29.18(B)(1), “whether an offender is indigent and is unable to pay the mandatory fine can (and should) encompass future ability to pay.”

(Emphasis sic.) Id.

In this case, there is no dispute that Zsigray filed an affidavit prior to

sentencing that alleged he is indigent and unable to pay the mandatory fine. Zsigray

claims the trial court erred by imposing the mandatory fine because at the time of

sentencing he had no ability to pay a $5,000 fine and he has almost no chance of

being able to pay the fine in the future. He argues that the presentence investigation

report demonstrates that he is a 61-year-old recovering drug addict who broke his

back in 2001, he has only a tenth-grade education, he is not employed or collecting

unemployment, and he now has a felony record.

In support of his argument, Zsigray cites to State v. Davis, 8th Dist.

Cuyahoga No. 99976, 2014-Ohio-2052, wherein a panel of this court determined

that a trial court abused its discretion in imposing a mandatory fine under

circumstances where the defendant, although only 23 years old, was unemployed,

had no alternative source of income, owned no real property, did not own a vehicle,

and had impediments to obtaining gainful employment once released from prison,

including a felony conviction and a previous record dating back to when he was a

juvenile, a ninth-grade education, and a suspended driver’s license. Id. at ¶ 10.

Under the particular circumstances of that case, it was determined that the mere

possibility that the offender might be able to pay the fine in the future was not a

proper basis for finding the defendant was not indigent. Id. at ¶ 11. The court also

noted concern that if a fine were imposed, the defendant might return to a life of crime in order to pay the mandatory fine. Id., citing State v. Williams, 8th Dist.

Cuyahoga No. 92419, 2009-Ohio-5964, ¶ 12. In Williams, a panel of this court found

it was error to impose a fine upon an indigent defendant who was sentenced to

prison, had no income, no cash on hand, no real estate, and no automobile, and had

financial support responsibilities. Id. at ¶ 9-13. Although Davis and Williams

involved a defendant who was sentenced to incarceration, as opposed to a period of

community control, the cases present other circumstances that are similar to this

matter.

Our review of the record demonstrates that the trial court was made

aware that an affidavit of indigency had been filed, and the court stated it had

considered the PSI report. We recognize that despite the presumption for a prison

term, the trial court sentenced Zsigray to community control and imposed the

mandatory fine. However, the record reflects that Zsigray affirmatively

demonstrated that he is indigent and is unable to pay the mandatory fine. Unlike

the able-bodied young man actively seeking employment in Gipson, Zsigray is much

older, suffered a broken back, is unemployed, has no income, struggles to pay his

bills, has a tenth-grade education, and has a felony conviction and a lengthy history

with drugs and alcohol. Similar to the circumstances in Davis and Williams,

imposition of the mandatory fine may compel Zsigray to return to a life of crime in

order to pay the mandatory fine. Under the particular circumstances of this case, we find the trial court

abused its discretion when it imposed the mandatory fine. Accordingly, we sustain

the first assignment of error and vacate the mandatory fine.

Under the second assignment of error, Zsigray claims he received

ineffective assistance of counsel and asserts his trial counsel did not properly request

the court to waive the fine.

“[A]ppellate courts generally review ineffective assistance of counsel

claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel

claim, the defendant must show that his trial counsel’s performance was deficient

and that the deficient performance prejudiced his defense so as to deprive the

defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Grate, Slip Opinion No. 2020-Ohio-5584,

¶ 49. “[A] court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance * * *.” Strickland at 689.

To establish prejudice, the defendant must demonstrate there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

Zsigray argues that although his trial counsel filed the poverty

affidavit prior to sentencing, he stopped short of asking the trial court to recognize

Zsigray’s indigence and to waive the fine. He further argues that trial counsel was silent after the fine was imposed. He states that the failure to request a waiver more

likely than not resulted in the court imposing the fine.

The Supreme Court of Ohio has found that under R.C. 2929.18(B)(1)

“the affidavit must be formally filed with the court prior to the filing of a journal

entry reflecting the trial court’s sentencing decision.” Gipson, 80 Ohio St.3d at 632,

1998-Ohio-659, 687 N.E.2d 750. Here, trial counsel filed the affidavit on the day of

the sentencing hearing and specifically notified the court of its filing. There was no

deficiency in counsel’s performance. See State v. Shepard, 8th Dist. Cuyahoga No.

95433, 2011-Ohio-2525, ¶ 15 (finding no ineffective assistance of counsel where trial

counsel complied with the mandate of R.C. 2929.18(B)(1) and filed the affidavit of

indigency prior to the filing of the sentencing journal entry). Additionally, the record

reflects that the trial court was aware the affidavit had been filed and indicated it

had reviewed the PSI report. Accordingly, we overrule the second assignment of

error.

As a final matter, the state asserts that the trial court’s sentencing

journal entry does not reflect the trial court’s decision requiring appellant to pay the

mandatory fine by cash or by performing community service. As correctly observed

by Zsigray, at the sentencing hearing the trial court only mentioned “costs and fees”

in detailing how community work service would be applied to unpaid balances. The

language used by the trial court was consistent with R.C. 2947.23(A)(1)(a)(i), which

permits a court to order a defendant to perform community service when a

defendant fails to pay a judgment for the costs of prosecution. Nothing was stated on the record or in the sentencing journal entry about applying community work

service to the mandatory fine. In any event, we are vacating the imposition of the

In conclusion, the part of Zsigray’s sentence ordering him to pay the

mandatory fine of $5,000 is vacated. The case is remanded to the trial court to

modify the sentencing entry.

Judgment vacated in part; case remanded.

It is ordered that appellant recover from appellee 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE

LARRY A. JONES, SR., J., and EILEEN A. GALLAGHER, J., CONCUR