State v. Kelly
2017 Ohio 674
Ohio Ct. App.2017Background
- Jeremy R. Kelly was indicted on multiple drug-related counts and, after a suppression hearing, pled guilty to aggravated drug trafficking (second-degree felony) and drug trafficking (third-degree felony).
- The trial court accepted the plea, ordered a presentence investigation (PSI), and scheduled sentencing; no affidavit of indigency was filed before sentencing.
- At sentencing the court imposed concurrent prison terms totaling four years and three years of postrelease control.
- The court assessed mandatory statutory fines ($15,000 for the second-degree count and $10,000 for the third-degree count) and ordered payment of prosecution costs; counsel did not object at sentencing.
- Kelly appealed, arguing the court failed to consider his present and future ability to pay before imposing costs and mandatory fines and that trial counsel was ineffective for not filing an affidavit of indigency or objecting.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred by imposing prosecution costs without considering ability to pay | Kelly: court must consider present/future ability to pay before assessing costs | State: R.C. 2947.23 mandates assessment of costs; court may later modify or waive | No error; statute mandates imposition and court retained post-sentencing jurisdiction to address waiver/modification |
| Whether court erred by imposing mandatory fines without finding ability to pay | Kelly: fines should not be imposed absent consideration or affidavit of indigency | State: PSI provided evidence of ability to pay; statutory fines were within permissible range | No error; PSI showed ability/expectation to pay and no affidavit was filed, so fines proper |
| Whether counsel was ineffective for failing to file affidavit of indigency or object | Kelly: counsel’s failure prejudiced him because affidavit might have avoided fines | State: plea and record curtailed claim; PSI supported ability to pay, so no prejudice | No ineffective assistance; no reasonable probability that outcome would differ given record |
| Whether court needed an affirmative finding about ability to pay before imposing fines | Kelly: court must make express ability-to-pay finding | State: only record evidence that court considered ability is required | Held that an express affirmative finding is not required; evidence in record sufficed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (test for ineffective assistance of counsel)
- Hester v. State, 45 Ohio St.2d 71 (1976) (fair trial and substantial justice standard cited for counsel performance)
- Calhoun v. United States, 86 Ohio St.3d 279 (1999) (counsel performance and prejudice framework applied)
- Marcum v. State, 146 Ohio St.3d 516 (2016) (standard of review for imposition of costs and financial sanctions)
- Lather v. State, 171 Ohio App.3d 708 (2007) (discussion of mandatory fines for drug offenses)