State v. BernadineState v. Bernadine
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Nancy L. Bernadine, appeals from the Judgment Entry of the Portage County Court of Common Pleas, sentencing her to total term of eight years of imprisonment and ordering her to pay a $10,000 fine and $1,180 in restitution to the Portage County Drug Task Force. The issues to be decided in this case are whether a trial court may find a defendant indigent for the purpose of arraignment but not for the purpose of paying a fine, whether a trial court’s acknowledgement that it viewed the Presentence Investigation Report satisfies
{¶2} On March 5, 2010, Bernadine was indicted on four counts of Trafficking in Cocaine, two counts of Complicity to Trafficking in Cocaine, one count of Complicity to Trafficking in Marijuana, one count of Possessing Criminal Tools, one count of Unlawful Sale of a Dangerous Drug, and one count of Permitting Drug Abuse.
{¶3} On March 10, 2010, the trial court issued a Judgment Entry, stating that the court “finds [Bernadine] is indigent and hereby appoints” counsel to represent Bernadine.
{¶4} On May 20, 2010, Bernadine entered a written plea of guilty to one count of Trafficking in Cocaine, a felony of the second degree in violation of
{¶5} On June 28, 2010, the trial court held a sentencing hearing. During this hearing, Bernadine’s counsel stated that Bernadine had an ongoing drug problem but had not had a conviction since 2005. He also stated that she had been seeking treatment and was doing well with her sobriety. Bernadine made a statement and explained that she had been under a lot of stress with her family, had been unable to
{¶6} At the hearing, James Stephens, Bernadine’s caseworker for over two years, made a statement that Bernadine seemed very motivated to recover from her drug addiction. Bernadine’s sister, Debra Burrows, also made a statement that Bernadine was doing well in her recovery.
{¶7} The State asserted that Bernadine had prior drug-related convictions, including two for Trafficking in Cocaine. The State also noted that in this case, Bernadine sold drugs on several different dates to undercover officers. Based on the foregoing, the State recommended that Bernadine be given at least an eight year sentence. During the hearing, the court stated that Bernadine was making “excuses” for her behavior.
{¶8} On June 29, 2010, the trial court entered a Judgment Entry, sentencing Bernadine to a term of seven years for Trafficking in Cocaine and seven years for the second-degree felony count of Complicity to Trafficking in Cocaine. These two terms were to run concurrently. The court also sentenced Bernadine to a term of one year for the third-degree felony count of Complicity to Trafficking in Cocaine, to run consecutively with the seven year term, for a total term of eight years of imprisonment. The court also assessed a $10,000 drug fine, and court costs, to be paid within fifteen years, and ordered Bernadine to pay $1,180 in restitution to the Portage County Drug Task Force.
{¶9} On July 22, 2010, Bernadine filed a Motion for Waiver of Fines, Restitution and Costs Assessed to Indigent Defendant. Bernadine asserted that because she was found indigent by the trial court on March 10, 2010, the $10,000 fine, $1,180 in
{¶10} Bernadine timely appeals and asserts the following assignments of error:
{¶11} “[1.] The trial court erred in imposing a mandatory fine upon appellant.
{¶12} “[2.] The trial court erred in imposing a $10,000.00 drug fine and ordering restitution of $1,180.00 upon appellant without considering appellant’s present and future ability to pay the financial sanction or fine.
{¶13} “[3.] The trial court erred in imposing more than a minimum prison sentence because it is contrary to law and an abuse of discretion.”
{¶14} In her first assignment of error, Bernadine argues that the trial court erred in imposing a mandatory fine, as well as denying her Motion for Waiver, because she had been determined to be indigent by the trial court prior to sentencing.
{¶15} The State argues that the trial court’s finding of indigency was related to her right to counsel and not to her ability to obtain a waiver of a mandatory fine.
{¶16} A court’s imposition of a mandatory fine is reviewed under an abuse of discretion standard. State v. Gipson, 80 Ohio St.3d 626, 630, 1998-Ohio-659; State v. Kidd, 11th Dist. No. 2006-L-193, 2007-Ohio-4113, at ¶82.
{¶17} “For a first, second, or third degree felony violation of any provision of Chapter 2925 *** 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
{¶18} “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.”
{¶19} In this case, the record shows that the sole Affidavit of Indigency, filled out by Bernadine prior to the appointment of trial counsel, was not properly filed with the trial court. Although Bernadine indicated in her brief that she submitted an Affidavit of Indigency with the court prior to sentencing, a copy of this Affidavit is not found to be included in the record, except where attached to Bernadine’s Motion for Waiver of Fines, Restitution and Costs Assessed to Indigent Defendant. It is not recorded on the trial court’s docket or filed separately in the trial court file with a time stamp or endorsed by the clerk, as required. The only copy found in the record, attached to the Motion for
{¶20} Bernadine argues that because the trial court found her to be indigent, it should not have ordered her to pay a mandatory fine or costs.
{¶21} However, we note that Bernadine was found to be indigent during arraignment, for the purposes of appointing trial counsel. This court has distinguished between indigency “as it relates to a defendant’s constitutional right to counsel and proof of indigency required to avoid a mandatory statutory fine,” holding that a trial court may find a defendant indigent for the purposes of appointing counsel but still find him able to pay a future fine. Grissom, 2002-Ohio-5154, at ¶¶34-35; State v. McDowell, 11th Dist. No. 2001-P-0149, 2003-Ohio-5352, at ¶70 (the “trial court’s finding that appellant was an indigent requiring appointment of counsel is irrelevant to our determination of whether appellant was an indigent and entitled to avoid a mandatory fine”). Therefore, the trial court did not abuse its discretion when finding Bernadine indigent for the purposes of appointing counsel but not for the purposes of waiving the mandatory fine.
{¶22} Bernadine’s first assignment of error is without merit.
{¶23} In her second assignment of error, Bernadine argues that the trial court erred by imposing the $10,000 fine and $1,180 in restitution because the court did not consider her present and future ability to pay the fine and restitution.
{¶24} The State argues that Bernadine did not meet her burden under plain error to prove that the court erred in ordering her to pay a fine and restitution. The State also
{¶25} “Before imposing a financial sanction under section 2929.18 of the Revised Code ***, the court shall consider the offender’s present and future ability to pay the amount of the sanction or fine.”
{¶26} We note that Bernadine failed to object to the trial court’s order to pay restitution and the mandatory fine. Failure to object to the court’s order of restitution or fines constitutes a waiver of all error except plain error. Bielek, 2010-Ohio-5402, at ¶13; State v. Brantley, 8th Dist No. 94508, 2010-Ohio-5760, at ¶12.
{¶27}
{¶28} “[W]hen the record indicates a court has considered a pre-sentence investigation report detailing pertinent financial information or when a transcript reflects that a court has considered the defendant’s ability to pay, the court has adequately
{¶29} In this case, there is no specific indication in either the transcript of the sentencing hearing or in the sentencing Judgment Entry that the trial court considered Bernadine’s present and future ability to pay the fines and restitution ordered by the court. However, the trial court did indicate in its Judgment Entry that it reviewed the PSI. The PSI included information regarding Bernadine’s age and physical health. In addition, it included information about her current employment and the amount of money she makes monthly. The PSI also included information about her educational
{¶30} Bernadine’s second assignment of error is without merit.
{¶31} In Bernadine’s third assignment of error, she argues that although her sentence on each charge is within the statutory ranges, the seven year sentences are close to the maximum allowed and the trial court failed to comply with the rules and statutes when imposing her sentence.
{¶32} The State argues that Bernadine has failed to rebut the presumption that the trial court considered the appropriate sentencing criteria.
{¶33} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court held that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at paragraph seven of the syllabus. In light of Foster, this court has held that the trial court has full discretion to sentence within the statutory ranges. State v. Weaver, 11th Dist. No. 2006-L-113, 2007-Ohio-1644, at ¶33; State v. Martin, 11th Dist. No. 2006-L-191, 2007-Ohio-2579, at ¶19; State v. Sanders, 11th Dist. No. 2006-L-222, 2007-Ohio-3207, at ¶18.
{¶35} A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. “The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender.”
{¶36} There is no “mandate” for the sentencing court to engage in any factual finding under these statutes. Rather, “[t]he court is merely to ‘consider’ the statutory factors.” Foster, 2006-Ohio-856, at ¶42. Post-Foster, this court has adopted the holding of the Ohio Supreme Court in State v. Adams (1988), 37 Ohio St.3d 295, that “[a] silent record raises the presumption that a trial court considered the factors contained in
{¶37} In this case, the record supports the inference that the trial court properly considered the factors in
{¶38} Moreover, although the trial court did not specifically address the statutory factors on the record, it is presumed that the court considered such factors, especially in light of the evidence in the record. It is Bernadine’s obligation to rebut such a presumption. State v. Nenzoski, 11th Dist. No. 2007-P-0044, 2008-Ohio-3253, at ¶63 (“[t]he burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria”) (citation omitted). Bernadine failed to do so and is unable to show that the court failed to consider the statutory factors.
{¶39} In addition, Bernadine’s entence of seven years for Trafficking in Cocaine and seven years for Complicity to Trafficking in Cocaine falls within the prescribed range for a felony of the second degree, which is between two and eight years.
{¶40} Although Bernadine’s seven year sentences were close to the maximum, the trial court was not required to make findings or explain its reasoning for imposing such a sentence. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, at paragraph three of the syllabus (“[t]rial courts have full discretion to impose a prison sentence within the statutory range and are [not] required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences”). Therefore, the trial court did not abuse its discretion in imposing the eight year total sentence.
{¶41} Bernadine’s third assignment of error is without merit.
{¶42} For the foregoing reasons, the Judgment Entry of the Portage County Court of Common Pleas, sentencing Bernadine to a total term of eight years of imprisonment and ordering her to pay a $10,000 fine and $1,180 in restitution to the Portage County Drug Task Force, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.