STATE OF OHIO, Plаintiff-Appellee vs. JAVIER B. COTTO, Defendant-Appellant
No. 107159
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 21, 2019
2019-Ohio-985
BEFORE: Headen, J., S. Gallagher, P.J., and E.A. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court оf Common Pleas, Case No. CR-17-621437-A
Oscar E. Rodriguez
1223 West 6th Street, Suite 303
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
Patrick J. Lavelle
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant Javier B. Cotto (“Cotto“) appeals from his sentence following a guilty plea. For the reasons thаt follow, we affirm.
Procedural and Factual History
{¶2} On September 26, 2017, Cotto and his nephew, codefendant Josean Navarro (“Navarro“) were charged in a ten-count indictment. Cotto was сharged as follows: one count of trafficking, a felony of the first degree, in violation of
{¶3} On September 28, 2017, Cotto was declared indigent and counsel was appointed.
{¶4} On Marсh 21, 2018, Cotto pleaded guilty to an amended count of drug trafficking, a felony of the first degree, with a one-year firearm specification and various forfeiturе specifications. The remaining counts and specifications against Cotto were nolled. Before accepting Cotto‘s plea, the trial cоurt informed him of the potential consequences of his plea, including the imposition of a mandatory fine. Cotto‘s counsel requested a presentence investigation report. The state and Cotto recommended a seven-year prison sentence to the court.
Law and Analysis
{¶6} In his sole assignment of error, Cotto argues that the trial court erred by imposing a mandatory fine. Specifically, he argues that he had been found indigent prior to sentencing and therefore should have been found indigent for purposes of the mandatory fine as well.
{¶7} As an initial matter, we must address the nature of our review of the imposition of a mandatory fine upon a defendant. Ohio courts have consistently held that because trial courts have broad discretion when imposing financial sanctions upon a defendant, appellate courts review the imposition of financial sanctions for abuse of discretion. State v. Theodorou, 8th Dist. Cuyahoga No. 105630, 2017-Ohio-9171, ¶ 23; State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-Ohio-3002, ¶ 5, citing State v. Schneider, 8th Dist. Cuyahoga No. 96953, 2012-Ohio-1740, ¶ 9, citing State v. Weyand, 7th Dist. Columbiana No. 07-CO-40, 2008-Ohio-6360, ¶ 7.
{¶8}
If the violation of division (A) of this section is a felony of the first, second, or third degree, the court shall impose upon the offender the mandatory fine spеcified for the offense under division (B)(1) of section 2929.18 of the Revised Code unless, as specified in that division, the court determines that the offender is indigent.
For a first, seсond, or third degree felony violation of any provision of Chapter 2925 * * * of the Revised Code, the sentencing court shall impose upon the offender a mаndatory 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.
Before imposing a mandatory fine pursuant to
{¶11} In addition to the defendant filing a timely affidavit of indigency, the sentencing court must find that the offender is an indigent person and is unable to pay the mandatory fine in order to waive imposition of a mandatory fine. Id. While the statute requires the court to consider the defendant‘s present and future ability to pay the fine, “there are no express factors that must be taken into сonsideration or findings regarding the offender‘s ability to pay that must be made on the record.” State v. Hampton, 8th Dist. Cuyahoga No. 103992, 2016-Ohio-5419, ¶ 7, citing State v. Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318 (4th Dist.2000).
{¶13} To avoid the imposition of a mandаtory fine, “‘the burden is upon the offender to affirmatively demonstrate that he or she is indigent and is unable to pay the mandatory fine.‘” Gipson, 80 Ohio St.3d at 635, quoting State v. Ruzicka, 8th Dist. Cuyahoga No. 64476, 1994 Ohio App. LEXIS 73 (Jan. 13, 1994). We agree with the trial court that Cotto‘s assertion that it will be difficult to find future employment because of his mental illness and criminal record is insufficient to meet this burden. Cotto has not clearly and convincingly established that the imposition of the fine was contrary to law. Therefore, Cotto‘s assignment of error is overruled.
{¶14} Judgment affirmed.
It is ordеred that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeаl.
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.
RAYMOND C. HEADEN, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR