State v. GipsonState v. Gipson
The requirement of former
{¶ 1} In October 1994, appellee, Nathaniel Gipson, was arrested in Cleveland, Ohio, for possession of two “rocks” of crack cocaine. Following his arrest, Gipson was released on bond. In December 1994, Gipson was indicted by the Cuyahoga County Grand Jury for possession of cocaine (in less than the bulk amount), a drug of abuse, in violation of former
{¶ 2} In May 1995, the matter proceeded to trial before a jury. Following the presentation of evidence, the jury returned its verdict finding Gipson guilty of
{¶ 3} At the July 10 sentencing hearing, the trial court sentenced Gipson to a term of imprisonment and imposed the $1,500 mandatory fine required by former
“[THE COURT:] Okay, Mr. Gipson, I’m ready to go ahead at this point * * * to hear what you have to say, what Mr. Mancino [defense counsel] has to say and [to] hear from the prosecutor [Ms. Maleckor] as to what she may have to say on the appropriate sentence. Are you prepared to go ahead at this time? Prepared to go ahead with the sentencing hearing at this time?
“THE DEFENDANT: Yes.
“THE COURT: Okay, Mr. Mancino, do you want to begin?
“MR. MANCINO: Yes, thank you, Your Honor. Well, with respect to the facts, the Court is well aware of the facts. There was a trial in this case. Of course, the factual situation was a hotly contested issue in this case. The jury believed the
State’s version and he was convicted on this. He’s a young man, doesn’t have any significant record that I can determine from the presentence report. “THE COURT: He apparently has a juvenile record for prior drug trafficking, but anyhow, go ahead.
“MR. MANCINO: He does[;] from the information I have he resides there with his mother and he’s not employed. He had hopes of employment I think at one time and it still may be available where he may have a job with the city. His father is attempting to get him some work but presently he is not employed although he is looking for work. He does have a small child and they are furnishing support for the young child and the child’s mother. To me he doesn’t present a threat to society, to himself or to others.
“THE COURT: Mr. Gipson, what would you like to say?
“THE DEFENDANT: Well, I was trying to get a job, be with my son but I don’t have the job right now.
“THE COURT: Miss Maleckor, would you like to say anything about this case?
“MS. MALECKOR: Your Honor, I know you heard the facts of this case in detail since it did go to trial so I have nothing to add at this point.
“THE COURT: Well, what can I really say? I’ve heard the facts. I think you were guilty. There is no question about that. * * * I am willing to give you a chance, but I want to tell you if I give you this chance and you blow it this time * * * then you are going to go to prison, so what I’m going to do is suspend the sentence of one year at the Lorain Correctional Institution. I’m going to impose the statutory penalty of the $1,500 fine together with court costs.
“I’m going to place you on probation for four years. I’m going to require that you do 90 days on electronic home detention which means that you will be able to leave the home for certain purposes allowed by the Court but not just at your
own pleasure. I’m also going to require that you do the first 90 days as daily reporting where you have a day reporting program * * *. “You’ll have to report every day to the Probation Department. When you’re not doing what the Probation Department tells you to do through the daily reporting effort, you will have to be at home. That’s it. I expect the fine to be paid by cash or community service at the rate of $200 a month, and I expect you to make those payments.
“MR. MANCINO: I have an affidavit on the fine because he’s not working.
“THE COURT: But he’s not going to be indigent for the rest of his life. He’ll be on probation for four years. If he can’t pay this money over the period of four years, there is something really wrong with him. He’s six foot two, 200 pounds, nineteen years old. There ought to be a lot of jobs he can handle, so I don’t see any reason why he can’t pay this. You can file the affidavit. I’m not going to stop that but I don’t regard that as making him unable to pay a fine over the course of probation. Are you retained counsel in this case?
“MR. MANCINO: Yes, I am.
“THE COURT: Have you been paid?
“MR. MANCINO: A small amount.
“THE COURT: If he could come up with the money to hire a lawyer, he ought to know how to come up with the money to pay his fine, and if he doesn’t want to do it by cash, he can do it by community service, so I’ll accept your affidavit but I don’t think it affects the sentence here in any way. I’m also going to suspend his driver’s license for a year.
“MR. MANCINO: Your Honor, we would object to [the suspension of Gipson’s driver’s license]. * * *
“THE COURT: I hear what you’re saying. There is a mandatory law under the statute. The statute [former
R.C. 2925.11(F)(1) ] now requires that his driver’s license be suspended for a minimum of six months and up to five years.“* * *
“THE COURT: So anyhow that’s what I’m going to go [sic, do]. I’m also going to require you to be back in court on November 15th at 8:30 in the morning. I expect all these things will be done.
“* * *
“THE COURT: Court costs must be paid by the end of probation. Now look, let me ask you to do this, Mr. Mancino. You know me, you’ve been in my court a number of times. Your client is getting a break. I think you would not disagree with that.
“MR. MANCINO: I agree with you.
“THE COURT: This is probably one of the few courtrooms where he wouldn’t go to prison after this trial, but I don’t think prison is necessarily justified in this case * * *. * * * I am prepared to accept the statement that he probably has a potential to be a decent person but I’ve extended that opportunity to him. * * * [I]f you play around with this thing and take advantage of this opportunity, then you’re going to prison.”
{¶ 4} Gipson’s sentence and the terms of his probation were set forth in a journal entry dated July 10, 1995. The journal entry was subsequently filed with the clerk of court on July 18. On July 26, Gipson filed a motion to abate the mandatory fine imposed by the trial court. Attached to the motion was the affidavit of indigency that had been signed by Gipson on July 10, i.e., the date of the sentencing hearing. In the affidavit, Gipson alleged, “I am indigent and unable to pay any mandatory fine pursuant to R.C. §2925.03(L) [sic, former
Specifically, while the motion was pending before the trial court, Gipson appealed his conviction and sentence to the court of appeals.
{¶ 5} On appeal, the court of appeals, in a split decision, reversed that portion of the trial court’s judgment which had imposed the mandatory fine and had required, as a condition of probation, that Gipson satisfy the fine through monthly cash payments or community service. The court of appeals’ majority stated that “[a]t the time of sentencing, defendant was unemployed and his affidavit of indigency prior to sentencing was unopposed.” On this basis, the court of appeals’ majority concluded that “the trial court abused its discretion in imposing the fine in futuro given defendant’s indigency.” The court of appeals affirmed the judgment of the trial court in all other respects.
{¶ 6} Judge Patton of the court of appeals, in a concurring and dissenting opinion, joined the court of appeals’ majority in affirming Gipson’s conviction, but dissented from the majority’s decision regarding the mandatory fine. Judge Patton stated, “I find the trial judge did not abuse his discretion by imposing the mandatory fine since he could reasonably find the defendant did not timely file his affidavit of indigency and further could find the totality of the circumstances weighed in favor of rejecting defendant’s affidavit of indigency and imposing the mandatory fine.”
{¶ 7} The cause is now before this court pursuant to the allowance of a discretionary appeal.
{¶ 8} The sole issue in this appeal may be phrased in terms of the following question: Did the trial court abuse its discretion and/or commit an error of law by imposing the mandatory fine and by requiring Gipson to satisfy that fine over the course of his probation? For the reasons that follow, we answer that question in the negative. Therefore, we reverse the judgment of the court of appeals on the issue before us and reinstate the judgment of the trial court in its entirety.
{¶ 9} Statutes throughout R.C. Chapter 2925 provide for the imposition of mandatory fines for certain drug-related offenses, including certain drug abuse offenses in violation of
“(E)(1) Notwithstanding the fines otherwise required to be imposed pursuant to section
2929.11 ,2929.21 , or2929.31 of the Revised Code for violations of this section and notwithstanding section2929.14 or2929.22 of the Revised Code , the court shall impose * * * a mandatory fine of [$1,500] if the violation of this section was a felony of the fourth degree * * *.“* * *
“(E)(5) No court shall impose a mandatory fine pursuant to division (E)(1) of this section upon an offender who alleges, in an affidavit filed with the court prior to his sentencing, that he is indigent and is unable to pay any mandatory fine
imposed pursuant to that division, if the court determines the offender is an indigent person and is unable to pay the fine.” (145 Ohio Laws, Part III, 5782.)
{¶ 10} Former
The Requirement of Filing
{¶ 11} Former
{¶ 12} The court of appeals’ majority apparently determined that Gipson’s affidavit was timely “filed” prior to sentencing because defense counsel had attempted to submit the affidavit to the trial judge at the sentencing hearing. The court of appeals’ majority reached this conclusion even though there is absolutely no indication in the record that the affidavit was formally filed with the clerk of court and time-stamped at any time prior to the filing of the trial court’s sentencing decision. We disagree with the judgment of the court of appeals’ majority on the question of whether Gipson’s affidavit was timely “filed.”
{¶ 13} We hold that the requirement of former
{¶ 14} In the case now before us, the record clearly indicates that Gipson’s affidavit of indigency was never formally filed with the court until it was submitted to the court as part of a motion to abate the mandatory fine.3 The motion to abate
{¶ 15} At oral argument before this court, a question arose whether the state had “waived” the issue concerning the timeliness of the “filing” of Gipson’s affidavit since the state never raised that issue in the court of appeals. However, we believe that the required filing of an affidavit of indigency for purposes of avoiding a mandatory fine is, in effect, a jurisdictional issue. The present and former versions of
II
The Trial Court’s Determination
{¶ 16} Moreover, and in any event, even if Gipson’s affidavit had been filed in a timely manner, the trial court’s decision imposing the mandatory fine and requiring Gipson to satisfy that fine over the course of his probation was not an error of law and/or an abuse of the trial court’s discretion. For purposes of former
{¶ 17} Nevertheless, the court of appeals’ majority, in reversing that portion of the trial court’s judgment imposing the mandatory fine, apparently concluded that the trial court had abused its discretion by requiring payment of the fine in futuro since there was no dispute at the time of the sentencing hearing that Gipson
{¶ 18} With respect to the court of appeals’ reliance on the above-quoted passage from Ruzicka, we note that there is no requirement in either the present or current versions of
{¶ 19} Moreover, the case at bar is clearly distinguishable from Pendleton and Lefever. Those two cases hold that a trial court abuses its discretion by imposing a mandatory fine where an indigent defendant has been sentenced to incarceration and will be unable to pay the statutory fine. For instance, in Lefever, the court of appeals found that a trial court had committed reversible error by imposing a mandatory fine upon an indigent defendant under the following circumstances: “Lefever filed an affidavit of indigency asserting that he could not pay the fines and that he has no assets of any kind. No evidence controverting these was produced. The record also shows that Lefever was sentenced to no less than five nor more than twenty-five years’ incarceration, with five years’ actual incarceration. Because Lefever’s incarceration will prohibit him from retaining an income-producing job, he will not be in a position to pay the fines for at least five years.” Lefever at 309, 632 N.E.2d at 594. Similarly, Pendleton involved a situation where an indigent defendant was sentenced to a term of incarceration and was ordered to pay a mandatory fine. Under these circumstances, the Pendleton court followed the reasoning and holding of Lefever. Pendleton at 787-788, 663 N.E.2d at 396-397. See, also, State v. Gutierrez (1994), 95 Ohio App.3d 414, 418, 642 N.E.2d 674, 676 (a trial court abuses its discretion by imposing a mandatory fine under
{¶ 20} In contrast to Pendleton, Lefever, and Gutierrez, the trial court in this case suspended Gipson’s sentence of incarceration, placed him on probation, and
{¶ 21} Gipson protests, however, that it is never proper for a trial court to consider an offender’s future ability to pay a mandatory fine because, according to Gipson, “[i]t is defendant’s status at the time of sentencing that is determinative whether he is indigent.” However, we do not believe that former
{¶ 22} Accordingly, for the foregoing reasons, we reverse the judgment of the court of appeals on the sole issue before us and reinstate the judgment of the trial court.
Judgment reversed.
Notes
“In addition to any prison term * * * and in addition to any other sanction that is imposed for the offense under this section or sections
“(1)(a) If the violation is a felony of the first, second, or third degree, the court shall impose upon the offender the mandatory fine specified for the offense under division (B)(1) of [
“(B)(1) 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.”