663 N.E.2d 395 | Ohio Ct. App. | 1995
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In exchange for the state's agreement to drop a charge of drug abuse against him, defendant-appellant entered a plea of guilty to one charge of aggravated trafficking pursuant to R.C.
The defendant relies upon R.C.
Pursuant to R.C.
"No court shall impose a mandatory fine pursuant to division (H) 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 that the offender is an indigent person and is unable to pay the fine." See, also, State v. Cravens (1988),
The statute requires and this court has held that the indigency affidavit must be filed prior to sentencing. State v.Edwards (Apr. 10, 1991), Hamilton App. Nos. C-900212 and C-900266, unreported, 1991 WL 50314. However, in this case, in distinction to Edwards, although the court verbally completed its sentence, the sentence had not yet been journalized. The court expressly accepted the affidavit and allowed a hearing to proceed on the issue of indigency. The prosecution raised no objection. Thus, we hold that the issue of indigency was properly and timely before the trial court. Accord State v.Adkins (Feb. 28, 1992), Ashtabula App. No. 91-A-1651, unreported, 1992 WL 191938.
Merely because an offender has filed an affidavit of indigency with the court does not automatically mean that person is indigent. The court must make a finding that the defendant is in fact indigent. State v. Neubert (Nov. 8, 1989), Hamilton App. Nos. C-880674 and C-880663, unreported, 1989 WL 133529. In this case, the trial court made its finding that defendant was not indigent because he was able to hire retained counsel. The record reflects that counsel was retained for the defendant by his stepfather. The court announced before the indigency hearing that "[w]hen attorneys are retained, I impose the fine. If it's a public defender case I don't." We hereby expressly disapprove this policy. See State v. Emrich (Mar. 10, 1995), Clark App. No. 94-CA-0005, unreported, 1995 WL 102891 ("[A] defendant's hiring of private counsel to defend against certain drug offenses is not determinative of his lack of indigency for the purpose of imposing a mandatory fine.").
The state argues that the evidence before the court was sufficient to show that defendant had the financial means to pay the fine. We disagree. The evidence before the court was wholly uncontroverted that the defendant was then unable to pay the fine. We agree with the court of appeals in State v. Lefever
(1993),
Accordingly, defendant's assignment of error is sustained. That part of defendant's sentence ordering him to pay a mandatory fine of $2500 is vacated. The rest of the sentence is to be undisturbed, and we hereby remand this case to the court of common pleas for the entry of judgment accordingly.
Judgment accordingly.
GORMAN, P.J., HILDEBRANDT and BETTMAN, JJ., concur.