STATE OF OHIO v. DAKOTA SKIRVIN
Appellate Case No. 2017-CA-26; Trial Court Case No. 2016-CR-193
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
May 24, 2019
2019-Ohio-2040
WELBAUM, P.J.
ALEX KOCHANOWSKI, Atty. Reg. No. 0090940, 6302 Kincaid Road, Cincinnati, Ohio 45213 Attorney for Defendant-Appellant
OPINION
Rendered on the 24th day of May, 2019.
Facts and Course of Proceedings
{2} On October 5, 2016, Skirvin pled guilty to one count of burglary in violation of
{3} On August 9, 2017, approximately nine months after the trial court sentenced Skirvin to community control sanctions, Skirvin‘s probation officer filed a “Notice of Supervision Violation” indicating that Skirvin had committed ten community control violations. On August 14, 2017, the trial court held an arraignment on the alleged violations, during which Skirvin did not contest the existence of probable cause to believe that he had violated the terms of his community control. Because the allegations were uncontested by Skirvin, the trial court found that probable cause existed to hold a community control violation hearing.
{4} On August 21, 2017, the trial court held the community control violation hearing. At this hearing, the State presented testimony from Skirvin‘s probation officer, Patrick Powell. Powell testified regarding the details of each community control violation alleged in the “Notice of Supervision Violation.” Following Powell‘s testimony, the trial court found Skirvin guilty of each alleged violation.
{5} After finding Skirvin guilty of the violations, the trial court revoked community control and sentenced Skirvin to 30 months in prison with a mandatory, three-year term of post-release control. The trial court also ordered Skirvin to pay a $250 fine, court costs, and court-appointed counsel fees. When imposing those financial obligations, the trial court stated the following at Skirvin‘s sentencing hearing:
Court has reviewed your present and future ability to pay financial obligations before imposing a financial sanction on you. Court finds that you are employable and in good health. You remain liable for the court costs, fines, and court-appointed legal fees and expenses that were
previously imposed in your earlier case. * * * You are also ordered to pay back the cost of the community control violation case. The legal fees of the community control violation case rather. And the legal fees will be separately collected by the Clerk. They are not to be taxed as part of court costs.
Sentencing Trans. (Aug. 21, 2017), p. 31-32.
{6} The trial court made similar findings in its corresponding sentencing entry, which stated the following:
In imposing the following financial obligations upon the Defendant, the court has reviewed and considered the information contained in the presentence investigation report (relating to the Defendant‘s age, health, education and employment history) and the statements of the Prosecutor, Defense Counsel and Defendant in considering the Defendant‘s present and future ability to pay the amount of the financial obligation before imposing such a financial sanction.
R.C. 2929.19(B)(5) .* * *
Defendant remains liable for the amount of court-appointed legal fees and expenses originally imposed in the initial Journal Entry of Judgment, Conviction and Sentence. Defendant is ordered to pay back the cost of the legal fees and expenses in the community control violation case and those fees and expenses shall be separately collected by the Clerk.
R.C. 2941.51(D) .
Journal Entry, Docket No. 51, p. 7-8.
First Assignment of Error
{8} Under his first assignment of error, Skirvin contends that the trial court erred in ordering him to pay court-appointed counsel fees without making an explicit finding on the record regarding his present and future ability to pay. Skirvin also argues that the trial court erred by failing to specify the amount of court-appointed counsel fees he could reasonably be expected to pay.
{9}
{10} To properly impose court-appointed counsel fees, the trial court must (1) consider the defendant‘s ability-to-pay and the amount thereof, and (2) notify the defendant of the imposition of court-appointed counsel fees at sentencing. Id. at ¶ 9, citing State v. Springs, 2015-Ohio-5016, 53 N.E.3d 804, ¶ 10 (2d Dist.). (Other citations omitted.) “[A] trial court errs when it orders a defendant to pay court-appointed counsel fees without notifying the defendant of that requirement at sentencing and determining the defendant‘s ability to pay those fees.” (Citation omitted.) State v. Mitchell, 2d Dist. Clark No. 2014-CA-108, 2016-Ohio-1422, ¶ 24.
{11} This court has recently held that the ability-to-pay determination for court-appointed counsel fees cannot be inferred from a trial court‘s statement that it has reviewed a presentence investigation report that contains information relevant to that determination. State v. Taylor, 2018-Ohio-2858, 117 N.E.3d 887, ¶ 20 (2d Dist.). Rather, this court concluded that, “prior to imposing court-appointed counsel fees, the trial court must make an explicit finding that a defendant has or reasonably may be expected to have the means to pay some or all of the cost of his or her legal representation.” Id. at ¶ 21. This court also held that “the trial court is required to specify the amount of appointed-counsel fees that a defendant can or reasonably may be expected to pay.” Id.
{12} Since there is nothing in the language of
{13} The dissent in Taylor further noted that this court has specifically held that a trial court may comply with its duty under
{14} After the decision in Taylor was released, this court certified a conflict between Taylor and one of the Twelfth District cases cited in the Taylor dissent, namely, Christman. The Supreme Court of Ohio subsequently accepted the certified conflict for review. See State v. Taylor, 154 Ohio St.3d 1421, 2018-Ohio-4495, 111 N.E.3d 19. Therefore, given the Supreme Court‘s decision to accept the certified conflict for review, the issue of whether a trial court must make an explicit finding that the defendant has or reasonably may be expected to have the means to pay some or all of the costs of his legal representation is currently pending before the Supreme Court.
{15} Although this writer authored the dissent in Taylor and believes that Taylor was wrongly decided, the doctrine of stare decisis requires this court to adhere to Taylor as the law of this district. ” ‘The doctrine of stare decisis is designed to provide continuity and predictability in our legal system. We adhere to stare decisis as a means of thwarting the arbitrary administration of justice as well as providing a clear rule of law by which the citizenry can organize their affairs.’ ” State v. Lindsey, 2d Dist. Montgomery No. 24943, 2012-Ohio-3105, ¶ 20, quoting Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 4-5, 539 N.E.2d 103 (1989).
{16} In this case, the trial court specifically indicated that it had considered Skirvin‘s present and future ability to pay his financial obligations by reviewing the presentence investigation report and the parties’ statements. However, the trial court made no explicit finding regarding Skirvin‘s ability to pay his court-appointed counsel fees.
{17} As a further matter, we note that the trial court consistently stated that it had reviewed Skirvin‘s present and future ability to pay before imposing a “financial sanction” on him. But, contrary to the trial court‘s statements, an order for the payment of court-appointed counsel fees is not a financial sanction. Springs, 2015-Ohio-5016, 53 N.E.3d 804, at ¶ 9. The trial court also never indicated on the record what amount of court-appointed counsel fees Skirvin could reasonably be expected to pay. This too was contrary to this court‘s holding in Taylor.
{18} Skirvin‘s first assignment of error is sustained.
Second Assignment of Error
{19} Under his second assignment of error, Skirvin contends that when he was resentenced following his community control violation, the trial court improperly blended his obligation to pay court-appointed-counsel fees with his other financial obligations when instructing the Clerk of Court as follows:
Pursuant to OAC 5120-5-03(B), the Champaign County Clerk of Courts is ORDERED to provide the Department of Rehabilitation and Correction with a certified copy of judgment of the Defendant‘s total amount of financial obligations due and owing (i.e. restitution, court costs, fines, and court-appointed legal fees and expenses) as set forth within this journal entry.
{20} As demonstrated within the trial court‘s August 21, 2017 sentencing entry, the trial court specifically ordered all of Skirvin‘s financial obligations to be paid by having the Department of Rehabilitation and Correction withhold funds from his inmate account as permitted by
{21} It is well established that a county‘s right of action under
{22} The Supreme Court of Ohio has held that “[w]hen collecting court costs from
{23} Given that appointed-counsel fees and court costs are both civil obligations that must be collected through civil enforcement mechanisms, and given that the Supreme Court of Ohio explicitly held that court costs may be collected using the collection procedure under
{24} As previously noted, the trial court ordered the Clerk of Court to “provide the
{25} Skirvin‘s second assignment of error is overruled.
Conclusion
{26} Having sustained Skirvin‘s first assignment of error, the portion of the trial court‘s sentence ordering Skirvin to pay court-appointed counsel fees is reversed and the matter is remanded to the trial court for resentencing in accordance with this opinion. In all other respects, the judgment of the trial court is affirmed.
DONOVAN, J., concurs in judgment only.
HALL, J., concurs.
Samuel Adam Usmani
Alex Kochanowski
Dakota Skirvin
Hon. Nick A. Selvaggio