THE STATE OF OHIO, APPELLANT, v. TAYLOR, APPELLEE.
Nos. 2018-1243 and 2018-1315
Supreme Court of Ohio
Decided December 22, 2020
Slip Opinion No. 2020-Ohio-6786
FISCHER, J.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-6786
THE STATE OF OHIO, APPELLANT, v. TAYLOR, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Taylor, Slip Opinion No. 2020-Ohio-6786.]
Criminal law—Court-appointed-counsel fees—
(Nos. 2018-1243 and 2018-1315—Submitted July 7, 2020—Decided December 22, 2020.)
APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County, No. 27700, 2018-Ohio-2858.
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FISCHER, J.
{¶ 1} In this certified-conflict case from the Second District Court of Appeals, we address whether a trial court, pursuant to
{¶ 2} We аnswer the certified-conflict question in the negative and hold that under
{¶ 3} Because the Second District based its decision on its determination that there is a statutory explicit-findings requirement and thus did not properly review the trial court’s assessment of court-appointed-counsel fees, we reverse its judgment. And because the trial court erred in imposing court-appointed-counsel fees upon Taylor in his sentence, we also vacate the portion of the sentencing entry imposing those fees.
BACKGROUND
The trial court orders Taylor to pay court-appointed-counsel fees
{¶ 4} After appellee, Robert Taylor, was indicted, the trial court determined that Taylor was indigent and appointed counsel to represent him. Taylor pleaded guilty to amended charges of kidnapping and gross sexual imposition against a person under the age of 13.
{¶ 5} After ordering and reviewing Taylor’s presentence-investigation report (“PSI”), the trial court opted to impose the agreed-upon term of community control. The trial court also ordered Taylor to pay a $250 supervision fee, court costs as determined by the Montgomery County clerk of court, and $130 to the assigned-counsel-budget fund. The cоurt then stated, “I’m also going to enter judgment against [Taylor] for the * * * costs of the prosecution as I just went over.” (Emphasis added.)
{¶ 6} The $130 court-appointed-counsel fee was listed in the “Financial Obligations” section of Taylor’s sentencing entry, along with the supervision fee and court costs. The court-appointed-counsel fee was also included on the second page of the entry in the “Reimbursements Payable” section. The entry also provided, “If applicable in this case, defendant is ordered to pay any restitution, all costs of prosecution, stipulated fines, and any fees permitted pursuant to
The appellate court reverses the judgment of the trial court
{¶ 7} On appeal, Taylor asserted that the trial court erred in ordering him to pay $130 toward appointed-counsel fees and that his counsel was ineffective for failing to challenge the imposition of those fees. Taylor argued that his PSI did not conclusively establish that he had the ability to pay, since it showed that he was receiving Social Security disability benefits with a limited monthly stipend and had no other source of income. Taylor also asserted that the trial court made no finding about his ability to pay. Taylor also argued that his trial counsel was ineffective for failing to raise the issue before or during sentenсing.
{¶ 8} The Second District held that the trial court could not order Taylor to pay the court-appointed-counsel fees without first considering his financial ability to do so. The court determined that because “
presumption that the county will pay appointed counsel’s fees and expenses.” 2018-Ohio-2858, 117 N.E.3d 887, ¶ 21. It reasoned that “[g]iven this presumption, * * * 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” before assessing those fees against him. Id. Further, the court explained that someone other than the defendant would bear the burden of proving that the exception should apply. Id. at ¶ 13. The Second District concluded that the duty to pay remains fully with the county unless the record reflects a determination by the trial court regarding the defendant’s ability to pay, as well as evidence supporting the court’s determination. Id. at ¶ 13, 15.
{¶ 9} The Second District noted that although several other courts have similarly concluded that a trial court must determine a defendant’s ability to pay prior to imposing any appointed-counsel fees, they have disagreed on exactly how that determination must be reflected in the record. The court observed that the Third and Sixth District Cоurts of Appeals have held that a trial court must support its determination with specific findings articulated on the record. Id. at ¶ 19, citing State v. Ramsey, 3d Dist. Marion No. 9-10-55, 2012-Ohio-134, ¶ 22, and State v. Talley, 2016-Ohio-8010, 74 N.E.3d 868, ¶ 44 (6th Dist.). But the Twelfth District has held that in order to comply with
{¶ 10} The Second District agreed with the Third and Sixth Districts, holding that in order to overcome the statutory presumption that the county must pay for appointed counsel, a trial court must make “an explicit finding” on the record regarding the defendant’s ability to pay and also specify the amount the defendant can reasonably be expected to pay. Id. at ¶ 21. The court determined
that Taylor’s сlaim of ineffective assistance of counsel based on the issue of court-appointed-counsel fees was moot. Id. at ¶ 27.
{¶ 11} The Second District certified that its judgment was in conflict with the Twelfth District’s judgment in Christman.
We recognized that a conflict exists, accepted the corresponding discretionary appeal, and ordered supplemental briefing
{¶ 12} We determined that a conflict exists and ordered the parties to brief the following question:
Prior to ordering a defendant to pay court-appointed counsel fees pursuant to
R.C. 2941.51(D) , must the trial court make an explicit finding that the defendant has or reasonably may be expected to have the means to pay some or all of the cost of his оr her legal representation?
154 Ohio St.3d 1421, 2018-Ohio-4495, 111 N.E.3d 19.
{¶ 13} We also accepted the state’s discretionary appeal, in which it asserted a proposition of law that requires us to address the same issue as the conflict question. See 154 Ohio St.3d 1421, 2018-Ohio-4495, 111 N.E.3d 20. We sua sponte consolidated the two matters. Id.
{¶ 14} After oral argument, we sua sponte ordered supplemental briefing on the following issues:
(1) whether
158 Ohio St.3d 1525, 2020-Ohio-3069, 145 N.E.3d 318.
ANALYSIS
{¶ 15} Our review is de novo. See State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8 (questions of statutory interpretation are questions of law that are reviewed de novo). And here, it necessarily begins with
{¶ 16} The General Assembly provided, in
{¶ 17} Thus, under the plain language of the statute, the person represented by court-appointed counsel may be required to pay some or all of the expenses of that representation. We next must determine who may impose those fees, how those fees may be imposed, and when those fees may be imposed.
The trial court has authority to impose court-appointed-counsel fees
{¶ 18} In our first question for supplemental briefing, we аsked whether the trial court in a criminal case has the authority to impose court-appointed-counsel fees.
{¶ 19} Taylor argues that the trial court in a criminal case is not authorized to impose court-appointed-counsel fees, because
{¶ 20} Taylor also compares
{¶ 21} The state does not counter Taylor’s argument about the lack of express authorization language in the statute. Instead, it simply relies on the statute’s requirement that a person who received court-appointed counsel must pay the county what that person can reasonably be expected to pay and points to several appellate court decisions that it maintains support its position that a trial court has authority tо impose these fees.
{¶ 22} Amicus curiae, Office of the Ohio Public Defender, provides a slightly different perspective, pointing this court to
Assembly, in
{¶ 23} A statute’s silence or lack of clarity on an issue often connotes ambiguity. State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 12; Sheet Metal Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s Refrig., Heating & Air Conditioning, Inc., 122 Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 29. When there is some doubt or ambiguity in a statutе, we look to the rules of statutory interpretation. See State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 585, 651 N.E.2d 995 (1995).
{¶ 24} The answer to our question becomes clear when we read
R.C. 2941.51(D) does not require the trial court to make explicit findings
{¶ 25} Next, we must address how the trial court is to assess the court-appointed-counsel fees against a defendant; specifically, we must determine whether the trial court is required to make explicit findings on the record prior to the assessment of those fees.
{¶ 26} The state argues that the language of
{¶ 27} “[T]he proper role of a court is to construe a statute as written without adding criteria not supported by the text.” State v. Taylor, ___ Ohio St.3d ___, 2020-Ohio-3514, ___ N.E.3d ___, ¶ 9. Here, there is simply no textual basis to support requiring a trial court to make explicit findings on the record regarding the defendant’s ability to pay before assessing court-appointed-counsel fees.
{¶ 28} Nonetheless, although
{¶ 29} And as for the trial court’s consideration of the assessment of court-appointed-counsel fees,
{¶ 30} The Second District erred in holding that the trial court committed error by not making explicit findings on Taylor’s ability to pay the court-appointed-counsel fees.
Court-appointed-counsel fees cannot be imposed as a part of a defendant’s sentence
{¶ 31} The next question we posed to the parties was whether the court-appointed-counsel fees could be imposed at sentencing and included as a part of the defendant’s sentence in the judgment of conviction.
{¶ 32} The statute is silent as to when a court is to impose court-appointed counsel fees. However, the language used by the General Assembly in
judgment for the fees that the court finds the defendant has the ability to pay); State v. Warner, 9th Dist. Lorain No. 96CA006534, 2001 WL 1155698, *3-4 (Sept. 21, 2001).
{¶ 33}
{¶ 34} The General Assembly has also been quite clear that court-appointed-counsel fees are not to be assessed as a part of the defendant’s sentence. First,
{¶ 35} Second, the General Assembly has specifically required courts to include financial sanctions, fines, and court costs as a part of the defendant’s sentence. See
State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, ¶ 23-24. We “cannot generally add a requirement that does not exist in the Constitution or a statute.” State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 45. Therefore, because there is no statutory authority allowing a trial court to “sentence” a defendant to pay court-appointed-counsel fees, such an order cannot be included as a part of the defendant’s sentence.
{¶ 36} Our conclusion is also supported by
{¶ 37} Therefore, we conclude that while such fees may be assessed at the sentencing hearing, they cannot be included as a part of the offender’s sentence. Though, if the assessment of the fees is included in the sentencing entry, the court must note that the assessment of the court-appointed-counsel fees is a civil assessment and is not part of the defendant’s sentence. To avoid confusion, the best practice would be to include the order in a separate entry, apart from the sentence.
{¶ 38} In this case, the trial court appropriately assessed the fees at the sentencing hearing but improperly listed the fees as “financial obligations” and as “reimbursement” in the sentencing entry. The court-appointed-counsel fees arе not
“reimbursement” in the criminal context, as reimbursement refers to “costs.” See
CONCLUSION
{¶ 39} We answer the certified-conflict question in the negative and hold that a trial court need not make explicit findings prior to assessing court-appointed-counsel fees upon a person who received representation. We determine that the trial court may assess those fees at sentencing but cannot include the fees as a part of the defendant’s sentence. We reverse the judgment of the Second District Court of Appeals and vacate the portion of the sentencing entry imposing court-appointed-counsel fees upon Taylor.
Judgment reversed
and trial-court order vacated in part.
O’CONNOR, C.J., and FRENCH, J., concur.
DEWINE, J., concurs in part and dissents in part, with an opinion joined by KENNEDY, J.
DONNELLY, J., concurs in part and dissents in part, with an opinion joined by STEWART, J.
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THE STATE OF OHIO, APPELLANT, v. TAYLOR, APPELLEE.
Nos. 2018-1243 and 2018-1315
Supreme Court of Ohio
Decided December 22, 2020
Slip Opinion No. 2020-Ohio-6786
DEWINE, J.
DEWINE, J., concurring in part and dissenting in part.
{¶ 40} I agree that the court-appointed-counsel fees imposed upon Robert Taylor were improperly included as part of the costs of the criminal prosecution, sо I concur in this court’s judgment reversing the judgment of the Second District Court of Appeals and vacating the portion of the trial court’s sentencing entry that includes the court-appointed-counsel fees. But I see no reason to leave the trial court in limbo about what it should do.
{¶ 41} Taylor did not object to the trial court’s imposition of the appointed-counsel fees, so he has forfeited any claim that the trial court abused its discretion in assessing those fees. And because the fee order is civil in nature, he is not entitled to plain-error review.1 See Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099 (1997) (plain-error review is disfavored with respect to civil matters and should be invoked in only “the extremely rare case involving exceptional circumstancеs” in which the error calls into question “the legitimacy of the underlying judicial process itself” [emphasis in original]). I would therefore remand the case to the trial court for it to issue a separate entry imposing the fees. I respectfully dissent from that part of this court’s judgment that does otherwise.
KENNEDY, J., concurs in the foregoing opinion.
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DONNELLY, J., concurring in part and dissenting in part.
THE STATE OF OHIO, APPELLANT, v. TAYLOR, APPELLEE.
Nos. 2018-1243 and 2018-1315
Supreme Court of Ohio
Decided December 22, 2020
Slip Opinion No. 2020-Ohio-6786
DONNELLY, J.
{¶ 42} I concur in the court’s judgment to the extent that it reverses the judgment of the Second District Court of Appeals and vacates the trial court’s assessment of appointed-counsel fees against appellee, Robert Taylor. But the trial court’s order assessing those fees—to the extent that it is authorized or reviewable at all—is plainly erroneous. The fee order should be vacated outright on the merits, leaving the trial court with no opportunity to reassess appointed-counsel fees.
{¶ 43} A few things need to happen before an indigent criminal defendant “shall pay the county” for appointed-counsel fees pursuant to
{¶ 44} I am not convinced that at the time of a criminal defendant’s sentencing hearing, the trial court has the authority to do more than notify the defendant that the county might send a bill later to recoup some of the appointed-counsel fees that the county paid to defense counsel. Nothing in the Revised Code explicitly grants trial courts the authority to assess appointed-counsel fees as part of a criminal case. And it is telling that when the General Assembly has wanted to grant such authority for other financial assessments in a criminal case, it has done so explicitly. See
a $25 fee for applications for a public defender or appointed counsel). It is also telling that the General Assembly explicitly empowered the commission to regulate the assessment of appointed-counsel fees in
{¶ 45} Although the lead opinion finds implied authority for trial courts to impose appointed-counsel fees in
The аpplication fee assessed pursuant to division (A) of this section is separate from and in addition to any other amount assessed against a person who is found to be able to contribute toward the cost of the person’s legal representation pursuant to division (D) of section 2941.51 of the Revised Code.
By its plain terms,
{¶ 46} But assuming for the sake of argument that a trial court does have the authority at the time of sentencing to enter a civil money judgment against the defendant and in favor of the county for fees the county has not yet paid, the judgment would need to comply with the county’s appointed-counsel-fee-recoupment program, which in turn must comply with the standards promulgated
by the Ohio Public Defender Commission and the Ohio Public Defender pursuant to
{¶ 47} Pursuant to
{¶ 48} The commission makes Ohio’s individual counties responsible for developing their own recoupment programs “to recover a portion of the expense of appointing counsel to a person whose gross income exceeds one hundred twenty five per cent of the federal poverty level or to a child whose parents’ gross income exceeds one hundred twenty five per cent of the federal poverty level.” Id. Although counties are free to creatе their own procedures for the assessment and collection of appointed-counsel fees, the rules must be in line with the standards in
{¶ 49} Guidelines published by the Ohio Public Defender indicate that counties are allowed to involve trial-court judges and the county clerk of courts in the process of assessing and collecting fees from criminal defendants. See Office of the Ohio Public Defender County Indigent Fee/Cost Recoupment Programs, https://opd.ohio.gov/static/County+Resources/Recoupment/rm_recoupment_no+guidelines.pdf (accessed Oct. 26, 2020) [https://perma.cc/9S74-3D7V]. The guidelines do not, however, indicate that cоunties are required to do so. It is
therefore possible that the recoupment program for a given county might not involve fee assessment by a trial-court judge.
{¶ 50} Additionally, the Ohio Public Defender’s guidelines indicate that counties should set a standard payment system when developing a recoupment program, with the following examples given: (1) a flat fee, under which the defendant would be charged a fixed nominal amount, such as $75, and (2) a sliding-scale fee, under which the defendant would pay based on the offense(s) charged, such as $100 for a felony and $50 for a misdemeanor. Id. As a result of the discretion afforded to individual counties in setting their fee schedules, the amount that a criminal defendant may reasonably be expected to pay will vary by location.
{¶ 51} Given the foregoing examples of the ways in which the recoupment rules of each county could vary, we would need to know the local recoupment rules enacted by Montgomery County in order to know whether, when, and how the trial court may assess appointed-counsel fees against a criminal defendant. Montgomery County’s recoupment program is not a published document and is not currently available on legal databases or local government websites. We do not know if the trial court is the proper entity, if a criminal sentencing hearing is the proper time, or if $130 is the proper amount to assess against a defendant in Taylor’s circumstancеs.
{¶ 52} Although we do not know the specifics of Montgomery County’s recoupment program, as noted above, we do know that it must comply with certain general requirements and prohibitions set out in
(“SSDI”) payments. At the time of Taylor’s criminal sentencing decision, the individual poverty level was $12,060. Annual Update of the Health and Human Services Poverty Guidelines, 82 Fed.Reg. 8831-8832 (Jan. 31, 2017). A gross income of approximately $8,196 per year in SSDI support is well below the poverty line, let alone the 125 percent mark. Although the trial court may or may not have had the discretion to assess appointed-counsel fees under different circumstances, it was prohibited from assessing those fees in this case.
{¶ 53} I agree with the lead opinion that
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Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Sarah E. Hutnik and Andrew T. French, Assistant Prosecuting Attorneys, for appellant.
Marshall G. Lachman, for appellee.
Timothy Young, Ohio Public Defender, urging affirmance for amicus curiae Officе of the Ohio Public Defender.
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