2005 Ohio 5766 | Ohio Ct. App. | 2005
{¶ 2} During the months of June and July of 2004, appellant unlawfully obtained and fraudulently issued several checks from his father's business. Appellant was indicted on one count of receiving stolen property, and six counts of forgery, all fifth-degree felonies, and one count of misdemeanor theft. Appellant pled guilty to one count of receiving stolen property and three counts of forgery on October 25, 2004. Appellant waived a presentence investigation and the court sentenced appellant to eight months on each count, to run concurrently, and ordered him to make restitution in the amount of $1,985 for the checks passed. The court then asked appellant if there were any restrictions on his ability to work upon his release from sentence. Appellant indicated there were none and the court made a finding that appellant was capable of making restitution for the fees of his court-appointed counsel. The court also indicated in the judgment entry that appellant "has or is reasonably expected to have the means to pay the financial sanctions, fines, and court-appointed attorney fees imposed herein." Appellant appeals the imposition of attorney fees, raising two assignments of error.
{¶ 3} Assignment of Error No. 1:
{¶ 4} "THE TRIAL COURT ERRED IN ASSESSING THE REPAYMENT OF ATTORNEY'S FEES TO AN INDIGENT DEFENDANT."
{¶ 5} Appellant argues that when a defendant is found to qualify as an indigent person, it is a violation of constitutional equal protection to order the repayment of the costs of his court-appointed counsel. Appellant refers to the language of R.C.
{¶ 6} However, the United States Supreme Court found such "recoupment language" to satisfy equal protection standards where safeguards exist for those defendants who are unable to contribute to such costs. Fullerv. Oregon (1974),
{¶ 7} In Ohio, a sentencing court's authority to order reimbursement of court-appointed attorney fees is found in R.C.
{¶ 8} Although not referring specifically to the requirements of R.C.
{¶ 9} However, this court has held that an indigent defendant may properly be required to pay his attorney fees where the trial court has made some determination, on the record, that the defendant "has, or reasonably maybe expected to have, the means to contribute to all or some part of the costs of the legal services rendered to him." State v.Flanagan, Butler App. No. CA2002-05-120, 2003-Ohio-1444, ¶ 25. The transcript in this case reveals that in the acceptance of appellant's guilty plea, the trial judge asked defendant if there was "[a]ny reason you can't work upon completion of your sentence in this case, any restrictions on working for you?" The defendant-appellant replied, "No," and the judge went on to make his finding, on the record, that "[d]efendant is capable of making restitution for attorney's fees and to pay the costs of prosecution." This finding was again indicated on the judgment entry.
{¶ 10} Cases finding orders of reimbursement to be in violation of the requirements of R.C.
{¶ 11} While both Flanagan and Dunaway dealt with cases in which the trial judge had a presentence investigation report at his disposal from which to determine the defendant's ability to meet the costs of his court-appointed attorney, the transcript reveals that such a report was waived by the defendant in this case. However, the trial judge asked the defendant himself if there were any restrictions on his ability to work upon completion of his incarceration. The appellant indicated there were none. Finding no limitation on defendant's ability to gain employment and thereby make restitution, the trial judge may properly determine that he would reasonably be expected to be able to pay the costs of his court-appointed counsel. See State v. Bailey, Butler App. No. CA2002-030-57, 2003-Ohio-5280.
{¶ 12} Furthermore, appellant made no objection regarding his ability to pay such costs. Appellant had the opportunity to challenge the trial judge's determination that he had the ability to pay his attorney fees, but failed to raise any such objections at sentencing.
{¶ 13} The record reveals that the trial court made inquiry and an affirmative determination on the record that appellant was capable of contributing to the costs of his court-appointed counsel. We therefore find that the requirements of R.C.
{¶ 14} Assignment of Error No. 2:
{¶ 15} "THE TRIAL COURT'S ORDER TO REPAY HIS COURT-APPOINTED ATTORNEY'S FEES HAS A CHILLING EFFECT ON THE RIGHT TO COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT."
{¶ 16} Appellant argues that the policy of ordering reimbursement for the costs of court-appointed counsel has a chilling effect on an indigent defendant's Sixth Amendment right to representation at trial. He asserts that while costs may properly be assessed against a defendant, there is no authority for the ordering of reimbursement of attorney fees, particularly without a separate hearing to determine ability.
{¶ 17} However, as stated above, a court's authority to order reimbursement of attorney fees against an indigent defendant can properly be found within the language of R.C.
{¶ 18} Additionally, the Supreme Court in Fuller rejected the argument that such reimbursement violated the Sixth Amendment right to counsel. The Court noted that Oregon's system for providing counsel "quite clearly [did] not deprive any defendant of the legal assistance necessary to meet these needs," and held that the fact that an indigent defendant may someday be required to repay the costs of such services "in no way affects his eligibility to obtain counsel." Fuller at ¶ 9; see, also,State v. McLean (1993),
{¶ 19} Accordingly, appellant's second assignment of error is overruled.
{¶ 20} Judgment affirmed.
Powell, P.J., and Bressler, J., concur.
