State v. Brock

2021 Ohio 1279

State of Ohio, Plaintiff-Appellee, v. Julie Brock, Defendant-Appellant.

Case No. 20CA1123

Case No. 20CA1124

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

April 9, 2021

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Brian T. Goldberg, Cincinnati, Ohio, for appellant.

David Kelley, Adams County Prosecutor, and Anthony Hurst, Assistant Adams County Prosecutor, West Union, Ohio, for appellee.

Hess, J.

{¶1} Julie Brock appeals her possession of drug sentences in two cases, and we sua sponte consolidate the appeals for purposes of decision. Brock asserts that the trial court erred when it imposed a fine in each case and that we must vacate the fines under R.C. 2953.08(G)(2). Brock suggests the fines are clearly and convincingly contrary to law because the trial court failed to consider her present and future ability to pay them as required by R.C. 2929.19(B)(5); however, the record demonstrates compliance with the statute. Brock also asserts that the record does not clearly and convincingly support the fines because she proved that she lacks the present or future ability to pay them. However, R.C. 2953.08(G)(2) does not permit an appellate court to vacate a fine on the basis that the record does not support a finding on ability to pay under R.C. 2929.19(B)(5). Accordingly, we reject Brock's challenge to the fines.

{¶2} Next, Brock asserts that the trial court erred when it imposed court costs in each case. Brock acknowledges the court had a statutory duty to render a judgment against her for the costs of prosecution but suggests the court abused its discretion by not waiving the costs under R.C. 2947.23(C) or cancelling them under R.C. 2303.23 because she lacks the present or future ability to pay them. However, Brock did not move for waiver or cancellation of the costs at the trial level and therefore has forfeited all but plain error as to these issues. She does not argue plain error on appeal, and we decline to construct a plain error argument on her behalf. Accordingly, we reject Brock's challenge to the costs and affirm the trial court's judgments.

I. FACTS AND PROCEDURAL HISTORY

{¶3} The Adams County grand jury indicted Brock on two fifth-degree felony counts of possession of drugs in case number 2019-0128 and one fifth-degree felony count of possession of drugs in case number 2019-0142. The court appointed counsel for her in each case, and Brock initially pleaded not guilty to the charges. Subsequently, in 2019-0128, Brock pleaded guilty to one count of possession of drugs in exchange for dismissal of the other count, and in 2019-0412, Brock pleaded guilty as charged. The court ordered a presentence investigation report ("PSI").

{¶4} At the sentencing hearing, the court indicated that it had considered the PSI and summarized its contents on the record. According to the PSI, Brock was 48 years old and had been married for 30 years; however, Brock indicated that she and her husband were separated at the time of the sentencing hearing. The PSI stated that Brock had graduated high school, had attended college for several years but did not earn a degree, had no further educational or vocational training, and had no military history. According to the PSI, Brock "reported to be in poor health as she suffers from lupus, chronic fatigue, fibromyalgia, Epstein Barr syndrome, and arthritis." However, she was not under a physician's care or prescribed any medications, had no "known diseases," and had "never received any mental health treatment." The PSI indicated that Brock "reported no work history," receives $587 per month from Social Security disability, and has a medical card. The PSI also noted that Brock "owns her home located on 6.9 acres" and that she had listed her financial obligations as a house payment, utilities, insurance, and taxes.

{¶5} In each case, the court sentenced Brock to two years of community control and ordered a period of intensive supervision, community service, weekly attendance of AA/NA meetings, and 45 days in county jail. The court asked Brock what fines it should impose, and she said: "That's entirely up to you. I'm not, I'm not a professional. I'm not, you've got a law degree. You've got all this I'm just telling you what I, I would appreciate if you would just have some mercy on me * * * [sic]." In each case, the court imposed a $1,500 fine and ordered Brock "to pay all costs of prosecution, and any supervision fees permitted pursuant to ORC 2929.18(A)(4)." The court asked Brock how much of the fines she could "afford to pay" each month. Brock evidently already owed $7,500 in fines and costs in a Scioto County case and owed money in an Adams County case. She responded: "I'm paying $40 a piece or a $40 in Portsmouth. And then I have, um, the town here I am $30 every month. Um, so could I just pay $40 or $20 on each one or does it [inaudible] together? Can I just pay $40 on this one too? Well, well, I got probation fees too, so I only get like $587.50 a month [sic]." The court ordered her to pay $25 per month toward each $1,500 fine, and Brock said, "Yes sir." During the sentencing hearing, the court also stated that it

specifically finds in the imposition of these financial sanctions the defendant has the past present future [sic] income ability and or potential to satisfy these financial sanctions. Uh, she had suggested as part of her sentence that, uh, Scioto County was fair uh, apparently less union was fair [sic], and she has the ability to pay these. She has a 6.9 acres [sic] and a home as well as assets for these reasons the court finds he [sic] has the past present future [sic] income ability to satisfy these financial sanctions."

The sentencing entries also state: "The Court specifically finds in the imposition of financial sanctions that the defendant has the past, present and future income ability and/or potential to satisfy all financial sanctions as imposed." (Emphasis sic.)

{¶6} Brock appealed her sentence in 2019-0128 in Adams App. No. 20CA1124 and her sentence in 2019-0142 in Adams App. No. 20CA1123.

II. ASSIGNMENTS OF ERROR

{¶7} Brock presents the same two assignments of error in each appeal:

1. "The trial court erred in imposing a fine against Ms. Brock."

2. "The trial court erred in imposing court costs on Ms. Brock."

III. LAW AND ANALYSIS

A. Fines

{¶8} In the first assignment of error in each appeal, Brock challenges the trial court's imposition of a fine. Brock maintains that we must apply the standard of review in R.C. 2953.08(G)(2) and vacate the fines. She suggests the fines are clearly and convincingly contrary to law because the record does not support the conclusion that the trial court considered her present and future ability to pay them as required by R.C. 2929.19(B)(5). Brock also asserts that the record does not clearly and convincingly support the fines because she proved that she lacks the present or future ability to pay them. Brock highlights the fact that she filed an affidavit of indigency, that the trial court appointed counsel for her, that she has "a lot of illnesses including lupus and receives SSI disability of $550 per month," and that she pays "$70 a month in fines/costs to other courts" in addition to regular household expenses. Brock acknowledges that she sometimes helps her mom "working at a shop" but asserts that her only payment is "help with cigarettes and stuff." Brock also acknowledges that she owns 6.9 acres of land and a home but notes that during the arraignment hearing, she told the court the property was in foreclosure.

{¶9} R.C. 2953.08(G)(2) states:

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶10} R.C. 2929.18(A) authorizes a court sentencing an offender for a felony to "sentence the offender to any financial sanction or combination of financial sanctions authorized under" that section. R.C. 2929.18(A)(3)(e) permits the court to impose a fine upon a fifth-degree felony offender in an amount not more than $2,500. "Before imposing a financial sanction under section R.C. 2929.18 of the Revised Code * * *, the court shall consider the offender's present and future ability to pay the amount of the sanction or fine." R.C. 2929.19(B)(5). "A court that imposes a financial sanction upon an offender may hold a hearing if necessary to determine whether the offender is able to pay the sanction or is likely in the future to be able to pay it," R.C. 2929.18(E), but it is not required to do so, State v. Moscoso, 5th Dist. Muskingum No. CT2018-0012, 2018-Ohio-2877, ¶ 79. In general, a sentencing court's imposition of a financial sanction under R.C. 2929.18 is contrary to law when the record fails to indicate that the court made even a cursory inquiry into the offender's present and future ability to pay the sanction. See State v. Lykins, 2017-Ohio-9390, 102 N.E.3d 503, ¶ 11 (4th Dist.). " 'This is a low standard.' " Id., quoting State v. Smith, 2017-Ohio-7740, 97 N.E.3d 1068, ¶ 47 (10th Dist.). "Thus, as long as the record contains some indication that the trial court considered the offender's present and future ability to pay the sanction or fine, the court's...