State v. Gipson

[This opinion has been published in Ohio Official Reports at 

80 Ohio St.3d 626

.]




             THE STATE OF OHIO, APPELLANT, v. GIPSON, APPELLEE.
                      [Cite as State v. Gipson, 

1998-Ohio-659

.]
Criminal law—Requirement of former R.C. 2925.11(E)(5) and current analogous
        provisions of R.C. 2929.18(B)(1) that an affidavit of indigency must be
        “filed” with the court prior to sentencing construed.
The requirement of former R.C. 2925.11(E)(5) (and the current analogous
        provisions of R.C. 2929.18[B][1]) that an affidavit of indigency must be
        “filed” with the court prior to sentencing means that the affidavit must be
        delivered to the clerk of court for purposes of filing and must be indorsed
        by the clerk of court, i.e., time-stamped, prior to the filing of the journal
        entry reflecting the trial court’s sentencing decision.
 (No 96-1929—Submitted November 5, 1997 at the Cleveland-Marshall College
                     of Law Session—Decided January 7, 1998.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 69409.
                                  __________________
        {¶ 1} In October 1994, appellee, Nathaniel Gipson, was arrested in
Cleveland, Ohio, for possession of two “rocks” of crack cocaine. Following his
arrest, Gipson was released on bond. In December 1994, Gipson was indicted by
the Cuyahoga County Grand Jury for possession of cocaine (in less than the bulk
amount), a drug of abuse, in violation of former R.C. 2925.11 (145 Ohio Laws, Part
III, 5781). At his arraignment, Gipson pled not guilty to the charge, was found to
be an indigent person, and was assigned a public defender. In March 1995, Gipson
retained private counsel. Thereafter, the public defender assigned to represent
Gipson withdrew as counsel of record.
        {¶ 2} In May 1995, the matter proceeded to trial before a jury. Following
the presentation of evidence, the jury returned its verdict finding Gipson guilty of
                              SUPREME COURT OF OHIO




the charge set forth in the indictment. After discharging the jury, the trial court
scheduled sentencing for July 10.
       {¶ 3} At the July 10 sentencing hearing, the trial court sentenced Gipson to
a term of imprisonment and imposed the $1,500 mandatory fine required by former
R.C. 2925.11(E)(1) for the fourth-degree felony appellant had committed. See 145
Ohio Laws, Part III, 5781-5782. However, the trial court suspended execution of
that sentence and placed Gipson on probation for a period of four years. The
conditions of probation included, among other things, ninety days of electronic
home detention and a requirement that Gipson satisfy the mandatory fine through
either cash payments or community service. During the hearing, but after the trial
court had pronounced sentence, Gipson’s attorney informed the court that an
affidavit of indigency had been prepared for purposes of avoiding payment of the
mandatory fine. See former R.C. 2925.11(E)(1) and (E)(5), 145 Ohio Laws, Part
III, 5782. Specifically, defense counsel stated, “I have an affidavit on the fine
because he’s not working.” In response, the trial court instructed defense counsel
that counsel could “file the affidavit,” but that the affidavit would not affect the
sentence imposed by the court. The following are excerpts of the transcript from
the July 10 sentencing hearing:
       “[THE COURT:] Okay, Mr. Gipson, I’m ready to go ahead at this point           *
* * to hear what you have to say, what Mr. Mancino [defense counsel] has to say
and [to] hear from the prosecutor [Ms. Maleckor] as to what she may have to say
on the appropriate sentence. Are you prepared to go ahead at this time? Prepared
to go ahead with the sentencing hearing at this time?
       “THE DEFENDANT: Yes.
       “THE COURT: Okay, Mr. Mancino, do you want to begin?
       “MR. MANCINO: Yes, thank you, Your Honor. Well, with respect to the
facts, the Court is well aware of the facts. There was a trial in this case. Of course,
the factual situation was a hotly contested issue in this case. The jury believed the




                                          2
                                    January Term, 1998




State’s version and he was convicted on this. He’s a young man, doesn’t have any
significant record that I can determine from the presentence report.
        “THE COURT: He apparently has a juvenile record for prior drug trafficking,
but anyhow, go ahead.
        “MR. MANCINO: He does[;] from the information I have he resides there
with his mother and he’s not employed. He had hopes of employment I think at
one time and it still may be available where he may have a job with the city. His
father is attempting to get him some work but presently he is not employed although
he is looking for work. He does have a small child and they are furnishing support
for the young child and the child’s mother. To me he doesn’t present a threat to
society, to himself or to others.
        “THE COURT: Mr. Gipson, what would you like to say?
        “THE DEFENDANT: Well, I was trying to get a job, be with my son but I
don’t have the job right now.
        “THE COURT: Miss Maleckor, would you like to say anything about this
case?
        “MS. MALECKOR: Your Honor, I know you heard the facts of this case in
detail since it did go to trial so I have nothing to add at this point.
        “THE COURT: Well, what can I really say? I’ve heard the facts. I think you
were guilty. There is no question about that. * * * I am willing to give you a chance,
but I want to tell you if I give you this chance and you blow it this time * * * then
you are going to go to prison, so what I’m going to do is suspend the sentence of
one year at the Lorain Correctional Institution. I’m going to impose the statutory
penalty of the $1,500 fine together with court costs.
        “I’m going to place you on probation for four years. I’m going to require
that you do 90 days on electronic home detention which means that you will be able
to leave the home for certain purposes allowed by the Court but not just at your




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own pleasure. I’m also going to require that you do the first 90 days as daily
reporting where you have a day reporting program * * *.
        “You’ll have to report every day to the Probation Department. When you’re
not doing what the Probation Department tells you to do through the daily reporting
effort, you will have to be at home. That’s it. I expect the fine to be paid by cash
or community service at the rate of $200 a month, and I expect you to make those
payments.
        “MR. MANCINO: I have an affidavit on the fine because he’s not working.
        “THE COURT: But he’s not going to be indigent for the rest of his life. He’ll
be on probation for four years. If he can’t pay this money over the period of four
years, there is something really wrong with him. He’s six foot two, 200 pounds,
nineteen years old. There ought to be a lot of jobs he can handle, so I don’t see any
reason why he can’t pay this. You can file the affidavit. I’m not going to stop that
but I don’t regard that as making him unable to pay a fine over the course of
probation. Are you retained counsel in this case?
        “MR. MANCINO: Yes, I am.
        “THE COURT: Have you been paid?
        “MR. MANCINO: A small amount.
        “THE COURT: If he could come up with the money to hire a lawyer, he ought
to know how to come up with the money to pay his fine, and if he doesn’t want to
do it by cash, he can do it by community service, so I’ll accept your affidavit but I
don’t think it affects the sentence here in any way. I’m also going to suspend his
driver’s license for a year.
        “MR. MANCINO: Your Honor, we would object to [the suspension of
Gipson’s driver’s license]. * * *
        “THE COURT: I hear what you’re saying. There is a mandatory law under
the statute. The statute [former R.C. 2925.11(F)(1)] now requires that his driver’s
license be suspended for a minimum of six months and up to five years.




                                          4
                                      January Term, 1998




         “* * *
         “THE COURT: So anyhow that’s what I’m going to go [sic, do]. I’m also
going to require you to be back in court on November 15th at 8:30 in the morning.
I expect all these things will be done.
         “* * *
         “THE COURT: Court costs must be paid by the end of probation. Now look,
let me ask you to do this, Mr. Mancino. You know me, you’ve been in my court a
number of times. Your client is getting a break. I think you would not disagree
with that.
         “MR. MANCINO: I agree with you.
         “THE COURT: This is probably one of the few courtrooms where he
wouldn’t go to prison after this trial, but I don’t think prison is necessarily justified
in this case * * *. * * * I am prepared to accept the statement that he probably has
a potential to be a decent person but I’ve extended that opportunity to him. * * *
[I]f you play around with this thing and take advantage of this opportunity, then
you’re going to prison.”
         {¶ 4} Gipson’s sentence and the terms of his probation were set forth in a
journal entry dated July 10, 1995. The journal entry was subsequently filed with
the clerk of court on July 18. On July 26, Gipson filed a motion to abate the
mandatory fine imposed by the trial court. Attached to the motion was the affidavit
of indigency that had been signed by Gipson on July 10, i.e., the date of the
sentencing hearing. In the affidavit, Gipson alleged, “I am indigent and unable to
pay any mandatory fine pursuant to R.C. §2925.03(L) [sic, former R.C.
2925.11(E)(1) and (5)].           Affiant is unemployed, owns no property or bank
accounts.”1 The trial court never ruled on the motion to abate the mandatory fine.


1. The reference in the affidavit to former R.C. 2925.03(L) was in error, since that statute pertained
to, among other things, the procedure for avoiding mandatory fines for drug trafficking offenses,
i.e., violations of former R.C. 2925.03, on the basis of indigency and inability to pay. See 

145 Ohio 5

                                  SUPREME COURT OF OHIO




Specifically, while the motion was pending before the trial court, Gipson appealed
his conviction and sentence to the court of appeals.
         {¶ 5} On appeal, the court of appeals, in a split decision, reversed that
portion of the trial court’s judgment which had imposed the mandatory fine and had
required, as a condition of probation, that Gipson satisfy the fine through monthly
cash payments or community service. The court of appeals’ majority stated that
“[a]t the time of sentencing, defendant was unemployed and his affidavit of
indigency prior to sentencing was unopposed.” On this basis, the court of appeals’
majority concluded that “the trial court abused its discretion in imposing the fine in
futuro given defendant’s indigency.” The court of appeals affirmed the judgment
of the trial court in all other respects.
         {¶ 6} Judge Patton of the court of appeals, in a concurring and dissenting
opinion, joined the court of appeals’ majority in affirming Gipson’s conviction, but
dissented from the majority’s decision regarding the mandatory fine. Judge Patton
stated, “I find the trial judge did not abuse his discretion by imposing the mandatory
fine since he could reasonably find the defendant did not timely file his affidavit of
indigency and further could find the totality of the circumstances weighed in favor
of rejecting defendant’s affidavit of indigency and imposing the mandatory fine.”
         {¶ 7} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                                    __________________




Laws, Part III, 5771-5780. The reference to former R.C. 2925.03(L) is also found in the court of
appeals’ majority opinion, Judge Patton’s dissenting opinion, and the state’s brief in this court. In
point of fact, Gipson was neither charged with nor convicted of a drug trafficking offense. Rather,
Gipson was charged with and convicted of a drug abuse offense in violation of former R.C. 2925.11.
(145 Ohio Laws, Part III, 5781.) Although former R.C. 2925.11(E)(5) (145 Ohio Laws, Part III,
5782) was substantially similar to former R.C. 2925.03(L), R.C. 2925.11(E)(5) pertained to, among
other things, the procedure for avoiding imposition of mandatory fines for violations of R.C.
2925.11.




                                                 6
                                 January Term, 1998




       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Arthur A.
Elkins and George J. Sadd, Assistant Prosecuting Attorneys, for appellant.
       Paul Mancino, Jr., for appellee.
                                 __________________
       DOUGLAS, J.
       {¶ 8} The sole issue in this appeal may be phrased in terms of the following
question: Did the trial court abuse its discretion and/or commit an error of law by
imposing the mandatory fine and by requiring Gipson to satisfy that fine over the
course of his probation? For the reasons that follow, we answer that question in the
negative. Therefore, we reverse the judgment of the court of appeals on the issue
before us and reinstate the judgment of the trial court in its entirety.
       {¶ 9} Statutes throughout R.C. Chapter 2925 provide for the imposition of
mandatory fines for certain drug-related offenses, including certain drug abuse
offenses in violation of R.C. 2925.11, and refer to a specific statutory procedure by
which an offender who is both indigent and unable to pay may avoid imposition of
mandatory     fines.      See,    e.g.,   R.C.   2925.11(E)(1)(a),     2925.03(D)(1),
2925.02(D)(1)(a), and 2929.18(B)(1). In the case at bar, Gipson was convicted of
possession of cocaine in less than the bulk amount in violation of former R.C.
2925.11. At the time of the offense, former R.C. 2925.11 provided:
       “(E)(1)    Notwithstanding the fines otherwise required to be imposed
pursuant to section 2929.11, 2929.21, or 2929.31 of the Revised Code for violations
of this section and notwithstanding section 2929.14 or 2929.22 of the Revised
Code, the court shall impose * * * a mandatory fine of [$1,500] if the violation of
this section was a felony of the fourth degree * * *.
       “* * *
       “(E)(5) No court shall impose a mandatory fine pursuant to division (E)(1)
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




                                           7
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imposed pursuant to that division, if the court determines the offender is an indigent
person and is unable to pay the fine.” (145 Ohio Laws, Part III, 5782.)
         {¶ 10} Former R.C. 2925.11(E) is similar to the current statutory
framework in Ohio governing the imposition of mandatory fines for violations of
R.C. 2925.11. See R.C. 2925.11(E)(1)(a) and 2929.18(B)(1).2 Specifically, former
R.C. 2925.11(E), like current provisions of Ohio law (R.C. 2925.11[E][1][a] and
2929.18[B][1]), clearly requires that a sentencing court shall impose a mandatory
fine upon an offender unless (1) the offender alleges in an affidavit filed with the
court prior to sentencing that the offender is indigent and unable to pay the
mandatory fine, and (2) the court determines that the offender is in fact an indigent
person and is unable to pay the mandatory fine. Neither of the two prerequisites
for the avoidance of a mandatory fine occurred in the case at bar.




2. R.C. 2925.11(E) currently provides, in part:
          “In addition to any prison term * * * and in addition to any other sanction that is imposed
for the offense under this section or sections 2929.11 to 2929.18 of the Revised Code, the court that
sentences an offender who is convicted of or pleads guilty to a violation of division (A) of this
section shall do all of the following that are applicable regarding the offender:
          “(1)(a) If the violation is a felony of the first, second, or third degree, the court shall impose
upon the offender the mandatory fine specified for the offense under division (B)(1) of [R.C.
2929.18] unless, as specified in that division, the court determines that the offender is indigent.”
          R.C. 2929.18 provides, in part:
          “(B)(1) For a first, second, or third degree felony violation of any provision of Chapter
2925., 3719., or 4729. of the Revised Code, the sentencing court shall impose upon the offender a
mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount
authorized for the level of the offense pursuant to division (A)(3) of this section. If an offender
alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable
to pay the mandatory fine and if the court determines the offender is an indigent person and is unable
to pay the mandatory fine described in this division, the court shall not impose the mandatory fine
upon the offender.”




                                                     8
                                  January Term, 1998




                                            I
                               The Requirement of Filing
        {¶ 11} Former R.C. 2925.11(E)(5), like the current statutes governing the
avoidance of mandatory fines for drug abuse offenders who are indigent and are
unable to pay such fines (R.C. 2925.11[E][1][a] and 2929.18[B][1]), clearly
requires that the offender’s affidavit must be filed with the court prior to sentencing.
The phrase “prior to his sentencing” in former R.C. 2925.11(E)(5) and the phrase
“prior to sentencing” in R.C. 2929.18(B)(1) could be interpreted to mean that the
affidavit must be filed prior to a scheduled sentencing hearing. Conversely, the
phrases could be interpreted to mean that the affidavit must be filed prior to the
filing of a journal entry reflecting the trial court’s sentencing decision. Although
we believe that the best practice would be to require the filing of the affidavit prior
to the sentencing hearing, we interpret former R.C. 2925.11(E)(5) and the current
analogous provisions of R.C. 2929.18(B)(1) to mean that the affidavit must be
formally filed with the court prior to the filing of a journal entry reflecting the trial
court’s sentencing decision.
        {¶ 12} The court of appeals’ majority apparently determined that Gipson’s
affidavit was timely “filed” prior to sentencing because defense counsel had
attempted to submit the affidavit to the trial judge at the sentencing hearing. The
court of appeals’ majority reached this conclusion even though there is absolutely
no indication in the record that the affidavit was formally filed with the clerk of
court and time-stamped at any time prior to the filing of the trial court’s sentencing
decision. We disagree with the judgment of the court of appeals’ majority on the
question of whether Gipson’s affidavit was timely “filed.”
        {¶ 13} We hold that the requirement of former R.C. 2925.11(E)(5) (and the
current analogous provisions of R.C. 2929.18[B][1]) that an affidavit of indigency
must be “filed” with the court prior to sentencing means that the affidavit must be
delivered to the clerk of court for purposes of filing and must be indorsed by the




                                           9
                                   SUPREME COURT OF OHIO




clerk of court, i.e., time-stamped, prior to the filing of the journal entry reflecting
the trial court’s sentencing decision. We reach this conclusion based, in part, upon
a number of our recent decisions involving an analogous requirement of R.C.
2945.05 that a jury waiver form must be “filed” in a cause and made part of the
record to effectuate a valid waiver of the right to trial by jury. Specifically, in a
series of recent cases, we have definitively determined that the requirement in R.C.
2945.05 that a jury waiver form must be “filed in said cause and made a part of the
record thereof” means that the form must be time-stamped and included in the
record. See State v. Pless (1996), 

74 Ohio St.3d 333

, 

658 N.E.2d 766

; State v.
Haught (1996), 

76 Ohio St.3d 645

, 

670 N.E.2d 232

; and State v. Loesser (1997),

80 Ohio St.3d 419

, __ N.E.2d __. By analogy, R.C. 2929.18(B)(1) and former R.C.
2925.11(E)(5) are clear and unambiguous in requiring that an affidavit of indigency
must be “filed” with the court prior to sentencing, and the act of filing certainly
includes the concept of time-stamping. See, also, R.C. 2303.08 (“The clerk of the
court of common pleas shall indorse on each pleading or paper in a cause filed in
the clerk’s office the time of filing.”); and R.C. 2303.10 (“The clerk of the court of
common pleas shall indorse upon every paper filed with him the date of the filing
thereof.”).
         {¶ 14} In the case now before us, the record clearly indicates that Gipson’s
affidavit of indigency was never formally filed with the court until it was submitted
to the court as part of a motion to abate the mandatory fine. 3 The motion to abate

3. We are aware, of course, that Civ.R. 5(E) provides that “[t]he filing of pleadings and other papers
with the court, as required by these rules, shall be made by filing them with the clerk of court, except
that the judge may permit the papers to be filed with the judge, in which event the judge shall note
the filing date on the papers and forthwith transmit them to the office of the clerk.” (Emphasis
added.) We are also aware that Crim.R. 49(C) refers to Civ.R. 5(D) regarding the requirements of
“filing.” However, we note, in passing, that there is no indication in the record that the affidavit
was ever handed to the trial judge at the sentencing hearing or that the trial judge accepted Gipson’s
affidavit as a formal “filing.” Moreover, during oral arguments before this court, counsel for Gipson
expressly acknowledged that the trial judge refused to accept/receive the affidavit at the hearing,
which apparently prompted counsel to “file” the affidavit with the clerk of court as part of Gipson’s
July 26, 1995 motion to abate the fine.




                                                  10
                                January Term, 1998




the mandatory fine was filed July 26, 1995, more than two weeks after the trial
court had verbally pronounced sentence and more than a week after the filing of the
trial court’s sentencing entry. Therefore, as Judge Patton noted in his concurring
and dissenting opinion in the court of appeals, “Defendant did not file his affidavit
of indigency with the trial court prior to sentencing. In fact, defendant did not file
his motion to abate the fine until eight days after sentencing. Although the
transcript of the sentencing shows defendant offered an affidavit at that time, he did
not file that affidavit in compliance with the statute. ‘Filing’ for purposes of the
statute requires the clerk of the court to indorse the time of filing on each pleading
or filing. * * * Because the affidavit was not timely filed, the trial judge should not
have considered the affidavit in the first instance.”
       {¶ 15} At oral argument before this court, a question arose whether the state
had “waived” the issue concerning the timeliness of the “filing” of Gipson’s
affidavit since the state never raised that issue in the court of appeals. However,
we believe that the required filing of an affidavit of indigency for purposes of
avoiding a mandatory fine is, in effect, a jurisdictional issue. The present and
former versions of R.C. 2925.11 require a sentencing court to impose a mandatory
fine upon an offender unless the offender alleges in an affidavit filed with the court
prior to sentencing that the offender is indigent and unable to pay the mandatory
fine and unless the court determines that the offender is an indigent person and is
unable to pay the mandatory fine. R.C. 2925.11(E)(1)(a), 2929.18(B)(1) and
former R.C. 2925.11(E). Thus, the trial court could not have avoided imposing the
statutory fine since the required affidavit of indigency was never properly “filed”
with the court prior to sentencing. The timeliness of the filing of Gipson’s affidavit
has been properly raised before this court, and, in our judgment, the fact that the
affidavit was not properly filed prior to sentencing is, standing alone, a sufficient
reason to find that the trial court committed no error by imposing the statutory fine.
                                          II




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                              SUPREME COURT OF OHIO




                          The Trial Court’s Determination
        {¶ 16} Moreover, and in any event, even if Gipson’s affidavit had been filed
in a timely manner, the trial court’s decision imposing the mandatory fine and
requiring Gipson to satisfy that fine over the course of his probation was not an
error of law and/or an abuse of the trial court’s discretion. For purposes of former
R.C. 2925.11(E) and the current analogous provisions of R.C. 2925.11(E)(1)(a) and
2929.18(B)(1), an offender who files an affidavit alleging that he or she is indigent
and is unable to pay a mandatory fine is not automatically entitled to a waiver of
that fine. Once again, these statutes clearly require imposition of a mandatory fine
unless (1) the offender’s affidavit is filed prior to sentencing, and (2) the trial court
finds that the offender is an indigent person and is unable to pay the mandatory
fines. Here, the trial court suspended Gipson’s jail sentence and placed him on
probation to give him an opportunity to straighten out his life and to pay the
mandatory fine. The transcript of the sentencing hearing suggests that Gipson was
actively seeking employment at the time of the sentencing hearing, that he had
managed to retain and pay for a private defense attorney, and that he was an able-
bodied young man with some employment potential. Additionally, evidence at trial
indicated that Gipson may have had an employment history.                  Under these
circumstances, the trial court apparently believed that Gipson was capable of
paying the mandatory fine through monthly cash payments or by performing
community service. We find no error in this regard. Specifically, we find that the
trial court could have reasonably determined that although Gipson was indigent at
the time of the sentencing hearing, he was not “unable to pay” the mandatory fine
over the course of his probation.
        {¶ 17} Nevertheless, the court of appeals’ majority, in reversing that portion
of the trial court’s judgment imposing the mandatory fine, apparently concluded
that the trial court had abused its discretion by requiring payment of the fine in
futuro since there was no dispute at the time of the sentencing hearing that Gipson




                                           12
                                   January Term, 1998




was, at that particular moment, indigent and unemployed. Specifically, the court
of appeals’ majority relied upon the case of State v. Pendleton (1995), 

104 Ohio App.3d 785

, 

663 N.E.2d 395

, wherein it is stated that “the mere possibility that the
offender may be able to pay the fine in the future, or pay it in the future in
installments, is not a proper basis on which to find that a defendant is not indigent.”

Pendleton at 788

, 

663 N.E.2d at 397

 (interpreting former R.C. 2925.03[L]). See,
also, State v. Lefever (1993), 

91 Ohio App.3d 301, 309

, 

632 N.E.2d 589, 594

 (“
‘[A] trial court may not properly use the mere possibility of an offender’s future
ability to pay a fine as the basis for determining that the imposition of that fine is
not prohibited by [former] R.C. 2925.03[L].’ ”). The court of appeals’ majority
also relied heavily on State v. Ruzicka (Jan. 13, 1994), Cuyahoga App. No. 64476,
unreported, 

1994 WL 11325

, wherein it is stated, “[I]t is our reasoned opinion that
a trial court abuses its discretion by imposing a mandatory fine where the
defendant’s affidavit of indigency remains unopposed and the appellate record does
not contain sufficient evidence to support a conclusion that the defendant was able
to pay the fine.” (Emphasis added.) We respectfully disagree with the court of
appeals’ analysis of this issue.
       {¶ 18} With respect to the court of appeals’ reliance on the above-quoted
passage from Ruzicka, we note that there is no requirement in either the present or
current versions of R.C. 2925.11 that a trial court must make an affirmative finding
that an offender is able to pay a mandatory fine. To the contrary, former R.C.
2925.11(E)(5) and the analogous requirements of R.C. 2925.11(E)(1)(a) and
2929.18(B)(1) provide that a mandatory fine shall not be imposed on an offender
where the offender has filed the required affidavit prior to sentencing and the trial
court determines that the offender is an indigent person and is unable to pay the
mandatory fine. In his concurring and dissenting opinion in the court of appeals,
Judge Patton recognized, and we agree, that the burden is upon the offender to
affirmatively demonstrate that he or she is indigent and is unable to pay the




                                           13
                             SUPREME COURT OF OHIO




mandatory fine. Thus, the court of appeals’ reliance on Ruzicka is misplaced. The
issue here is not whether the record would support a determination that Gipson is
able to pay the mandatory fine but, rather, whether the trial court committed an
error of law and/or abused its discretion in finding that although Gipson was
indigent at the time of the sentencing hearing, he was not “unable to pay” the
mandatory fine over the course of his probation.
       {¶ 19} Moreover, the case at bar is clearly distinguishable from Pendleton
and Lefever. Those two cases hold that a trial court abuses its discretion by
imposing a mandatory fine where an indigent defendant has been sentenced to
incarceration and will be unable to pay the statutory fine. For instance, in Lefever,
the court of appeals found that a trial court had committed reversible error by
imposing a mandatory fine upon an indigent defendant under the following
circumstances: “Lefever filed an affidavit of indigency asserting that he could not
pay the fines and that he has no assets of any kind. No evidence controverting these
was produced. The record also shows that Lefever was sentenced to no less than
five nor more than twenty-five years’ incarceration, with five years’ actual
incarceration. Because Lefever’s incarceration will prohibit him from retaining an
income-producing job, he will not be in a position to pay the fines for at least five
years.” 

Lefever at 309

, 

632 N.E.2d at 594

. Similarly, Pendleton involved a
situation where an indigent defendant was sentenced to a term of incarceration and
was ordered to pay a mandatory fine. Under these circumstances, the Pendleton
court followed the reasoning and holding of Lefever. 

Pendleton at 787-788

, 

663 N.E.2d at 396-397

. See, also, State v. Gutierrez (1994), 

95 Ohio App.3d 414, 418

,

642 N.E.2d 674, 676

 (a trial court abuses its discretion by imposing a mandatory
fine under R.C. 2925.11 where the defendant’s incarceration would preclude
payment of the mandatory fine).
       {¶ 20} In contrast to Pendleton, Lefever, and Gutierrez, the trial court in this
case suspended Gipson’s sentence of incarceration, placed him on probation, and




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ordered him to satisfy the mandatory fine over the course of his probation. On this
basis, and on the basis of Gipson’s youth and physical stature, the trial court noted
that “[t]here ought to be a lot of jobs he can handle, so I don’t see any reason why
he can’t pay this [mandatory fine].” The trial court also offered Gipson a reasonable
alternative to monthly cash payments, stating that “if he [Gipson] doesn’t want to
do it by cash, he can do it by community service.” Therefore, although Gipson had
no job at the time of sentencing, the trial court obviously determined that Gipson
could work, could perform community service, and could satisfy the fine over the
four-year period of probation. We have no reason to question the trial court’s
findings in regard to these matters.
        {¶ 21} Gipson protests, however, that it is never proper for a trial court to
consider an offender’s future ability to pay a mandatory fine because, according to
Gipson, “[i]t is defendant’s status at the time of sentencing that is determinative
whether he is indigent.” However, we do not believe that former R.C. 292511(E)(5)
was intended to preclude a trial court from imposing fines on able-bodied
defendants who are fully capable of work but who happen to be indigent and
unemployed at the moment of sentencing. Obviously, for purposes of former R.C.
2925.11(E)(5) and the current analogous provisions of R.C. 2925.11(E)(1)(a) and
2929.18(B)(1), a trial court’s determination whether an offender is indigent and is
unable to pay a mandatory fine can (and should) encompass future ability to pay.
If the General Assembly had intended otherwise, the statutes would have been
written to permit a waiver of the mandatory fines based solely on a defendant’s
present state of indigency, and would not have also required trial courts to consider
the additional question whether the offender is “unable to pay.”
        {¶ 22} Accordingly, for the foregoing reasons, we reverse the judgment of
the court of appeals on the sole issue before us and reinstate the judgment of the
trial court.
                                                                Judgment reversed.




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                         SUPREME COURT OF OHIO




       MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                          __________________




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