State v. Rhodman

[Cite as State v. Rhodman, 2019-Ohio-5176.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : CARRIE L. RHODMAN, : Case No. 2019 CA 00029 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 2018 CR 00245

JUDGMENT: Vacated DATE OF JUDGMENT: December 9, 2019 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES PATRICK T. CLARK Prosecuting Attorney Assistant State Public Defender 250 East Broad Street, Suite 1400 By: CLIFFORD J. MURPHY Columbus, Ohio 43215 Assistant Prosecuting Attorney 20 South Second Street, 4th Floor Newark, Ohio 43055

Licking County, Case No. 2019 CA 00029 2 Baldwin, J.

{¶1} Carrie L. Rhodman appeals the decision of the Licking County Court of Common Pleas ordering that she pay court-appointed counsel fees. Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} The underlying facts leading to the charges in this matter are not relevant to the disposition of the appeal and are therefore omitted.

{¶3} Appellant was convicted of one count of aggravated arson and was sentenced to a four year prison term and ordered to "*** pay court-appointed counsel costs and any fees permitted pursuant to R.C. Section 2929.18(A)(4) according to the Defendant's ability to pay," over Appellant's objection.

{¶4} Appellant filed an appeal and submitted two assignments of error:

{¶5} “I. THE TRIAL COURT ERRED IN SENTENCING CARRIE RHODMAN

WHEN IT IMPOSED COSTS OF COUNSEL WITHOUT FIRST FINDING THAT SHE HAD

THE ABILITY TO PAY THOSE COSTS.”

{¶6} “II. THE TRIAL COURT'S IMPOSITION OF COUNSEL COSTS AGAINST

CARRIE RHODMAN IS CLEARLY AND CONVINCINGLY UNSUPPORTED BY THE

RECORD.”

STANDARD OF REVIEW

{¶7} An appellate court may only modify or vacate a sentence if it finds by clear and convincing evidence that the record does not support the sentencing court's decision. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231at ¶23. Clear and convincing evidence is that “‘which will produce in the mind of the trier of facts a firm Licking County, Case No. 2019 CA 00029 3 belief or conviction as to the facts sought to be established.’ ” State v. Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7 quoting, Marcum, supra, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of the evidence,” but does not require the certainty of “beyond a reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.

ANALYSIS

{¶8} In her first assignment of error, Appellant contends the trial court erred in sentencing when it imposed costs of counsel without first finding that she had the ability to pay those costs.

{¶9} We addressed this issue in State v. Hare, 5th Dist. Delaware No. 19 CAA 01 0001, 2019-Ohio-3047 where that Appellant assigned as error the trial court's order that Appellant "to pay all of the cost of his court-appointed counsel without determining his ability to pay, and without advising him on the record he would be required to pay at sentencing." Id. at ¶ 38. The rational of that decision is applicable to the case before us.

{¶10} In Hare we found that R.C. 2941.51(D) controlled our analysis, particularly that portion of the statute that states:

The fees and expenses approved by the court under this section shall not

be taxed as part of the costs and shall be paid by the county. However, if

the person represented has, or reasonably may be expected to have, the

means to meet some part of the cost of the services rendered to the person,

the person shall pay the county an amount that the person reasonably can

be expected to pay. Licking County, Case No. 2019 CA 00029 4 Id. at ¶ 41.

{¶11} We cited the Second District Court of Appeals Decision in State v. Taylor, 2nd Dist. Montgomery No. 27700, 117 N.E.3d 887, 2018-Ohio-2858 with approval and held that "to impose court-appointed counsel fees, the trial court must notify the defendant of such requirement at sentencing, make an explicit finding the defendant has or reasonably may be expected to have the means to pay, and specify the amount of appointed-counsel fees the defendant can or reasonably may be expected to pay." Hare, supra at ¶ 44.

{¶12} In Hare the trial court stated at the sentencing hearing and in its sentencing entry:

Court (sic) has considered your present and future ability to pay financial

sanctions, does not impose a fine in this case, but you are ordered to pay

all of the costs of prosecution for which judgement's [sic] granted against

you and execution is hereby awarded.

***

The Court finds the defendant is able to work and is therefore Ordered to

pay all prosecution costs, court appointed counsel costs and any fees

permitted pursuant to R.C. 2929.18(A)(4), for which all sums, judgment is

hereby rendered. No fine is imposed. Hare, supra at ¶ 45, 47.

{¶13} We held that "The trial court did not notify Appellant at sentencing he would or could be required to pay court-appointed counsel fees, did not make an explicit finding Appellant has or reasonably may be expected to have the means to pay court-appointed Licking County, Case No. 2019 CA 00029 5 counsel fees pursuant to R.C. 2941.51(D), and did not specify the amount of appointed-counsel fees Appellant can or reasonably may be expected to pay" Id. at ¶ 48.

{¶14} In the case before us, the trial court ordered Appellant to "*** pay court-appointed counsel costs and any fees permitted pursuant to R.C. Section 2929.18(A)(4) according to the Defendant's ability to pay" but "did not make an explicit finding Appellant has or reasonably may be expected to have the means to pay court-appointed counsel fees pursuant to R.C. 2941.51(D), and did not specify the amount of appointed-counsel fees Appellant can or reasonably may be expected to pay." Consistent with our decision in Hare, we must find that the trial court erred by ordering Appellant to pay court-appointed counsel fees without making the required findings.

{¶15} The first assignment of error is sustained.

{¶16} In her second assignment of error, Appellant argues that the trial court's imposition of counsel costs is clearly and convincingly unsupported by the record. Because we have sustained the Appellant’s first assignment of error and determined that the trial court erred by imposing costs, we hold that the second assignment of error moot and that it is unnecessary to render a decision on that assignment. App.R. 12(A)(1)(c). Licking County, Case No. 2019 CA 00029 6

{¶17} The judgment of the Licking County Common Pleas Court regarding the order to pay court-appointed counsel fees is vacated. By: Baldwin, J. Gwin, P.J. and Wise, Earle, J. concur.