[Cite as State v. Prichard,
2023-Ohio-160.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29509
:
v. : Trial Court Case No. 2021 CR 02171
:
FRED PRICHARD : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on January 20, 2023
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RICKY L. MURRAY, Attorney for Appellee
LUCAS W. WILDER, Attorney for Appellant
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TUCKER, J.
{¶ 1} Fred Prichard appeals from his conviction following a guilty plea to
aggravated drug possession, a third-degree felony.
{¶ 2} Prichard contends the trial court’s imposition of a mandatory fine was
contrary to law and an abuse of discretion. He also alleges ineffective assistance of
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counsel based on his attorney’s failure to file a timely affidavit of indigence.
{¶ 3} Upon review, we see no error in the trial court’s imposition of the fine. We
also find no ineffective assistance of counsel where the affidavit of indigence was filed
prior to the trial court’s judgment entry imposing sentence. Accordingly, the trial court’s
judgment will be affirmed.
I. Background
{¶ 4} A grand jury indicted Prichard on felony charges of fentanyl possession and
aggravated drug possession. He later pled guilty to aggravated drug possession in
exchange for dismissal of the other charge. During a June 17, 2022 plea hearing, the trial
court advised Prichard that he faced a mandatory fine of $5,000 to $10,000. At
sentencing, which occurred the same day, the trial court followed the plea agreement and
imposed a two-year prison term.
{¶ 5} Regarding the mandatory fine, defense counsel advised the trial court that
he would be filing an affidavit of indigence later that day. Counsel explained that he had
been appointed to represent Prichard, who was indigent. Counsel reported that Prichard
had no resources to pay a fine and asked the trial court to waive it. The trial court then
addressed Prichard. Noting the quantity of drugs involved, the trial court expressed its
belief that he had “money somewhere.” The trial court then added: “[I] don’t believe that
your attorney has presented to this Court an inability of future ability to pay.” The trial
court proceeded to impose a $5,000 fine and court costs.
{¶ 6} Following the sentencing hearing, defense counsel filed the affidavit of
indigence at 3:28 p.m. on June 17, 2022. The affidavit stated that Prichard was
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unemployed and essentially had no assets. It also stated that he had no ability to seek
employment until after his incarceration. The trial court filed its final judgment entry
imposing sentence 41 minutes later at 4:09 p.m. This appeal followed.
II. Analysis
{¶ 7} In the first of two assignments of error, Prichard challenges the trial court’s
imposition of a fine. While recognizing that a trial court need not make any particular
findings regarding a defendant’s ability to pay a fine, he contends the trial court erred in
failing even to consider his present and future ability to pay before imposing a $5,000 fine.
{¶ 8} Prichard’s argument implicates R.C. 2929.18(B)(1), which provides in part:
“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.”
{¶ 9} Setting aside the timeliness of Prichard’s affidavit, 1 the trial court was
required to find him “indigent” and “unable to pay” before being authorized to waive his
fine. These are distinct requirements. “Indigency concerns a defendant’s current financial
situation, whereas an inability to pay encompasses his future financial situation as well.”
State v. Plemons, 2d Dist. Montgomery Nos. 26434, 26435, 26436, and 26437, 2015-
Ohio-2879, ¶ 7, citing State v. Gipson, 80 Ohio St.3d 626, 636,
687 N.E.2d 750 (1998).
A defendant bears the burden to demonstrate both present indigence and future inability
to pay. Id. at ¶ 8. Absent these dual showings, a trial court is required to impose a
1 We will address the timeliness of the affidavit under the second assignment of error.
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mandatory fine such as the one in Prichard’s case. Id. Moreover, “a hearing is not required
on a defendant’s ability to pay a mandatory fine, and a trial court need not make specific
findings on the issue.” Id., citing State v. Barker, 2d Dist. Montgomery No. 26061, 2014-
Ohio-3946, ¶ 15.
{¶ 10} Contrary to Prichard’s argument on appeal, the trial court did consider both
his present and future ability to pay a $5,000 fine. At the sentencing hearing, the trial court
explicitly acknowledged defense counsel’s assertions regarding Prichard’s current
indigent status. The trial court nevertheless found that his attorney had failed to establish
a future inability to pay the fine. The affidavit submitted by Prichard also addressed his
current lack of employment and assets but failed to demonstrate his future inability to pay
a fine over time. Indeed, the only averment Prichard made addressing his future ability to
pay was a statement that he could not seek employment until his release from prison.
{¶ 11} Because the trial court considered Prichard’s present and future ability to
pay the mandatory fine, which was within the authorized statutory range, the fine is not
contrary to law. See State v. Earnest, 2d Dist. Montgomery No. 29270, 2022-Ohio-2374,
¶ 23-25 (citing the standard in R.C. 2953.08(G)(2)(b) and holding that the appellant’s
mandatory fine was not contrary to law).
{¶ 12} To the extent that the abuse-of-discretion standard also may remain
applicable, see State v. Beal-Ragland, 2d Dist. Clark No. 2022-CA-22, 2022-Ohio-3940,
¶ 10 (applying abuse-of-discretion standard to trial court’s determination that defendant
had a future ability to pay a mandatory fine), we conclude that the record fully supports
the trial court’s decision. Prichard was 43 years old at the time of sentencing, and he had
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completed two years of college. We note too that the trial court did not suspend his driving
privileges. In light of these facts, the trial court reasonably could have believed that he
would be employable and would be able to pay a $5,000 fine over time after he completed
his two-year prison term. Nothing in Prichard’s affidavit controverts such a determination.
{¶ 13} In opposition to our conclusion, Prichard cites State v. Davis, 8th Dist.
Cuyahoga No. 99976, 2014-Ohio-2052. In that case, a divided panel of the Eighth District
Court of Appeals reversed the imposition of a mandatory fine. The majority reasoned that
“the mere possibility” of a defendant being able to pay a fine in the future was insufficient
to justify imposing one. Id. at ¶ 11. In a later case, however, another panel of the Eighth
District distanced itself from Davis. In State v. Clemons, 8th District Cuyahoga No.
101230,
2015-Ohio-520, the Eighth District questioned the reasoning of Davis and
characterized its outcome as being “unique to the facts of that case.” Id. at ¶ 12. We note
that the defendant in Davis possessed only a ninth-grade education whereas Prichard
has completed some college. For this reason and others discussed in Clemons, we are
unpersuaded that Davis supports the waiver of Prichard’s fine. The first assignment of
error is overruled.
{¶ 14} In his second assignment of error, Prichard alleges ineffective assistance
of counsel based on his attorney’s failure to file a timely affidavit of indigence. He reasons
that the trial court may have waived the fine at sentencing if it had been given an actual
affidavit rather than defense counsel’s representations.
{¶ 15} Prichard is correct that failure to file an affidavit of indigence may constitute
ineffective assistance of counsel. The question is whether the record reflects a
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reasonable probability that the trial court would have relieved the defendant of his
obligation to pay if an affidavit had been filed. State v. Fultz, 2d Dist. Champaign No.
2018-CA-22, 2019-Ohio-2593, ¶ 20.
{¶ 16} Prichard’s argument fails, however, because his affidavit was timely. The
Ohio Supreme Court addressed the timeliness of an affidavit of indigence in Gipson, 80
Ohio St.3d 626, 636,
687 N.E.2d 750. While recognizing that R.C. 2929.18(B)(1) requires
such an affidavit to be filed “prior to sentencing,” the Gipson court interpreted that phrase
“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.”
Gipson at 632. Here Prichard’s
affidavit of indigence was filed prior to the trial court’s journal entry imposing his sentence.
Therefore, the affidavit was timely under Gipson.
{¶ 17} Finally, even if the affidavit were untimely, we would find no ineffective
assistance of counsel. Prichard’s affidavit focuses on his current inability to pay based on
his lack of employment and assets. As noted above, however, a trial court also must
consider a defendant’s future ability to pay over time. On that issue, the trial court
reasonably found that Prichard had not shown an inability to pay a $5,000 fine over time
after he completed his two-year prison term. Accordingly, the second assignment of error
is overruled.
III. Conclusion
{¶ 18} Having overruled both assignments of error, we affirm the judgment of the
Montgomery County Common Pleas Court.
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EPLEY, J. and LEWIS, J., concur.
