[Cite as State v. Kincade,
2025-Ohio-2959.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-24-1200
Appellee Trial Court No. CR0202401335
v.
Michael Kincade DECISION AND JUDGMENT
Appellant Decided: August 19, 2025
…
Julia R. Bates, Esq., Lucas County Prosecutor and
Randy L. Meyer, Esq., Assistant Prosecutor, for appellee.
Lawrence A. Gold, Esq., for appellant.
…
SULEK, P.J.
{¶ 1} Appellant, Michael Kincade, appeals a judgment of the Lucas County Court
of Common Pleas sentencing him to 24 months in prison and a mandatory $5,000 fine
following his guilty pleas to trafficking in cocaine and trafficking in fentanyl. For the
foregoing reasons, the judgment is affirmed.
I. Procedural Background
{¶ 2} The Lucas County Grand Jury indicted Kincade on one count each of
trafficking in cocaine and possession of cocaine, third-degree felonies, and trafficking in
fentanyl and possession of fentanyl, fourth-degree felonies. Kincade pleaded not guilty
to the charges.
{¶ 3} On April 25, 2024, Kincade withdrew his not guilty pleas and entered guilty
pleas to counts of trafficking in cocaine and fentanyl. Pursuant to a negotiated plea
agreement, the State agreed to the dismissal of the possession charges. The matter
immediately proceeded to sentencing.
{¶ 4} Kincade’s counsel requested the court allow him to “file an affidavit of
indigency for waiver of the mandatory fines given the prison sentence that is imposed,
given the fact that he’s indigent. He does not have the ability to be able to pay that
mandatory fine.” The court indicated that it would allow the filing.
{¶ 5} The court then sentenced Kincade to 24 months of imprisonment for
trafficking in cocaine and 18 months of imprisonment for trafficking in fentanyl, to be
served concurrently, and a mandatory $5,000 fine. The court ordered the sentence to be
served consecutive to the sentence in case No. CR0202301549 for a total incarceration
period of 60 months. Counsel did not file the affidavit of indigency and request to waive
the mandatory fine. This appeal followed.
II. Assignment of Error
{¶ 6} Kincade raises the following assignment of error:
2.
Assignment of Error: Appellant received ineffective assistance of
counsel in violation of his rights under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, § 10 of the
Constitution of the State of Ohio.
III. Analysis
{¶ 7} In his sole assignment of error, Kincade contends that his counsel was
ineffective in failing to file an affidavit of indigency and request for waiver of the
mandatory fine. He claims the trial court’s willingness to entertain an affidavit of
indigency evidences a reasonable probability that the court would have found him
indigent and unable to pay the fine.
{¶ 8} R.C. 2929.18(B)(1) states:
For a first, second, or third degree felony violation of any provision of
Chapter 2925 . . . the sentencing court shall impose upon the offender a
mandatory fine . . . . 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} A properly licensed attorney is presumed competent; an appellant bears the
burden of proving his trial counsel’s ineffectiveness. State v. Beard, 2020-Ohio-3393, ¶
5 (6th Dist.).
The “[f]ailure to file the R.C. 2929.18(B)(1) affidavit of indigency
constitutes ineffective assistance of counsel which can be addressed on
direct appeal, rather than in postconviction relief, if there is sufficient
evidence in the record demonstrating that the trial court would have found
the offender was indigent and unable to pay the fine.”
3.
State v. Lopez, 2023-Ohio-1924, ¶ 38 (6th Dist.), quoting
Beard at ¶ 7. The defendant
has the burden to demonstrate the inability to pay the mandatory fine.
Beard at ¶ 6, citing
State v. Gipson,
80 Ohio St.3d 626, 634 (1998); State v. VanCamp,
2016-Ohio-2980, ¶ 9
(6th Dist.). “[S]peculation is insufficient to establish the prejudice component of an
ineffective assistance of counsel claim.” State v. Malone,
2022-Ohio-1409, ¶ 17 (4th
Dist.).
{¶ 10} Here, Kincade’s sole claim is that the trial court’s willingness to entertain
his affidavit of indigency evidences the likelihood that his motion would have been
granted. Kincade points to no part of the record supporting this claim, thus, his
contention is purely speculative. Lopez at ¶ 38. During the April 25, 2024 combined
plea and sentencing hearing, Kincade stated that he was 34 years old, attended two years
of college, and can read, write and understand English. This supports the possibility that
following his five-year sentence, he may have the ability to pay the fine. There is also no
indication that Kincade would be unemployable upon his release.
Malone at ¶ 24.
{¶ 11} Notably, Kincade retained counsel during the trial court proceedings. The
trial court’s appointment of appellate counsel upon finding Kincade indigent is not
dispositive of whether he has the ability to pay the fine imposed at sentencing. State v.
Hertzler, 2025-Ohio-758, ¶ 82 (4th Dist.), citing
Malone at ¶ 21. “Indigency concerns a
defendant’s current financial situation, whereas an inability to pay encompasses his future
financial situation as well.” State v. Plemons,
2015-Ohio-2879, ¶ 7 (2d Dist.), citing
Gipson at 636. Accordingly, Kincade’s assignment of error is not well-taken.
4.
IV. Conclusion
{¶ 12} The judgment of the Lucas County Court of Common Pleas is affirmed.
Pursuant to App.R. 24, Kincade is ordered to pay the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J.
JUDGE
Myron C. Dhuart, J.
JUDGE
Charles E. Sulek, P.J.
CONCUR JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
5.
