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{¶4} During the sentencing hearing, the court spent considerable time
questioning McCants about the offenses. It stated:
A man died here. You didn’t show any emotion at all when his family
members spoke, not a single bit of emotion. I don’t really think you’re
sorry for what you did. I don’t, and that’s why I would give you more if I
could, and that’s why I’m so hard on you, sir, because a man lost his life at
your hands.
{¶5} The court did not reject the agreed sentence. But the court did add the
maximum amount of fines possible to McCants’s aggregate sentence, which totaled
$35,000. The court further imposed the maximum amount of court costs and
ordered McCants to pay the court-appointed attorney fees.
{¶6} McCants raises three assignments of error on appeal: (1) the trial court
erred in finding that he was not indigent, (2) the trial court erred in imposing
maximum, consecutive fines, and (3) the trial court erred in imposing court costs and
attorney fees.
Fines
{¶7} For ease of discussion, we consider McCants’s first and second
assignments of error together. He argues that the trial court erred in finding that he
was not indigent, and that the court erred in imposing maximum, consecutive fines.
{¶8} It is important to emphasize that we are not dealing with a mandatory
fine in this case. The law did not require the trial court to fine McCants. The plea
agreement included an agreed 16-year prison sentence and notice of the potential
maximum fines. The plea agreement did not include an agreement regarding
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whether fines would be imposed. In fact, the state did not request that the court
impose a fine.
{¶9} The trial court clearly was disturbed by the facts of this case and what
it perceived to be a lack of remorse by McCants. The court made clear that it would
accept the agreed plea agreement for 16 years in prison, but that if McCants and the
state had not included an agreed sentence as part of the plea agreement, then the
court would have sentenced McCants to more than 16 years in prison.
{¶10} We review the imposition of fines just as we would any other felony
sentence. State v. Owens, 1st Dist. Hamilton No. C-170413, 2018-Ohio-1853, ¶ 5. An
appellate court “may modify or vacate a felony sentence only if we clearly and
convincingly find that the record does not support the trial court’s findings under
relevant statutes or that the sentence is otherwise contrary to law.” Id.; R.C.
2953.08(G)(2).
{¶11} R.C. 2929.18(A)(3) permits a trial court to impose fines on a defendant
convicted of a felony. The maximum amount depends on the degree of the felony. In
the present case, the trial court imposed the maximum amount for each count, for a
total of $35,000.
{¶12} Before a court imposes financial sanctions, it is required to consider
the defendant’s present and future ability to pay. R.C. 2929.19(B)(5). There are no
specific factors the trial court must consider in its analysis, nor must it make any
specific findings. State v. Freeman, 1st Dist. Hamilton No. C-180090, 2018-Ohio4973, ¶ 10. As long as the record contains some indication that the court considered
the offender’s present and future ability to pay, the court's imposition of a financial
sanction is not contrary to law. Id.
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{¶13} The court is also not required to hold a hearing before imposing fines.
Nevertheless, in the present case, the court did hold a hearing, during which
McCants presented evidence of his present and future inability to pay.
{¶14} McCants first contends that the trial court erred in finding that he was
not indigent. Indigency refers to a present inability to pay. Id. at ¶ 9. McCants filed
an affidavit of indigency and testified at the hearing that he had no money, property,
or assets, and that he had been in jail since December 2015. He testified that
although he had worked prior to being arrested and had a bank account and a car, by
the time of the sentencing hearing his bank account was “depleted” and his car had
been repossessed. The presentence-investigation report (“PSI”) in this case
substantiated McCants’s testimony. The state did not present any evidence
contradicting McCants’s asserted indigence, and on appeal concedes that McCants
was indigent at the time of sentencing. Therefore, the trial court’s finding that
McCants was not indigent for purposes of R.C. 2929.18 was unsupported by the
record. We sustain McCants’s first assignment of error.
{¶15} Thus, the central question in this case is whether the trial court
properly considered McCants’s future ability to pay the fines, remembering that
“R.C. 2929.19(B)(5) contemplates a gradual repayment of fines over a period of
time.” See State v. Delgadillo-Banuelos, 10th Dist. Franklin No. 18AP-729, 2019-
Ohio-4174, ¶ 37, citing State v. Burnett, 10th Dist. Franklin No. 08AP-304, 2008-
Ohio-5224, ¶ 9.
{¶16} “[F]ines can be useful in dealing with serious offenses, if they are
imposed in combination with other sanctions in circumstances that indicate that
monetary deprivation will furnish some independent deterrent or correctional force.”
OHIO FIRST DISTRICT COURT OF APPEALS
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Note, Fining the Indigent, 71 Colum.L.Rev. 1285 (1971). However, some
commentators believe that “a fine cannot add any corrective or deterrent force to
other penalties except where a pecuniary gain is involved.” Id. at 1285, fn. 25.
{¶17} Being saddled with a major debt upon release from prison “can
seriously impact the capacity of defendants to reintegrate as productive members of
society: for defendants, ‘unpaid criminal justice debt . . . can impact everything from
their employment and housing opportunities, to their financial stability, to their right
to vote.’” Nicholas M. McClean, Livelihood, Ability to Pay, and the Original
Meaning of the Excessive Fines Clause, 40 Hastings Const.L.Q. 883, 886 (2013),
quoting Alicia Bannon, Mitali Nagrecha, and Rebekah Diller, Criminal Justice Debt:
A Barrier to Reentry, 13 (2010). Furthermore, “Financial penalties that push an
individual beyond a certain fundamental level of economic survival and selfsufficiency are unnecessarily harsh and utterly counterproductive.” McClean, 40
Hastings Const.L.Q. at 890.
{¶18} Previously, when determining a defendant’s future ability to pay, this
court has considered financial information from the PSI, education and employment
history, social security benefits, and the defendant’s potential for future employment,
including his age and any limiting medical conditions. State v. Cauthen, 1st Dist.
Hamilton No. C-130475, 2015-Ohio-272, ¶ 7; Freeman, 1st Dist. Hamilton No. C180090, 2018-Ohio-4973, at ¶ 13.
{¶19} The only finding made by the trial court was that McCants was not
indigent. The trial court did not make a specific finding regarding McCants’s future
ability to pay $35,000 in fines. But, as discussed above, the court did not have to
make such a finding. See Freeman at ¶ 10. Thus, we must examine the record to
OHIO FIRST DISTRICT COURT OF APPEALS
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determine if the court considered McCants’s future ability to pay and whether the
record supports the trial court’s decision to fine McCants.
{¶20} McCants points to his high blood pressure as medically limiting his
potential, but that alone falls far short of indicating limited potential for future
employment. See State v. Hale, 5th Dist. Perry No. 14-CA-00010, 2014-Ohio-4981, ¶
18 (finding that the defendant had limited potential for future employment due to his
medical conditions, which included hypertension, COPD, IBS, coronary artery
disease, sleep apnea, a stroke, seizures, and the use of an oxygen tank); State v.
Campbell, 12th Dist. Warren No. CA2012-08-070, 2013-Ohio-3088, ¶ 9 (affirming
the trial court’s finding of no future ability to pay due in part to defendant’s medical
conditions, which included diabetes, high blood pressure, nerve damage, a torn
rotator cuff, depression, anxiety, and acid reflux).
{¶21} In Delgadillo-Banuelos, the court held that the defendant had the
future ability to pay despite the fact that the fines totaled $35,000, and the defendant
will leave prison at the age of 52 after serving a 16-year sentence. DelgadilloBanuelos, 10th Dist. Franklin No. 18AP-729, 2019-Ohio-4174, at ¶ 35-37. The court
reasoned that the defendant was in good physical health, had past employment
experience, and would be able to pay the fines gradually over a period of time. Id. at
¶ 37.
{¶22} In State v. Blevings, 12th Dist. Warren No. CA017-12-175, 2018-Ohio4382, ¶ 19, the defendant was ordered to pay $2,700 in restitution. Although the
defendant will be 65 years old after serving his 15-year prison sentence, and he
argued that it will be “nearly impossible” for him to find a job, the court found that
he had the future ability to pay based on his prior work history. Id. at ¶ 19.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶23} In State v. Dean, 2018-Ohio-1317, 110 N.E.3d 739, ¶ 76 (2d Dist.), the
majority found that the defendant had the future ability to pay $7,000 in fines
despite the fact that he would be 60 years old upon release from prison after serving
a 26-year sentence. The majority reasoned that the defendant had worked in the
past, had provided for his family, had no financial obligations other than a $60 a
month child-support payment, was in good health, and would be able to work while
incarcerated. Id. The dissent disagreed, citing the defendant’s criminal history, his
advanced age upon release, and how the imposition of fines would affect his ability to
pay for basic living expenses upon release and successfully reenter society. Id. at ¶
85-88 (Donovan, J., dissenting). The dissent noted, “We should not ignore the
practical reality that even if working while in custody, [an inmate] cannot earn a base
pay of more than $24.00 monthly.” Id. at ¶ 85, citing Ohio Adm.Code 5120-3-08.
{¶24} While McCants may be able to make some minimal payments towards
his fine during his 16-year prison sentence, he will be released from prison at age 58
with a significant amount of debt. According to the PSI, McCants has a GED and held
a job for two and a half years at “Brighton Mills” in “production” before he was
arrested. Also, McCants testified that while he was working he was the “main
supporter” of his household. However, there was no evidence presented regarding
McCants’s past salary or his potential future salary. Furthermore, there is no
information in the PSI about McCants’s income previous to his time at Brighton
Mills, his debts, or his monthly expenditures. McCants may be able to find a job
upon release and make some payments towards his fines, but of course his future
ability to pay is ultimately unknown.
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{¶25} It is likely that a defendant with a lengthy criminal record, who serves
a lengthy prison sentence for a serious offense, will have a difficult time finding
employment upon release. In many cases, if the defendant can find employment, it
will not pay well. See Dallas Augustine, Working Around the Law: Navigating
Legal Barriers to Employment During Reentry, 44 Law & Soc. Inquiry 726, 740-741
(2019).
{¶26} Nevertheless, as discussed above, courts have held that where there is
some evidence that a defendant was previously steadily employed, is not elderly, and
is in relatively good health, he will be employable when he is released from prison,
even if that prison term is lengthy.
{¶27} Our role as a court of appeals is not to question the wisdom of a trial
court’s sentence or to substitute our judgment for that of the trial court. Our role is
to determine whether the sentence is clearly and convincingly contrary to law or
unsupported by the record. Although it did not make a specific finding on McCants’s
future ability to pay the fine, it is clear that the court considered it. After a thorough
review of the record, we cannot say that the trial court’s decision to fine McCants
$35,000 is contrary to law or unsupported by the record. Accordingly, we must
overrule McCants’s second assignment of error.
{¶28} McCants’s first assignment of error is sustained. His second
assignment of error is overruled, and the portion of the trial court’s judgment
imposing $35,000 in fines is affirmed.
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Court Costs
{¶29} In his third assignment of error, McCants argues that the trial court
erred in imposing court costs and appointed-attorney fees. McCants first argues that
because he is indigent, the trial court erred in assessing court costs.
{¶30} “Costs are not punishment, but are more akin to a civil judgment for
money.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15.
Therefore, a trial court’s imposition of court costs is reviewed for an abuse of
discretion. Id. at ¶ 23. Trial courts are required to assess court costs against
defendants, but may waive costs against an indigent defendant. (Emphasis added.)
Id. In fact, other courts have held that a trial court need not even consider the
defendant’s ability to pay when imposing court costs. State v. Hodge, 9th Dist.
Lorain No. 14CA010648, 2015-Ohio-3724, ¶ 15; State v. Veal, 2d Dist. Montgomery
No. 25253, 2013-Ohio-1577, ¶ 5.
{¶31} It was solely within the court’s discretion whether to waive court costs
due to indigency. Despite our holding that the trial court erred in finding McCants
not to be indigent, the court was nonetheless not required to waive court costs,
especially considering McCants’s future potential to pay the court costs. The trial
court did not abuse its discretion.
Appointed-Attorney Fees
{¶32} Also in his third assignment of error, McCants argues that the trial
court’s imposition of attorney fees was clearly and convincingly contrary to law
because the record showed that he proved that he lacked a present or future ability to
pay.
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{¶33} R.C. 2941.51(D) provides that court-appointed attorney fees shall be
paid by the county and shall not be taxed as costs to the defendant. Nevertheless, “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.” R.C.
2941.51(D).
{¶34} At the very end of the sentencing hearing, the court imposed “[c]ourt
cost and attorney fees.” The court ended the hearing, but then brought everyone
back on the record so that it could notify McCants of his right to appeal and the
amount of fines the court was imposing. The court again stated that it was imposing
“court costs and attorney fees,” but it did not discuss the amount of attorney fees
McCants was expected to pay or his ability to pay. The court’s sentencing entry
stated, “The defendant is to pay public defender attorney fees.” (Emphasis added.)
The state interpreted this order as requiring that McCants pay the $25 “public
defender fee” as required by R.C. 120.36. However, the language used by the court
leads us to conclude that McCants was ordered to repay the county for the services
rendered by his court-appointed attorney, and not simply the $25 public-defender
fee.
{¶35} “Most courts that have addressed the issue have stated that R.C.
2941.51(D) does not authorize the assessment of attorney fees as part of a criminal
defendant’s sentence.” State v. Reese, 1st Dist. Hamilton Nos. C-180126 and C180412, 2019-Ohio-3680, ¶ 29. Rather, “after the court determines the defendant’s
ability to pay, it must enter a separate civil judgment for the fees or the part that the
defendant has the ability to pay.” Id.; see State v. Miller, 2d Dist. Clark No.
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08CA0090, 2010-Ohio-4760, ¶ 57 (“the trial court lacks statutory authority to
impose the payment of costs of appointed counsel in a criminal prosecution as part
of the financial sanctions authorized by R.C. 2929.18. Rather, that sanction must be
prosecuted in a civil action”).
{¶36} The sentencing court may determine the defendant’s ability to pay
appointed-counsel fees during the sentencing hearing. See State v. Riley, 11th Dist.
Portage No. 2018-P-0031, 2019-Ohio-3327, ¶ 100. R.C. 2941.51(D) does not require
that the court hold a separate hearing to determine the defendant’s ability to pay, but
“there must be a finding on the record that the offender has the ability to pay.” State
v. Teal, 2017-Ohio-7202, 95 N.E.3d 1095, ¶ 40 (6th Dist.).
{¶37} Although not expressly decided by this court, we have indicated in past
cases that the trial court is required to make an express determination regarding the
defendant’s ability to pay appointed-attorney fees. See Reese at ¶ 30; State v.
Watkins, 96 Ohio App.3d 195, 198, 644 N.E.2d 1049 (1st Dist.1994). The issue of
whether R.C. 2941.51(D) requires an explicit finding before a defendant may be
ordered to pay appointed-attorney fees is currently before the Ohio Supreme Court.
See State v. Taylor, 154 Ohio St.3d 1421, 2018-Ohio-4495, 111 N.E.3d 19.
{¶38} In the present case, there is no indication in the record that the trial
court considered McCants’s ability to pay the appointed-attorney fees at the
sentencing hearing. Therefore, we reverse the order requiring that McCants pay the
appointed-attorney fees, and remand this cause for the trial court to conduct a
hearing to determine McCants’s present and future ability to pay the appointedattorney fees. If the court determines that McCants has the ability to pay, it must
enter a separate civil judgment for the amount it determines he can pay. The third
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assignment of error is overruled as to the imposition of court costs, but sustained as
to the imposition of attorney fees.
Conclusion
{¶39} McCants’s first assignment of error is sustained. His second
assignment of error is overruled. His third assignment of error is sustained in part
and overruled in part. The portion of the trial court’s judgment imposing attorney
fees is reversed and this cause is remanded for a hearing pursuant to this opinion.
The court’s judgment is affirmed in all other respects.

Outcome: Judgment affirmed in part, reversed in part, and cause remanded.

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