State v. Isbell
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[Cite as State v. Isbell, 2003-Ohio-4751.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY STATE OF OHIO, Plaintiff-Appellee, : : CASE NO. CA2002-07-160 : D E C I S I O N 9/8/2003 - vs : BRAD ISBELL, Defendant-Appellant. : : CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR01-06-0754 Robin N. Piper, Butler County Prosecuting Attorney, Government Services Center, 315 High Street, 11th Fl., Hamilton, Ohio 45011, for plaintiff-appellee Mary Lou Kusel, 118 South Second Street, Hamilton, Ohio 45011, for defendant-appellant Per Curiam. {¶1} This cause came on to be considered upon a notice of appeal, the transcript of the docket and journal entries, the transcript of proceedings and original papers from the Butler County Court of Common Pleas, and upon a brief filed by appellant's counsel, oral argument having been waived. {¶2} Counsel for defendant-appellant, Brad Isbell, has filed a Butler CA2002-07-160 brief with this court pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, which (1) indicates that a careful review of the record from the proceedings below fails to disclose any errors by the trial court prejudicial to the rights of appellant upon which an assignment of error may be predicated; (2) lists two potential errors "that might arguably support the appeal," Anders at 744, 87 S.Ct. at 1400; (3) requests that this court review the record independently to determine whether the proceedings are free from prejudicial error and without infringement of appellant's constitutional rights; (4) requests permission to withdraw as counsel for appellant on the basis that the appeal is wholly frivolous; and (5) certifies that a copy of both the brief and motion to withdraw have been served upon appellant. {¶3} Having allowed appellant sufficient time to respond, and no response having been received, we have accordingly examined the record and found one error prejudicial to appellant's rights in the proceedings in the trial court. The trial court's sentencing order required appellant to pay court-appointed counsel fees. In State v. Cooper, Butler App. No. CA2001-03-063, 2002-Ohio-617, this court held that under R.C. 2941.51(D), a trial court may require an indigent defendant to pay court-appointed counsel costs only after the court has made "an affirmative determination on the record" that the accused has, or reasonably may be expected to have, the means to pay all or some part of the costs of legal services rendered on his or her behalf. Id. at ¶71. The necessary determination under R.C. 2941.51(D) may be made upon an affirmative showing that the - 2 - Butler CA2002-07-160 trial court considered a presentence investigative report ("PSI") containing information regarding the accused's employment history; financial condition and other factors relevant to the determination. State v. Dunaway, Butler App. No. CA2001-12-280, 2003-Ohio- 1062. {¶4} before us. There is no such affirmative determination in the record After accepting appellant's plea, the trial court imme- diately proceeded to impose sentence. The court had no PSI from which to glean that information necessary to order a payment of counsel costs. To the contrary, the trial court, reflecting on appellant's indigent status, observed that "[t]here is very little likelihood that under any circumstances [appellant] would be in a position to pay additional fines." By its very comments in the record, the trial court determined that appellant did not have or reasonably be expected to have the means to pay all or some part of the cost of legal services. {¶5} Under such circumstances, Anders would seemingly dictate that we appoint new counsel to brief and argue this issue. How- ever, we find that the total absence in the record of any determination in compliance with R.C. 2941.51(D) constitutes plain error which we may take immediate action to remedy. See Penson v. Ohio (1998), 488 U.S. 75, 109 S.Ct. 346. {¶6} In all other respects, our examination of the record discloses no other errors prejudicial to appellant's rights in the proceedings in the trial court. {¶7} Therefore, it is the order of this court that the motion - 3 - Butler CA2002-07-160 of counsel for appellant requesting to withdraw as counsel is granted, and that portion of appellant's sentence ordering him to pay attorney fees is hereby vacated. Judgment affirmed as modified. YOUNG, P.J., WALSH and POWELL, JJ., concur. - 4 - [Cite as State v. Isbell, 2003-Ohio-4751.]
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