State v. McQuillen

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[Cite as State v. McQuillen, 2012-Ohio-4953.] COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vsCase No. 12 COA 014 CHAD E. MCQUILLEN Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 11 CRI 116 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: October 17, 2012 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant RAMONA FRANCESCONI ROGERS ASHLAND COUNTY PROSECUTOR PAUL T. LANGE ASSISTANT PROSECUTOR 110 Cottage Street Ashland, Ohio 44805 ERIN N. POPLAR ERIN POPLAR LAW LLC 1636 Eagle Way Ashland, Ohio 44805 Ashland County, Case No. 12 COA 014 2 Wise, J. {¶1} Appellant, Chad E. McQuillen, appeals his conviction and sentence from the Ashland County Court of Common Pleas. Appellant was indicted on one count of Possession of Cocaine, a felony of the fifth degree in violation of R.C. 2925.11(A) and one count of Illegal Assembly or Possession of Chemicals for Manufacture of Drugs, a felony of the second degree, in violation of R.C. 2925.041(A). {¶2} Appellant entered pleas of guilty to Possession of Cocaine and Illegal Assembly or Possession of Chemicals for Manufacture of Drugs, however, the second count was reduced to a felony of the third degree. Appellant was sentenced to six months in prison for Possession of Cocaine and twenty four months in prison for Illegal Assembly ordered to be served concurrently. The trial court also imposed fines of $5,500.00. A timely notice of appeal was filed. {¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), rehearing den., 388 U.S. 924 (1967), indicating that the within appeal was wholly frivolous and setting forth two proposed Assignments of Error: {¶4} I. PAYMENT OF FINE AND COURT COSTS: THE TRIAL COURT ERRED AND WHEN IT IMPOSED THE MANDATORY MINIMUM FINE ON APPELLANT PURSUANT TO OHIO REVISED CODE SECTIONS 2925.041 AND 2929.18 BECAUSE HE HAD ALREADY BEEN FOUND TO BE INDIGENT AND HAD COMPLETED AND FILED AN AFFIDAVIT OF INDIGENCY PRIOR TO SENTENCING. {¶5} II. IN THE ALTERNATIVE, APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH Ashland County, Case No. 12 COA 014 3 AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE HIS COURTAPPOINTED COUNSEL DID NOT REQUEST THAT THE COURT REFRAIN FROM IMPOSING A MANDATORY FINE ON APPELLANT PURSUANT TO OHIO REVISED CODE SECTIONS 2925.041 AND 2929.18. {¶6} In Anders, the United States Supreme Court held if, after a conscientious examination of the record, a defendant s counsel concludes the case is wholly frivolous, then he should so advise the court and request permission to withdraw. Id. at 744. Counsel must accompany his request with a brief identifying anything in the record that could arguably support his client s appeal. Id. Counsel also must: (1) furnish his client with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise any matters that the client chooses. Id. Once the defendant s counsel satisfies these requirements, the appellate court must fully examine the proceedings below to determine if any arguably meritorious issues exist. If the appellate court also determines that the appeal is wholly frivolous, it may grant counsel s request to withdraw and dismiss the appeal without violating constitutional requirements, or may proceed to a decision on the merits if state law so requires. Id. {¶7} Counsel in this matter has followed the procedure in Anders v. California, 386 U.S. 738 (1967). We find the appeal to be wholly frivolous and grant counsel s motion to withdraw. For the reasons which follow, we affirm the judgment of the trial court. I., II. {¶8} In his first Assignment of Error, Appellant argues the trial court erred in imposing fines and court costs. In his second proposed Assignment of Error, Appellant Ashland County, Case No. 12 COA 014 4 argues he received ineffective assistance of trial counsel because trial counsel failed to object to the fine and costs. Because these Assignments of Error are related, we will address them together. {¶9} The decision to impose or waive a fine rests within the sound discretion of the court and will not be reversed on appeal absent an abuse of that discretion. State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998). The term abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). {¶10} As this Court explained in State v. Perry, 5th Dist. No. 2004-CA-00066, 2005-Ohio-85: {¶11} [T]here are no express factors that must be taken into consideration or findings regarding the offender's ability to pay that must be made on the record. State v. Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318, 2000-Ohio-1942. Although a court may hold a hearing under R.C. 2929.18(E) to determine whether the offender is able to pay the [financial] sanction or is likely in the future to be able to pay it, a court is not required to do so. State v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001, unreported ( although the trial court must consider the offender's ability to pay, it need not hold a separate hearing on that issue ). All that R.C. 2929.19(B)(6) requires is that the trial court consider the offender's present and future ability to pay. State v. Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-1062, at 36; Martin, 140 Ohio App.3d at 33, 746 N.E.2d 642 Id. at *4-5, 746 N.E.2d 642. See also State v. Thompson, 5th Dist. No. 06-CA-62, 2008-Ohio-435, at ¶ 19. While it would be Ashland County, Case No. 12 COA 014 5 preferable for the trial court to expressly state on the record that it has considered a defendant's present and future ability to pay a fine, it is not required. State v. Parker, 2nd Dist. No. 03CA0017, 2004-Ohio-1313, ¶ 42, citing State v. Slater, 4th Dist. No. 01 CA2806, 2002-Ohio-5343. The court's consideration of that issue may be inferred from the record under appropriate circumstances. Id. {¶12} The record in this case reveals the trial court made a specific finding that Appellant has a future ability to pay the fines and costs. For this reason, we cannot say the record demonstrates the trial court abused its discretion in imposing fines and court costs. Further, because the trial court did not abuse its discretion in imposing the fine and costs, it was not error for counsel to fail to object to the imposition of the fine and costs. {¶13} Appellant s proposed Assignments of Error are overruled. {¶14} For these reasons, after independently reviewing the record, we agree with counsel's conclusion that no arguably meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be wholly frivolous under Anders, and grant counsel's request to withdraw. Ashland County, Case No. 12 COA 014 6 {¶15} For the foregoing reasons, the judgment of the Court of Common Pleas, Ashland County, Ohio, is affirmed. By: Wise, J. Gwin, P. J., and Farmer, J., concur. ___________________________________ ___________________________________ ___________________________________ JUDGES JWW/d 1003 Ashland County, Case No. 12 COA 014 7 IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsCHAD E. MCQUILLEN Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 12 COA 014 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the court of Common Pleas of Ashland County, Ohio, is affirmed. Costs assessed to appellant. ___________________________________ ___________________________________ ___________________________________ JUDGES

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