Oral Argument Preview: What is Required of Trial Courts Before Ordering Defendant to Pay Court-Appointed Counsel Fees? State of Ohio v. Robert Taylor

On December 10, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Robert Taylor, 2018-1315. At issue in this case is whether, before ordering a defendant to pay court-appointed counsel fees pursuant to R.C. 2941.51(D), the trial court must make an explicit finding that the defendant has, or reasonably may be expected to have, the means to pay some or all of the cost of his or her legal representation. The case was accepted on discretionary appeal and conflict certification, and was consolidated with case number 2018-1243.

Case Background

On July 10, 2017, as part of a plea agreement, Robert Taylor pleaded guilty to kidnapping and gross sexual imposition of a person younger than thirteen. Montgomery County Common Pleas Court Judge Dennis J. Adkins ordered and received a presentence investigation report (“PSI”) which stated that Taylor received Social Security Disability insurance benefits of $683 per month for a mental disability. At the sentencing hearing, Judge Adkins stated that he had received the PSI and reviewed it carefully. Judge Adkins sentenced Taylor to a previously agreed upon sentence of five years of community control, designated Taylor as a Tier II sex offender, and ordered Taylor to have no contact with the victim. Additionally, Judge Adkins ordered Taylor to pay, among other fees, court-appointed counsel fees of $130 as a separate financial obligation.

Taylor appealed his sentence, arguing that the trial court improperly imposed court-appointed counsel fees.

The Appeal

In a split decision authored by Judge Jeffrey Froelich, and joined by Judge Mary Donovan, the Second District Court of Appeals reversed the trial court’s judgment as to the imposition of court-appointed counsel fees and remanded for the filing of an amended judgment entry omitting the imposition of court-appointed counsel fees.

The majority found that the trial court erred in imposing court-appointed counsel fees because the trial court failed to make an explicit finding that Taylor had, or reasonably could be expected to have, the means to pay some or all of the cost of his legal representation. An explicit ability to pay determination must be made and cannot just be inferred from a review of the PSI.

Judge Jeffrey M. Welbaum dissented. He would find that the trial court satisfied its duty to make an ability-to-pay determination under R.C. 2941.51(D) by stating that it reviewed a PSI containing information indicating that Taylor had the ability to pay court-appointed counsel fees.

Certified Conflict Question

“Prior to ordering a defendant to pay court-appointed counsel fees pursuant to R.C. 2941.51(D), must the trial court make an explicit finding that the defendant has or reasonably may be expected to have the means to pay some or all of the cost of his or her legal representation?”

Certified Conflict Case

State v. Christman, 2009-Ohio-6555 (12th Dist.) (“A trial court complies with its duty under R.C. 2941.51(D) to make an affirmative determination on the record, when the record indicates that the court considered a PSI containing the defendant’s financial and employment information.”)

Key Statutes and Precedent

R.C. 2947.23 (In all criminal cases, the judge or magistrate is required to include the costs of prosecution in the defendant’s sentence and render a judgment against the defendant for those costs.)

R.C. 2929.18 (A trial court may sentence a felony offender to a financial sanction, such as restitution or a fine.)

R.C. 2929.19(B)(5) (Before imposing financial sanctions under R.C. 2929.18, the trial court is required to consider the felony offender’s present and future ability to pay the sanction.)

R.C. 2941.51(D) (The county is required to pay the compensation and expenses of court appointed counsel. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the legal services rendered, the person shall pay the county an amount that the person reasonably can be expected to pay.)

Galion v. Martin, 3d Dist. Crawford No. 3-91-6, 1991 WL 261835 (Dec 12, 1991) (Under R.C. 2941.51(D), a court imposing court-appointed attorney’s fees on a defendant has a duty to make an affirmative determination on the record that the defendant has, or reasonably may be expected to have, the means to pay all or some part of the cost of the legal services rendered.)

State v. Culver, 2005-Ohio-1359 (2d Dist.) (A court imposing restitution on a felony offender is required to state expressly on the record that it considered the offender’s ability to pay.)

State v. Philbeck, 2015-Ohio-3375 (2d Dist.) (Although it is preferable, a court imposing financial sanctions on a felony offender is not required to state expressly on the record that it considered the offender’s ability to pay.)

State v. Mitchell, 2016-Ohio-1422 (2d Dist.) (A trial court errs when it imposes court-appointed counsel fees on a defendant without determining the defendant’s ability to pay those fees and notifying the defendant of the requirement at sentencing.)

State v. Shirk, 2016-Ohio-7692 (2d Dist.) (To impose court-appointed counsel fees properly, the trial court must 1) consider the defendant’s ability to pay and the amount thereof and 2) notify the defendant of the imposition of court-appointed counsel fees at sentencing.)

State v. Talley, 2016-Ohio-8010 (6th Dist.) (To comply with its duty under R.C. 2941.51(D) to make an affirmative determination on the record, the trial court is required to make a specific finding regarding the defendant’s ability to pay court-appointed counsel fees and that finding must be supported by clear and convincing evidence of record.)

State’s Argument

The Second District’s decision impermissibly imposes an additional requirement on trial courts that was not intended by the legislature. The plain language of R.C. 2941.51(D) does not require a trial court to make an explicit finding regarding whether the defendant has, or reasonably may be expected to have, the ability to pay court-appointed counsel fees. The statute merely requires that the trial court make an affirmative finding that the defendant has the ability to pay all or part of the cost of his or her legal representation. Although the record must support a finding that the defendant has the ability to pay court-appointed counsel fees, the trial court’s decision to impose court-appointed counsel fees pursuant to R.C. 2941.51(D) in itself provides sufficient evidence that the court made such an affirmative finding. Thus, the trial court’s statement that it considered a PSI containing information about Taylor’s age, work history, education, and benefits was sufficient to comply with the requirement that the court make an affirmative finding under R.C. 2941.51(D).

The approach of the appeals court in Christman to R.C. 2929.19(B)(5) should be applied to R.C. 2941.51(D). Under R.C. 2929.19(B)(5), a trial court need not expressly state on the record that it considered an offender’s ability to pay prior to the imposition of financial sanctions. Further, a trial court complies with its duty to determine the offender’s ability to pay under R.C. 2929.19(B)(5) where the trial court considers a PSI including information about the offender’s age, health, education, and work history. The requirements for imposing court-appointed counsel fees under R.C. 2941.51(D) are very similar to the requirements for imposing financial sanctions under R.C. 2929.19(B)(5). Under both statutes, the trial court must determine the offender’s ability to pay prior to the imposition of financial sanctions or court-appointed counsel fees. Additionally, neither statute expressly requires the trial court to make an explicit finding regarding the offender’s ability to pay. Moreover, neither the plain language of R.C. 2941.51(D) nor the legislative intent behind the statute provides a clear reason why R.C. 2941.51(D) should be treated any differently than statutes used to impose financial sanctions, including R.C. 2929.19(B)(5). Therefore, the Christman court’s approach to R.C. 2929.19(B)(5) should be applied to R.C. 2941.51(D) and this Court should find that a trial court satisfies its duty to make an ability-to-pay determination under R.C. 2941.51(D) by explicitly stating that it considered a PSI containing information about the offender’s age, health, work history, and education.

Taylor’s Argument

Under R.C. 2941.51(D), a trial court must make an explicit finding that the defendant has, or reasonably may be expected to have, the means to pay some or all of the costs of his or her legal representation before imposing court-appointed counsel fees. The court-appointed counsel fees governed by R.C. 2491.51(D) are distinguishable from costs and other financial sanctions. Specifically, unlike statutes governing the imposition of costs and financial sanctions, R.C. 2941.51(D) does not provide any guidance for the imposition of court-appointed counsel fees.

The Second District’s holding that a trial court must make an explicit ability-to-pay determination under R.C. 2941.51(D) did not impermissibly impose an additional requirement on trial courts that was not contemplated by the legislature. Because the plain language of R.C. 2941.51(D) is silent as to who should determine the defendant’s ability to pay court-appointed counsel fees, the Second District was required to interpret the statute in order to ascertain the legislature’s intent. Thus, it was reasonable for the Second District to infer that the legislature intended the trial court to make the ability-to-pay determination and that the trial court must then make explicit findings regarding the defendant’s ability to pay before imposing court-appointed counsel’s fees.

Further, the Second District’s decision in this case is not in direct conflict with the Twelfth District’s decision in Christman. The Twelfth District’s concept of “affirmative determination” is synonymous with the Second District’s concept of “explicit findings.” Additionally, the Twelfth District’s decision in Christman is distinguishable from the Second District’s decision in this case because the trial court in Christman based its ability-to-pay determination on far more findings of fact than the trial court did here. Thus, had the standard set forth in Christman been applied to the present facts, the Twelfth District most likely would have reached the same conclusion as the Second District, namely that the trial court failed to make either an affirmative or explicit determination on the record regarding the defendant’s ability to pay court-appointed counsel fees as required by R.C. 2941.51(D). Therefore, whether the court labels the requisite finding an affirmative determination or an explicit finding, the trial court failed to do either and, thus, did not comply with the requirements of R.C. 2941.51(D) prior to imposing court-appointed counsel fees on Taylor.

State’s Proposed Proposition of Law and Response to Certified Conflict Question

A trial court need not make an explicit finding that the defendant has, or reasonably may be expected to have, the means to pay some or all of the cost of his or her legal representation.

Taylor’s Response to Certified Conflict Question

A trial court must make an explicit finding that the defendant has, or reasonably may be expected to have, the means to pay some or all of the cost of his or her legal representation.

Student Contributor: Madeline Pinto