Update: On December 22, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Update: On May 26, 2020, the Court issued this order requesting supplemental briefing in this case:

Sua sponte, parties ordered to file supplemental briefs addressing the following issues: (1) whether R.C. 2941.51(D) authorizes a court in a criminal case to order a defendant to pay a portion of the cost of appointed counsel; (2) if so, whether that court’s order of appointed-counsel fees may be included in a judgment of conviction; and (3) the extent to which the assessment of appointed-counsel fees is restricted, if at all, by R.C. 120.03(B)(6), 3 05-26-2020 Ohio Adm.Code 120-1-05(C), and any other relevant statutes, administrative provisions, or agency-promulgated rules governing marginal indigency. The parties should explain how the foregoing provisions apply to the facts of this case. All briefs shall be filed within 21 days. No responsive briefs permitted.

“The statute doesn’t say how to make the determination, so why did the court of appeals exceed its authority by saying how to do so?”

Justice Stewart, to the prosecutor

“What requirement under the statute wasn’t met?”

Justice Fischer, to counsel for the defendant

On December 10, 2019, the Supreme Court of Ohio heard 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. The trial judge ordered and received a presentence investigation report (“PSI”) which stated that Taylor received Social Security Disability insurance benefits of $683 per month, and other information about Taylor’s health and employment history. At the sentencing hearing, the judge stated that he had received the PSI and reviewed it carefully. The judge 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, the judge 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 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.

The dissenting judge 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.”)

Read the oral argument preview of the case here.

Key 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.)

At Oral Argument

Arguing Counsel

Sarah Hutnick, Assistant Prosecuting Attorney, Montgomery County, for Appellant State of Ohio

Marshall G. Lachman, Springboro, for Appellee Robert Taylor

State’s Argument

The issue before the court is whether R.C. 2941.51(D) requires the trial court to make an explicit affirmative finding on the record that a defendant has the ability to pay some or all of the cost of his or her legal representation.  The court of appeals held that the trial court must do so. It is the state’s position that the statute does not explicitly state or require that, nor does the statute require a hearing to determine the defendant’s ability to pay. The statute only requires that the trial court consider, and then determine, the defendant’s ability to pay. The record should support that consideration, and if the record does not, then the trial court has abused its discretion.

In this case the trial court’s consideration of the PSI report supports the determination that this defendant has the ability to pay.  The PSI contained information about the defendant’s work history, his education level, the fact that he is out on community control, his age, health, and the benefits he receives. That was enough to support the necessary determination in this case.

There is a difference between setting forth how the ability-to-pay determination is made and requiring an explicit finding. A finding is a legal finding that must be made on the record. A determination is something that the court can make on its own without having a hearing. It need not be made explicitly. The statute does not require that an explicit finding be made on the record. It merely requires an ability-to-pay determination be made.

The appeals court is requiring the trial court to say the court finds that the defendant has the ability to pay and is reasonably expected to pay $130. But that is nowhere in the statute. Once a determination is made, that is all that is required. As with any financial sanction, trial courts are allowed some leeway, and are not required to say specific words or talismanic phrases to support their findings as long as the record supports those findings.

If the defendant failed to pay any of the fees or costs assigned to him, he would not be sent to prison. His community control time could be extended, but he would not be sent to prison if he failed to pay. These are merely civil, not punitive sanctions. The court appointed counsel fees only amounted to $130. The amount of fees that the trial attorney billed the court in this case far exceeded that amount. So, the fact that the trial court reduced the amount to such an extent supports the fact that the court did make the proper considerations.

Taylor’s Argument

While the defendant concedes there was no objection below to the court’s handling of the determination of ability to pay, even with a plain error analysis, a reviewing court must look at whether a trial court complied with the statutory requirements.

The imposition of all or part of counsel fees is different from the imposition of any other kind of financial sanction such as restitution, court costs, and fines. The presumption in R.C. 2941.51 (D) is that court appointed counsel fees are to be paid by the county. The statute does include a provision whereby all or part of that cost could be paid by someone who has a reasonable expectation of being able to pay it. The question before this court today is how a trial court should overcome that presumption.

The Second District held that there should be an explicit or an affirmative finding on the record. While the statute doesn’t explicitly say that, it is not unreasonable for the Second District to have held that there needs to be more than a vague reference to the PSI, especially when dealing with counsel fees. Such a finding would give the appellate court a basis on which to evaluate the determination. In the conflict case, the Twelfth District calls this an affirmative determination of the defendant’s ability to pay. In that Twelfth District case, the judgment entry apparently contained explicit findings that the defendant was able bodied and capable of working once released from prison.  There are no such findings in this case.

Appellate counsel in this case raised the imposition of all the financial sanctions as error. The Second District specifically held only the imposition of counsel fees of $130 was in violation of the statute. That bolsters Mr. Taylor’s argument that this provision is different.

What Was On Their Minds

Plain Error

Defense counsel was present at sentencing, noted Justice DeWine. Was there any objection made? Did the court below review for plain error? Why wouldn’t plain error review apply when there is no objection made? Any reason this shouldn’t be reviewed for plain error? If the court reviewed it for plain error, then the obligation would have been on the defendant to show that the result would have been different had the court made the finding. I’m not sure the record could support that, could it? The point of plain error is if it is not clear cut, if you can’t demonstrate prejudice from the record, then the defendant would lose. We don’t say that plain error doesn’t apply simply because the statute might have been violated, particularly when there is nothing explicit in the statute that says that. Haven’t there been all kinds of times this court has applied plain error when a statute has been violated by a lower court?

Determination of Ability to Pay

What would a judge take into consideration to determine an ability to pay, asked Chief Justice O’Connor? What about expenses, obligations and needs of the defendant?  The amount he paid for rent, what it cost to feed him, medical expenses and transportation, and any dependents or obligations–was any of that in the PSI? If not, how is the judge going to weigh what he has coming in versus what he has going out and whether he is able to meet those obligations? Did the record support the determination that was made here? Isn’t Mr. Taylor on disability? Does his work history have anything to do with the determination?

Basis of Appellate Review

How can the reviewing court evaluate whether the trial court has complied with the statutory requirements, asked Justice Stewart? If the trial court doesn’t say anything, then what does the court of appeals do to review? Since the statute doesn’t say how to make the determination, why did the court of appeals exceed its authority by saying how to do so? If the statute doesn’t explicitly say how the determination should happen, why can’t the appeals court set forth how the determination should happen?

Statutory Requirements

Where in the statute does it say that the trial court must consider the defendant’s ability to pay, and make an explicit finding that the defendant has the ability to pay, asked Justice Fischer? What provision of the statute wasn’t met?

Must there be be a hearing on ability to pay, asked Chief Justice O’Connor? Was there such a hearing here?

Does the statute say consider or determine, asked Justice Stewart?  Is a finding by the court that the defendant has the future ability to pay good enough? Does that exceed the trial court’s authority?

Doesn’t the statute require a determination whether the defendant can pay all or part of the assessment, asked Justice Donnelly? How can the court do that without having an inquiry on the record and make that determination whether to sever some of the costs? Wouldn’t it be better for reviewing courts to be assured that the determination was made and the trial judge made the finding on the record? If the trial court had simply referred to the PSI with more specificity, would that have satisfied the statute?

Consequences of Failure to Pay

What would be the consequences for the defendant not paying if he were ordered to do so, asked Chief Justice O’Connor? What happens if he doesn’t pay the supervision fee or the costs? If he doesn’t pay and he doesn’t do community service, then what happens? Is the supervision fee regarded as a civil matter?

How it Looks from the Bleachers

To Professor Emerita Bettman

I don’t feel quite as sanguine as student contributor Madeline Pinto that this is a clear win for Taylor.  I agree that the Chief and Justices Stewart and Donnelly are likely to rule in favor of Taylor. All of them clearly seem to think more was required under the statute than a reference to what was in the PSI, and that a specific determination of ability to pay based on Taylor’s specific situation and a finding on this are necessary, and that the record in this case doesn’t support the determination made by the trial court. I also think they will agree that since the statute doesn’t explicitly say how the ability to pay determination should be made, the appeals court is well within its authority to set forth how the determination should happen.

BUT then there’s the plain error thing.  Justice DeWine was clearly totally hung up about it and was never satisfied by the answers from defense counsel. As he stated in his questioning, he thinks had the court reviewed for plain error the burden would have been on the defendant to show that the result would have been different, and he doesn’t appear to think the record supports that. How plain error works in a certified conflict case isn’t clear to me.

Justice Kennedy, who is very big on not adding things to statutes that aren’t there, will probably be of the view that there is nothing in the statute that requires the trial court to make an explicit affirmative finding on the record that a defendant has the ability to pay some or all of the cost of their counsel fees and that the record in this case supports the trial court’s determination. Justice Fischer’s questions suggest that is where he is, too, which leaves Justice French, who asked no questions during the argument.  She tends to favor procedural fairness when at issue, but is also a stickler for proper procedure, like objections when required in the trial court. I think her vote will be determinative.

To Student Contributor Madeline Pinto

I think the Court will most likely rule in Taylor’s favor. Chief Justice O’Connor and Justices Stewart and Donnelly all appeared persuaded by Taylor’s arguments. Chief Justice O’Connor noted that in order to properly determine a defendant’s ability to pay, a trial court must evaluate the defendant’s living expenses in addition to the defendant’s potential for employment and income. Chief Justice O’Connor appeared concerned that the trial court’s consideration of the PSI alone was not sufficient to properly determine Taylor’s ability to pay because the PSI did not encompass Taylor’s living expenses.

Justice Stewart appeared similarly skeptical of the State’s arguments. In particular, Justice Stewart questioned how a court of appeals could review a trial court’s decision as to a defendant’s ability to pay without an explicit finding on the record. Justice Stewart also seemed unconvinced by the State’s argument that the appellate court had exceeded its authority by setting forth how the determination of a defendant’s ability to pay should be carried out, noting that the statute is silent as to how exactly a court should make the ability to pay determination. Additionally, Justice Donnelly suggested that the statute impliedly requires a trial court to make an explicit determination on the record because the plain language of the statute specifies that the court must determine whether a defendant can pay the whole cost or only part of the cost of his legal representation and a trial court cannot make this determination without having an inquiry on the record.

Justice DeWine, however, appeared highly concerned that the appellate court failed to review the trial court’s decision for plain error even though Taylor’s counsel clearly failed to raise any objection to the court appointed counsel fees at sentencing. Justice DeWine asked both parties about this failure and seemed convinced that the appellate court did not review for plain error because the record did not reflect that Taylor was required to demonstrate prejudice by showing that the outcome at the trial level would have been different had the trial court made an explicit finding on the record as to his ability to pay. Despite Justice DeWine’s doubts, because Chief Justice O’ Connor and Justices Stewart and Donnelly seemed to favor Taylor’s position, I think that the Court will most likely rule in Taylor’s favor.