“Here, there is simply no textual basis to support requiring a trial court to make explicit findings on the record regarding the defendant’s ability to pay before assessing court-appointed-counsel fees.”

Justice Fischer, lead opinion

“Nothing in the Revised Code explicitly grants trial courts the authority to assess appointed-counsel fees as part of a criminal case.”

Justice Donnelly, partial dissent

On December 22, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Taylor, 2020-Ohio-6786. In a fractured opinion, the Court held that in a criminal case, the trial court can assess court-appointed counsel fees against a defendant without making specific findings on the record justifying the fees, but that such an order cannot be included as part of the defendant’s sentence. The fees can be ordered at the time of sentencing but should be listed separately in the sentencing entry as a civil matter. The lead opinion was written by Justice Fischer, joined by Chief Justice O’Connor and Justice French.  Justice DeWine concurred in part and dissented in part, joined by Justice Kennedy.  Justice Donnelly concurred in part and dissented in part joined by Justice Stewart.

In addition to the holdings in the case, the lead opinion recognized two best practices—one was for the trial court to make specific findings justifying the fee assessment to help the parties and to make for more meaningful appellate review. The other was to include the fees in a separate entry. 

This case was argued on December 10, 2019.  The case was accepted on conflict certification and discretionary review, and the two cases were consolidated.  The certified conflict was

“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?”

On May 26, 2020, the Court sua sponte requested additional briefing on 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), Ohio Adm.Code 120-1-05(C), and any other relevant statutes, administrative provisions, or agency-promulgated rules governing marginal indigency.

Ultimately, the case was deemed submitted July 7, 2020, when the supplemental briefing had been completed and filed.

Case Background

After appellee Robert Taylor was indicted, the trial court found him to be indigent and appointed counsel to represent him. As part of a plea agreement with appellant state of Ohio, Taylor pleaded guilty to kidnapping and gross sexual imposition of a person younger than thirteen. The judge sentenced Taylor to an agreed upon sentence of five years of community control. In addition, the court ordered Taylor to pay a $250 supervision fee, court costs, and $130 to the assigned-counsel-budget fund, and then entered judgment against Taylor for all these costs. It is this last cost, the appointed-counsel fee, that is at issue in this appeal. All three costs were listed in the “Financial Obligations” portion of Taylor’s sentencing entry. When the sentencing entry was journalized, Taylor appealed.

Taylor’s Appeal

On appeal Taylor argued the trial court erred in ordering the $130 counsel fee and also alleged his lawyer was ineffective for failing to challenge this fee. Taylor argued that his pre-sentence investigation report (“PSI”) did not conclusively establish his ability to pay. His only source of income was from Social Security disability benefits. Taylor also argued the trial court erred by failing to make a finding about his inability to pay and his lawyer was ineffective for failing to raise that issue at the appropriate time.

The Second District reversed, finding that the trial court could not order Taylor to pay the counsel fees without first determining his financial ability to pay them. The appeals court concluded that the county retains the duty to pay these fees unless the record reflects an explicit finding by the trial court regarding the defendant’s ability to pay and evidence supporting that finding.  The appeals court acknowledged contrary appellate authority and certified a conflict.

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 and the analysis here.

Key Precedent

R.C. 120.03(B)(6) (The Ohio Public Defender Commission shall establish procedures for the assessment and collection of the costs of legal representation that is provided by public defenders or appointed counsel.)

R.C. 120.36(C) (The application fee for court-appointed counsel is separate from and in addition to any other amount assessed against a person who is found to be able to contribute toward the cost of the person’s legal representation pursuant to R.C. 2941.51(D).)

R.C. 2925.511 (The trial court may order an offender who is convicted of or pleads guilty to a drug abuse offense to pay the costs of a positive drug test.)

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

R.C. 2929.18(A)(5)(a) (Financial sanctions imposed upon a felony offender may include reimbursement by the offender of any or all of the costs of sanctions incurred by the government.)

R.C. 2941.51(A) (Counsel appointed to a case shall be paid by the county for their services and expenses that the trial court approves.)

R.C. 2941.51(D) (The fees and expenses approved by the court under R.C. 2941.51(A) shall not be taxed as a part of the costs and shall be paid by the county. 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.)

R.C. 2947.14(A) (If a fine is imposed as a sentence or a part of a sentence, the court may order that the offender be committed to the jail or workhouse until the fine is paid if the court determines at a hearing that the offender is able, at that time, to pay the fine but refuses to do so.)

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. 2949.111 (The General Assembly omitted court-appointed-counsel fees when listing the priority of assignments for all a defendant’s financial obligations but included those obligations that are required to be included in a sentence by statute.)

Ohio Adm. Code 120-1-05(C) (A county’s reimbursement, recoupment, contribution, or partial payment program to recover a portion of the expense of appointed-counsel fees shall not require any payments, compensation, or in-kind services from an applicant whose gross income is equal to or less than one hundred twenty-five per cent of the federal poverty level.)

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 fees on a defendant must enter a separate civil judgment for the attorney fees that the court finds the defendant has the ability to repay.) 

State v. Crenshaw, 145 Ohio App.3d 86 (8th Dist. 2001) (R.C. 2941.51 does not authorize the assessment of attorney fees as a part of a defendant’s sentence and so the court must enter a separate civil judgment for the fees that the court finds the defendant has the ability to pay.)

State ex rel. Colvin v. Brunner, 2008-Ohio-5041 (The Court “cannot generally add a requirement that does not exist in the Constitution or a statute.”)

State v. Vanzandt, 2015-Ohio-236 (A statute’s silence or lack of clarity on an issue often connotes ambiguity.)

State v. Paige, 2018-Ohio-813 (Trial courts “must impose only those sentences provided for by statute.”)

State v. Taylor, 2020-Ohio-3514 (“[T]he proper role of a court is to construe a statute as written without adding criteria not supported by the text.”)

Merit Decision

Analysis

The lead opinion starts with the text of R.C. 2941.51, one of several statutes which address the process of appointing and paying counsel for criminal defendants. That statute provides that fees and expenses of appointed counsel shall be paid by the county, as the trial court approves, and shall not be taxed as costs. The statute also provides that if the represented person can afford it, that person shall pay the county what he or she can reasonably be expected to pay. So, the lead opinion moves on to deciding who can impose these fees, and how and when they may be imposed.

Trial Court Can Impose Court-Appointed Counsel Fees

Position of the Parties

The first issue the lead opinion addresses is whether the trial court in a criminal case can impose court-appointed counsel fees.  Taylor argues that a trial court does not have the authority to impose these fees in its judgment of conviction because R.C. 2941.51 does not contain the express authorization allowing this. He argues that the trial court must enter a separate civil judgment for any part of the fees the court finds the defendant has the ability to pay. The state does not disagree with Taylor about the lack of express statutory authorization but relies on the requirement in the statute that a person who has received court-appointed counsel must pay the county what the person is able. Amicus Ohio Public Defender’s Office argues that R.C. 120.03(B)(6) gives the Ohio Public Defender Commission the authority to establish procedures for the assessment and collection of the costs of legal representation it and other appointed counsel provide. But the lead opinion notes that R.C. 120.03 does not expressly state who has the authority to order a person to pay court-appointed counsel fees. The lead opinion resolves this question by reading R.C. 2941.51 in pari materia with provisions in R.C. Chapter 120 and concludes that when read together it is clear by implication that in a criminal case the trial court has the authority to impose court-appointed counsel fees on a defendant.

No Explicit Findings Required by Trial Court

The state argues that the language in R.C. 2941.51(D) is clear that the trial court does not need to make explicit findings before imposing a payment obligation, and to hold otherwise would require the Court to add words to the statute. Taylor argues that the language in the statute is ambiguous and that the appeals court did not err in holding that the trial court must make explicit findings about a defendant’s ability to pay all or some part of appointed-counsel fees.  The lead opinion holds that while R.C. 2941.51(D) is ambiguous in some instances, it is unambiguous on the point that the trial court is not required to make explicit findings on the record before assessing fees.  

Best Practice

Even though the lead opinion finds that R.C. 2941.51 does not require the trial court to make explicit findings before assessing court-appointed counsel fees against the defendant, the lead opinion states that making such findings explicitly on the record is nonetheless the best practice. Doing so gives the parties a better understanding of the court’s reasoning and makes for more meaningful appellate review of this issue. 

Factors To Be Considered in Assessing Counsel Fees

Factors the trial court should consider in determining whether a defendant can be expected to pay these fees are similar to those the court considers in evaluating a defendant’s ability to pay court costs pursuant to R.C. 2947.23. In doing so, the trial court should be guided by various administrative provisions and agency rules governing matters of indigency and recoupment.

Bottom Line, this Segment

The Second District erred in holding that the trial court erred in not making explicit findings on Taylor’s ability to pay the court-appointed counsel fees.

Court-Appointed Counsel Fees Cannot Be Part of Defendant’s Sentence

The statute is silent on when court-appointed counsel fees can be imposed. Here, the lead opinion decides that the language in R.C. 2941.51 and related statutes compel the conclusion that while the fees can be imposed at sentencing, they cannot be included as part of the defendant’s sentence but must be imposed in a separate entry. R.C. 2941.51 explicitly states that court-appointed-counsel fees shall not be taxed as costs, which are required to be included as part of the defendant’s sentence.  And while the General Assembly has specifically required courts to include financial sanctions, fines and court costs as part of the defendant’s sentence, R.C. 2941.51 is silent about when the trial court can order the defendant to pay counsel fees. Since trial courts can only impose sentences provided for by statute, and since there is no statutory authority allowing a trial court to assess court-appointed counsel fees as part of a sentence, such an order cannot be included as part of the defendant’s sentence.

Bottom Line, this Segment, and Best Practice

Court-appointed counsel fees can be assessed at the sentencing hearing but cannot be included as part of the defendant’s sentence. If this fee assessment is included in the sentencing entry, the court must note that the assessment of this counsel fee is a civil assessment and is not part of the defendant’s sentence. The best practice would be to include the order in a separate entry, apart from the sentence. 

In this case, the trial court correctly assessed the fees at the sentencing hearing, but improperly listed the fees as “financial obligations” and “reimbursement” in the sentencing entry. Court-appointed counsel fees are not reimbursements in the criminal context; they are costs. So, the inclusion of those fees in the financial obligation and recoupment section was error. The portion of the sentencing entry which imposed court-appointed counsel fees is vacated, but since the fee order was not lawfully part of Taylor’s sentence, Taylor does not need to be re-sentenced. The lead opinion expresses no opinion on whether a new order imposing court-appointed counsel fees on Taylor is in order.

Justice DeWine’s Position

Justice DeWine agrees that court-appointed counsel fees were improperly included as costs of prosecution, so he agrees that the judgment of the Second District should be reversed and the trial court’s sentencing entry including the court-appointed-counsel fees should be vacated. But he would remand the case to the trial court to issue a separate entry imposing the fees, noting that Taylor forfeited this issue by failing to object to the imposition of the fees.

Justice Kennedy signed on to DeWine’s partial concurrence, partial dissent.

Justice Donnelly’s Position

Justice Donnelly agrees with the lead opinion that the judgment of the Second District should be reversed and that the trial court’s assessment of appointed counsel fees against Taylor should be vacated. But he would find the trial court order assessing those fees to be clearly erroneous, to the extent it is authorized or reviewable at all. He would vacate the fee order entirely, and not give the trial court any chance to reassess appointed counsel fees.

Donnelly outlines the steps that must occur before an indigent criminal defendant can be ordered to pay the county for appointed-counsel fees under R.C. 2941.51(D). First, the criminal proceedings must be over.  Next, appointed counsel must submit a request for the fees which the court must approve.  The court then must certify the fees and any other expenses to the county auditor, who issues a warrant on the county treasurer for the amount certified. The county treasurer then pays the warrant, and only then is the county due repayment of an amount the defendant can reasonably be expected to pay.

It is Donnelly’s position that nothing in the Revised Code expressly or impliedly grants trial courts the authority to assess court-appointed counsel fees as part of a criminal case. He gives examples of where the General Assembly has explicitly allowed this.  For this reason, he is not convinced that at the time of a criminal defendant’s sentencing, the trial court can do anything more than notify the defendant that he may later be billed for some of the counsel fees paid by the county. He also finds it consequential that the legislature expressly granted the Public Defender Commission the authority to regulate the assessment of appointed counsel fees pursuant to R.C. 120.03(B)(6).

Donnelly goes on to assume for the sake of argument that a trial court does have the authority at sentencing to enter a civil money judgment against the defendant for these yet unpaid fees. If this were the case, the judgment must comply with the county’s appointed-counsel-fee-recoupment program which must in turn comply with the Ohio Public Defender Commission standards, which make individual counties responsible for developing their own recoupment programs consistent with the Commission’s standards. Involvement of trial court judges in this process is permissible but not required. Donnelly explains this in great detail in paragraphs 46-50 of his opinion. And without knowledge of the recoupment rules in Montgomery County, “we do not know if the trial court is the proper entity, if a criminal sentencing hearing is the proper time, or if $130 is the proper amount to assess against a defendant in Taylor’s circumstances,” Donnelly wrote.  But what is known are the Commission’s income-eligibility collection rules for appointed counsel, and given Taylor’s approximate $8196 gross annual income, Donnelly would find that the trial court could not assess court-appointed counsel fees in this case. 

“To the extent that it is possible to review the judgment ordering Taylor to pay $130 toward the cost of his appointed counsel, the judgment is erroneous. The error cannot be cured by placing the order elsewhere in a criminal sentencing entry or in a standalone entry. Accordingly, I would vacate the order to pay appointed-counsel fees on the merits and leave no room for the possibility of a new fee order,” Donnelly concludes.  Justice Stewart signed on to this opinion.

Case Disposition

The certified conflict question is answered in the negative. The case holding is that a trial court need not make explicit findings before assessing court-appointed counsel fees on a defendant who received representation. The trial court may assess these fees at sentencing but cannot include them as part of the defendant’s sentence. The judgment of the Second District is reversed and the portion of the sentencing entry imposing court-appointed counsel fees on Taylor is vacated.

Trial Court Judge (decision vacated in part)

Montgomery County Common Pleas Court Judge Dennis J. Adkins 

Second District Panel

Majority (reversed)

Opinion authored by Judge Jeffrey Froelich, joined by Judge Mary Donovan

Dissent

Judge Jeffrey M. Welbaum

Concluding Observations

I knew something was up when the Court asked for supplemental briefing, sua sponte, and from start to finish the case took more than a year to decide. Student contributor Madeline Pinto predicted a win for Taylor; I was less certain that was likely to happen. It’s actually hard to say who “won” here. Hopefully, though, trial courts will adopt the lead opinion’s suggested best practices in this area.