[Cite as State v. Rodriguez,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-20-07

v.

FLORENTINO RODRIGUEZ, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Trial Court No. 19 CR 128

Judgment Affirmed in Part and Vacated in Part

Date of Decision: July 6, 2021

APPEARANCES:

Autumn D. Adams for Appellant

Rebeka Beresh for Appellee Case No. 13-20-07

ZIMMERMAN, J.

{¶1} Defendant-appellant, Florentino Rodriguez (“Rodriguez”), appeals the

February 19, 2020 judgment entry of sentence of the Seneca County Court of

Common Pleas. We affirm in part and vacate in part.

{¶2} On July 3, 2019, the Seneca County Grand Jury indicted Rodriguez on

the following criminal charges: Count One of trafficking in cocaine in violation of

R.C. 2925.03(A)(2), (C)(4)(e), a first-degree felony; Count Two for trafficking in

marijuana in violation of R.C. 2925.03(A)(2), (C)(3)(d), a second-degree felony;

and Count Three of possessing of criminal tools in violation of R.C. 2923.24(A),

(C), a fifth-degree felony.1 (Doc. No. 2). Counts One and Two of the indictment

included specifications indicating that the offenses were committed in the vicinity

of a juvenile and for property forfeiture. (Id.).

{¶3} Rodriguez appeared for arraignment on July 17, 2019 and entered pleas

of not guilty. (July 17, 2019 Tr. at 6); (Doc. No. 6). However, on January 27, 2020

Rodriguez withdrew his pleas of not guilty and entered guilty pleas under a

negotiated-plea agreement. (Doc. Nos. 23, 24). In exchange for his guilty pleas to

Counts One, Two, and Three (as charged) in the indictment (including the

1 On January 27, 2020, the State later sought amendment of the indictment under Crim.R. 7(D) as to a clerical error in Count Two. (Doc. No. 22). (See Jan. 27, 2020 Tr. at 4-5). Specifically, the State sought the deletion of the language describing the penalty as “a minimum mandatory term”, which the trial court later granted on January 27, 2020 by a judgment entry file stamped January 29, 2020. (Doc. Nos. 22, 25). (See Jan. 27, 2020 Tr. at 4-5).

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specifications as to Counts One and Two) the parties agreed to a joint-sentencing

recommendation. (Id.). Specifically, the parties agreed that Rodriguez pay

($17,500) in mandatory fines as to Counts One and Two “unless determined

indigent” and to “pay court costs”.2 (Doc. Nos. 23, 24, 27); (Feb. 18, 2020 Tr. at 2-

17). (See Jan. 27, 2020 Tr. at 4-18). The trial court conducted a Crim.R. 11

colloquy, accepted Rodriguez’s guilty plea, found Rodriguez’s guilty of the

offenses, set the sentencing hearing for a later date, and the parties jointly agreed to

waive the preparation of a presentence investigation report (“PSI”). (Id.); (Id.).

Important to appellant’s appeal, prior to his sentencing hearing, Rodriguez filed an

affidavit of indigency under R.C. 2925.03(L).3 (Doc. No. 26).

{¶4} On February 18, 2020, the trial court sentenced Rodriguez consistent

with the parties’ agreement. (Doc. Nos. 23, 28). Specifically, the trial court ordered

Rodriguez to serve an indefinite mandatory prison term of five years under Count

One; an indefinite prison term of five years under Count Two; and a definite prison

term of 10 months as to Count Three. (Doc. No. 28). The indefinite mandatory

prison term under Count One; the indefinite prison term under Count Two, and the

2 In addition to the foregoing, the parties agreed to recommend a mandatory term as to Count One and a stated term as to Count Two of five years (each) to be served concurrently to one another and concurrent to a stated prison term of 10 months as to Count Three. (Doc. No. 23). Moreover, the parties agreed to recommend a total stated mandatory indefinite prison term of five years with a maximum indefinite prison term of seven and a half years. (Id.). 3 Notably, there is not a division L under R.C. 2925.03. See R.C. 2925.03. Indeed, the trial court’s determination of indigency as to the offender’s ability to pay the mandatory fine herein is under R.C. 2929.18(B)(1). See R.C. 2929.18(B)(1).

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definite prison term under Count Three were ordered to be served concurrently to

one another for a total stated indefinite mandatory prison term of a minimum of five

years with a maximum indefinite prison term of seven and a half years.4 (Id.). Then,

the trial court waived the $17,500 in mandatory fines and ordered Rodriguez to pay

the costs of prosecution, court-appointed-counsel fees, and any fees under R.C.

2929.18(A)(4) as well as all fees allowed under R.C. 2947.23 pursuant to the parties

joint-sentencing recommendation.5 (Id.).

{¶5} On March 30, 2020, Rodriguez filed a notice of appeal raising two

assignments of error for our review, which we will address separately and out of

order. (Doc. No. 32).

Assignment of Error II

The Trial Court failed to consider Appellant’s ability to pay the financial sanction imposed, thus the imposition of the financial sanctions was in plain error and must be vacated.

{¶6} In his second assignment of error, Rodriguez argues that the trial court

erred when it failed to engage in an ability-to-pay determination as to the imposition

of his financial sanctions.

{¶7} Before we begin our analysis, we must address a preliminary

jurisdictional issue. After reviewing Rodriguez’s second assignment of error, we

conclude it is ambiguous as whether he is arguing the imposition of mandatory fines

4 Rodriguez was given 8 days’ jail-time credit. (Doc. No. 28). 5 The trial court rendered judgment for the court costs under R.C. 2947.23. (Doc No. 28).

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and court costs and the assessment of court-appointed-counsel fees or solely court-

appointed-counsel fees. Moreover, he lays out a standard of review and presents an

assignment of error directing us to R.C. 2929.18 discussing financial sanctions.

{¶8} “[T]he General Assembly has specifically required [trial] courts to

include financial sanctions, fines, and court costs as part of the defendant’s

sentence.” See State v. Taylor, ___Ohio St.3d___,

, citing

R.C. 2929.18 and R.C. 2947.23; State v. Stapleton, 3d Dist. Allen No. 1-19-99,

, citing R.C. 2929.18(A) (noting that “the statute specifically

differentiates court costs under R.C. 2947.23 from financial sanctions by saying that

financial sanctions may be imposed ‘in addition to’ court costs”). Conversely, in

Taylor, the Supreme Court of Ohio held that “there is no statutory authority allowing

a trial court to ‘sentence’ a defendant to pay court-appointed-counsel fees, [and that]

such an order cannot be included as part of the defendant’s sentence.”

We

conclude to the extent that Rodriguez argues that court-appointed-counsel fees are

financial sanctions under R.C. 2929.18 his argument is without merit.

{¶9} Here, and under the terms of the State and Rodriguez’s agreed-upon

sentence detailed in the joint-sentencing recommendation, Rodriguez agreed to pay

the mandatory fines unless he was determined to be indigent pursuant to the trial

court’s ability-to-pay determination. (Doc. No. 23). The trial court ultimately

determined Rodriguez to be indigent, and waived the $17,500 in mandatory fines

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imposed. (Doc. No. 28); (Feb. 18, 2020, Tr. at 2). Further, Rodriguez agreed to pay

court costs as part of that same recommendation. Thus, any determination as to

financial sanctions (none of which were imposed), his mandatory fines (which were

imposed and waived) and court costs (ordered imposed in the sum of $752.50) are

barred from review by this court under R.C. 2953.08(D)(1) because the State and

Rodriguez had an agreed-upon sentence with a joint-sentencing recommendation

that the trial court implicitly adopted (without deviation) and that was “authorized

by law”. See State v. Underwood,

,

, citing

R.C. 2953.08(D)(1); State v. Sergent,

,

.

(See also Doc. Nos. 23, 24, 26, 27, 28). Accordingly, we conclude that we are

precluded from reviewing any of the foregoing issues under R.C. 2953.08(D)(1).

{¶10} Lastly, we turn to Rodriguez’s argument that the trial court erred by

failing to engage in an ability-to-pay determination as to his court-appointed-

counsel fees. Notwithstanding his argument, the record reveals that all times

relevant to the proceedings, Rodriguez was represented by privately-retained

counsel.6 (See Doc. Nos. 1, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,

23, 24, 25, 26, 27, 28, 29, 30). Consequently, there are no court-appointed-counsel

fees owed herein. After our review of the record, it appears that the trial court made

a superfluous order for Rodriguez to pay court-appointed-counsel fees. (See Doc.

6 We note that the case file contains no appointment notice, no financial disclosure form (ODP-206R); and no motion, entry, and certification for appointed counsel fees.

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No. 28). Nevertheless, we cannot say that the trial court erred by failing to

determine that Rodriguez had the ability to pay his court-appointed-counsel fees

when he had no court-appointed counsel in the first instance. Error here if any is

harmless. See Civ.R. 61; R.C. 2309.59. See also Crim.R. 52(A).

{¶11} The Supreme Court of Ohio recently held in its Taylor decision that

R.C. 2941.51 plainly states that court-appointed-counsel fees shall not be assessed

as “cost” and are not “reimbursements” within the meaning of R.C. 2929.18. See

Taylor, ___Ohio St.3d___,

; State v. Maston, 2d Dist.

Montgomery No. 28956,

, citing Taylor at ¶ 38. Therefore,

even though we concluded that there are no court-appointed-counsel fees owed

herein and that the trial court’s order is superfluous, the inclusion of that statement

in the financial-obligations and recoupment section of the judgment entry of

sentence is, nonetheless, errant. See Taylor at ¶ 38; Maston at ¶ 29.

{¶12} Accordingly, we overrule Rodriguez’s second assignment of error to

the extent he argues the trial court failed to engage in an ability-to-pay determination

as to court-appointed-counsel fees and vacate the portion of the trial court’s

sentencing entry imposing court-appointed-counsel fees upon Rodriguez,

specifically excising the words “, Court appointed counsel costs” from the trial

court’s sentencing entry. See Taylor at ¶ 39; Maston at ¶ 29.

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Assignment of Error I

Reagan Tokes is unconstitutional as it vests sentencing power in the Executive Branch and fails to afford Appellant access to an attorney at any disciplinary hearing while he is ODRC’s custody.

{¶13} In his first assignment of error, Rodriguez asserts that the trial court

erred in sentencing him under the Reagan Tokes Law because it violates the

constitutional requirement of separation of powers and his right to procedural due

process of law, thus, rendering his sentence contrary to law.

Standard of Review

{¶14} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum,

,

. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford,

(1954), paragraph three of the

syllabus.

Analysis

{¶15} Rodriguez’s raises the identical constitutional-facial challenges as to

his separation-of-powers and procedural-due-process arguments, which we

previously addressed in State v. Hacker, and now Rodriguez asks us to reverse

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course. State v. Hacker, 3d Dist. Logan No. 8-20-01,

. In

State v. Crawford, we recently declined to revisit our precedent in Hacker. State v.

Crawford, 3d Dist. Henry No. 7-20-05,

. Moreover, in

Crawford, we concluded that Crawford’s constitutional-as-applied challenge on

procedural-due-process grounds was not yet ripe. Id. at ¶ 11-13. To the extent that

Rodriguez argues that we should revisit the facial challenges under Hacker and the

as-applied challenges under Crawford, we conclude his arguments are without

merit. See id. at ¶ 10-13; Hacker at ¶ 22.

{¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed in Part and Vacated in Part

SHAW, J., concurs.

/jlr

MILLER, J., concurring separately.

{¶17} In his second assignment of error, Rodriguez complains the trial court

erred by imposing financial sanctions without first ascertaining his ability-to-pay. I

find no merit in this claim, but do not see the need to vacate this portion of the trial

court’s sentencing order. For this reason, I write separately.

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{¶18} In his second assignment of error, Rodriguez asserts the trial court

committed plain error when it imposed financial sanctions without inquiring as to

his present and future ability to pay. In support of his argument, Rodriguez quotes

the trial court’s statement at sentencing: “[Appellant is] ordered to pay all costs of

prosecution, court-appointed counsel costs and fees permitted under 2929.18(A)(4),

all fees allowed under Revised Code Section 2947.23, and judgment is rendered

against him for such costs pursuant to Revised Code Section 2947.23.” (Feb. 18,

2020 Tr. at 16-17.) This finding was also incorporated into the trial court’s

judgment entry of sentence filed on February, 19, 2020. What specific financial

sanctions Rodriguez finds to be offensive is unclear from his argument. Rather, he

treats them collectively with the general complaint that the trial court did not

ascertain his present or future ability to pay financial sanctions as required by R.C.

2929.19(B)(5). The State infers this argument only applies to the trial court

imposing attorney fees with its total response to the assignment of error as follows:

“[Rodriguez] should be entitled to a hearing on whether he should be required to

pay his attorney fees. Since the record is without evidence that the trial court

considered whether [Rodriguez] has the present or future ability to pay said fees,

this case should be remanded to the trial court for such a determination.”

{¶19} In reality, there were no financial sanctions imposed as part of the

sentence. Nor were there court-appointed-counsel fees to be collected because,

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contrary to the arguments presented on appeal, Rodriguez was represented by

retained counsel throughout the trial court proceedings. There were no general fines

imposed as punishment and the mandatory fines required by R.C. 2929.18(B)(1)

were waived upon Rodriguez filing an appropriate affidavit of indigency. The only

financial expenses Rodriguez was required to pay were the court costs. See R.C.

2947.23 (requiring the judge to include the costs of prosecution in the sentence

imposed in a criminal case). Rodriguez filed a motion to pay only $5.00 per month

towards this expense. (Jan. 27, 2020 Tr. at 3) The State did not object to this request

and the court granted the motion in an entry filed on February 19, 2020. In granting

this motion the trial court indirectly conducted an ability to pay analysis.

{¶20} Recently, the Supreme Court of Ohio decided State v. Taylor, ____

Ohio St.3d ____,

holding that “a trial court in a criminal case may

assess court-appointed-counsel fees against a defendant without making specific

findings on the record to justify the fee assessment.” Id. at ¶ 2. The Court further

held “that an order for payment of court-appointed-counsel fees cannot be included

as a part of the defendant’s sentence for a criminal conviction.” Id. While such fees

may be ordered at the time of sentencing and may be listed in the sentencing entry,

they are a civil matter and may not be imposed as part of the sentence. Id. To avoid

any confusion in this regard, the Court indicated the best practice would be for trial

courts to identify and assess court-appointed-counsel fees in an entirely separate

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journal entry. Id. Because the trial court in Taylor clearly incorporated its

assessment of court-appointed-attorney fees in the “Financial Obligations” section

of the sentencing entry as well as the “Reimbursements Payable” section, the Court

found imposition of these fees to have been erroneously imposed as part of the

sentence. Therefore, the Court vacated this portion of the sentence ordering the

defendant to pay court-appointed-counsel fees. Id. at ¶ 6 and ¶ 38.

{¶21} In the instant case the parties jointly recommended the sentence to be

imposed which included the prison terms; the payment of mandatory fines, unless

waived by the trial court, and the payment of court costs. The trial court expressly

indicated to Rodriguez it would adopt the sentence recommendation. (Feb. 18, 2020

Tr. at 6.)

{¶22} The majority opinion correctly finds this joint-sentencing

recommendation, adopted by the trial court, precludes our review of the sentence

imposed, including the court costs which the trial court is statutorily required to

impose. The majority then finds the trial court’s statement that Rodriguez was

required to pay “court-appointed-counsel costs” to be erroneous. However, because

Rodriguez was represented by retained counsel, meaning there were no court-

appointed-counsel costs, the majority finds this to be harmless error. Nevertheless,

the majority proceeds to vacate that part of the sentencing order and excises the

harmless, superfluous language from the trial court’s sentencing order.

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{¶23} In Taylor, the Court found the trial court’s ordering the defendant to

pay court-appointed-counsel cost to be a part of the sentence. For this reason, the

Court vacated the portion of the sentencing entry imposing the court-appointed-

counsel fees. In contrast, because there were no court-appointed-counsel fees in the

instant case, the defendant could not be made to pay them as part of his sentence.

This statement was simply part of the rote verbiage trial courts sometimes include

as part of a sentencing hearing.7 I do not find the logic in vacating something that

is not part of the sentence and which we find to be harmless and superfluous. I am

of the opinion this would not be a good precedent to establish.

{¶24} I concur with my colleagues’ disposition of the first assignment of

error.

7 In consideration of the guidance provided by the Supreme Court of Ohio in Taylor, trial courts would be well advised to refrain from such routine statements in the future. -13-