Possible right to counsel

Failure to pay costs – Incarceration prohibited

Incarceration for the nonpayment of fines, which are considered a criminal sanction, is permitted, but court costs have been interpreted as civil in nature.  And the Ohio Constitution prohibits incarcerating an individual for the nonpayment of court costs.  Ohio Const., article I, § 15 (“No person shall be imprisoned for debt in any civil action . . . .”); see also Disciplinary Counsel v. Hoover, Slip Opinion No. 2024-Ohio-4608, at ¶ 8-9.

Failure to pay fines – Possible right to counsel

Ohio Rev. Code Ann. § 2947.14(D) states, “No person shall be ordered to be committed to a jail or workhouse or otherwise be held in custody in satisfaction of a fine imposed as the whole or a part of a sentence except as provided in this section.” (emphasis added).

Paragraph (A) of the section requires the court to conduct an ability to pay hearing at the time of sentencing for which “the offender has the right to be represented by counsel”. Ohio Rev. Code Ann. § 2947.14(B).  Language like “the right to be represented by counsel” does not ordinarily create the right to appointed counsel, but it might do so given the fact that sentencing has been interpreted to be a “critical stage” of a criminal matter such that counsel is required as per Mempa v. Rhay, 389 U.S. 128 (1967) (right to counsel extends to deferred sentencing matters where sentencing was deferred subject to probation) (relying on cases such as Townsend v. Burke, 334 U. S. 736 [1948], about which the Mempa decision states, “[Townsend] might well be considered to support by itself a holding that the right to counsel applies at sentencing.).  However, the provision appears to apply at an ability to pay determination made at sentencing and not at a hearing held post-default, such as the “change in circumstance” hearing described below.

If at sentencing, the individual is found able to pay but later defaults on the payment, “a warrant may be issued for the arrest of the offender.” Ohio Rev. Code Ann. § 2947.14(C).  The person is “entitled to a hearing on the first regularly scheduled court day following the date of arrest in order to inform the court or magistrate of any change of circumstances that has occurred since the time of sentencing and that affects the offender’s ability to pay the fine.” Id.  At the change of circumstances hearing, the statute speaks only about the person’s right to testify and present evidence; there is no mention of the right to counsel.  However, because the statute permits incarceration for up to six months, Id. at (E), it is possible that the Ohio public defense code may provide for the appointment of counsel, as Ohio Rev. Code Ann. § 120.16(A)(1) states, “The county public defender shall provide legal representation to indigent adults and juveniles who are charged with the commission of an offense or act that is a violation of a state statute and for which the penalty or any possible adjudication includes the potential loss of liberty.” (emphasis added).  The ambiguity about whether section 120.16(A)(1) applies to change of circumstances hearings stems from the fact that a) the PD code does not define the term “offense”, which is typically meant to refer to criminal cases; and b) even if it applies to non-criminal cases, the nonpayment of a fine may be considered a violation of the individual’s sentence as opposed to “an offense or act that is a violation of a state statute”.

Due to the ambiguity, we have classified the right to counsel as “qualified.”