Opinion
Case No. 18-CA-53
03-06-2019
STATE OF OHIO, Plaintiff - Appellee v. JEFFREY S. BROWN, Defendant - Appellant
APPEARANCES: For Plaintiff-Appellee BILL HAYES Prosecuting Attorney By: CLIFFORD J. MURPHY Assistant Prosecuting Attorney 20 North Second Street, 4th Fl. Newark, Ohio 43055 For Defendant-Appellant JAMES A. ANZELMO Anzelmo Law 446 Howland Drive Gahanna, Ohio 43230
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Hon. Earle E. Wise, J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 18-CR-00015 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee BILL HAYES
Prosecuting Attorney By: CLIFFORD J. MURPHY
Assistant Prosecuting Attorney
20 North Second Street, 4th Fl.
Newark, Ohio 43055 For Defendant-Appellant JAMES A. ANZELMO
Anzelmo Law
446 Howland Drive
Gahanna, Ohio 43230 Baldwin, J.
{¶1} Defendant-appellant Jeffrey Brown appeals his sentence from the Licking County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 1, 2018, the Licking County Grand Jury indicted appellant on one count of aggravated trafficking in drugs (methamphetamine) in violation of R.C. 2925.03(A)(2)(C)(1)(d), a felony of the second degree, one count of possession of drugs (methamphetamine) in violation of R.C. 2925.22(A)(C)(1)(c), a felony of the second degree, and one count of having weapons while under disability in violation of R.C. 2923.23(A)(2), a felony of the third degree. The indictment, which was a superseding indictment, also contained three forfeiture specifications (forfeiture of two firearms and US currency). Appellant, on March 2, 2018, filed a waiver of arraignment and not guilty pleas.
{¶3} Thereafter, on June 15, 2018, appellant withdrew his former not guilty plea and entered a plea of guilty to an amended count of aggravated trafficking in drugs (methamphetamine), a felony of the third degree, and to having weapons while under disability. Appellant also plead guilty to the forfeiture specifications. The parties jointly recommended a prison sentence of three years. The charge of aggravated possession of drugs was dismissed upon the State's motion. As memorialized in a Judgment Entry filed on for having weapons while under disability and to two years on the remaining four years that appellant had remaining on post-release control. The trial court ordered that the sentences run consecutively, for an aggregate prison sentence of seven years. The trial court also ordered the forfeitures of the two guns and the currency.
{¶4} Appellant now appeals, raising the following assignments of error:
{¶5} "I. JEFFERY BROWN DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, AND ARTICLE ONE OF THE OHIO CONSTITUTION."
{¶6} "II. THE TRIAL COURT ERRED BY ISSUING A SENTENCING ENTRY WITH AN ORDER FOR BROWN TO FORFEIT CURRENCY AND FIREARMS, PAY COURT COSTS, IN VIOLATION OF HER (SIC) DUE PROCESS RIGHT UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, AND ARTICLE ONE OF THE OHIO CONSTITUTION."
{¶7} "III. BROWN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
I
{¶8} Appellant, in his first assignment of error, argues that he did not knowingly, intelligently and voluntarily plead guilty and that the trial court erred in accepting his plea.
{¶9} A guilty plea is constitutionally valid only if it is entered knowingly, voluntarily, and intelligently. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. To ensure a no-contest or guilty plea is made knowingly, intelligently, and voluntarily, the trial court must engage the defendant in a colloquy pursuant to Crim. R. 11(C) and inform him of certain constitutional and non-constitutional rights. Id. It is the trial court's duty to ensure a defendant "has a full understanding of what the plea connotes and of its consequence." Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
{¶10} To determine whether a defendant knowingly, intelligently, and voluntarily entered his plea, an appellate court asks whether the trial court, in accepting the plea, "[c]ompli[ed] with the mandates of Crim.R. 11(C) * * *." State v. Ross, 9th Dist. Wayne No. 13CA0015, 2014-Ohio-1675, ¶ 6. That rule requires a trial court to personally address a defendant and to ensure that he or she understands the items listed therein, including his or her charges, the maximum penalty he or she faces, the effect of his or her plea, and the constitutional rights he or she will waive as a result of her plea. See State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 27, quoting Crim.R. 11(C).
Where the record affirmatively discloses that: (1) [the] defendant's guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) counsel's advice was competent in light of the circumstances surrounding the indictment; (4) the plea was made with the understanding of the nature of the charges; and, (5) [the] defendant was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty plea has been voluntarily and intelligently made.
{¶11} State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), syllabus. "[A]n appellate court must look to the totality of the circumstances * * *." State v. Ru Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 21, citingState v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶12} Appellant specifically contends that his plea was not knowing, intelligent and voluntary because he did not understand the consequences of his plea. He argues that the trial court did not indicate how much prison time it could impose for a post-release control sanction and that he did not understand the maximum sentence that he faced or the type of sanction he faced for violating post-release control.
{¶13} At the June 15, 2018 hearing, the trial court advised appellant on the record as follows:
THE COURT: Mr. Brown, in order to do that here today, it's generally - - as you've been able to watch, generally necessary for the Court to ask you some questions and the purpose of the questions is to put on the record and demonstrate the fact that you understand what you're accused of; that you understand what your rights are; that you understand the rights that you give up when you change your plea; to make sure you understand the consequences of giving up those rights in changing your plea; and to make sure you're doing all of those things freely and voluntarily and understandingly.
{¶14} Transcript of June 15, 2018 hearing at 3-4.
{¶15} The trial court advised appellant that he could receive a maximum sentence of six years and three years of post-release control as well as a $20,000.00 fine and suspension of his driver's license. The trial court further advised appellant that he "could have any post-release control time which would remain imposed consecutively with any sentence you receive in this case." Transcript at 16. Appellant indicted that he understood the trial court.
{¶16} Upon our review of the record, we find that the trial court complied with Crim.R. 11 and that appellant was advised of the consequences of his plea.
{¶17} Appellant's first assignment of error is, therefore, overruled.
II
{¶18} Appellant, in his second assignment of error, maintains that the trial court's forfeiture order violated appellant's right to due process. Appellant argues that the trial court ordered appellant to forfeit currency and firearms in its Judgment Entry but not at the sentencing hearing. The trial court, in its June 15, 2018 Judgment Entry, ordered appellant to forfeit two guns and $2,726.00 in cash.
{¶19} At the change of plea hearing, counsel for the State advised the trial court that two guns were located in the trunk of the vehicle that appellant was driving and that $2,726.00 was found on appellant's person "which we believe is proceeds" and that it was asking for the guns to be forfeited. Transcript at 11. Counsel further indicated to the trial court that there were three forfeiture specifications included in the plea form. The trial court never ordered appellant to forfeit the currency and firearms at the sentencing hearing.
{¶20} In State v. Eppinger, 8th Dist. Cuyahoga No. 95685, 2011-Ohio-2404, discretionary appeal not allowed, 130 Ohio St.3d 1419, 2011-Ohio-5605, 956 N.E.2d 310, the appellant claimed that the trial court violated his constitutional right to due process by ordering the forfeiture of money in its journal entry when there was no pronouncement of forfeiture at sentencing.
{¶21} In that case, at the plea hearing, the trial court specifically explained that the counts the appellant pled guilty to contained forfeiture specifications. After the court accepted his guilty plea, the prosecutor reminded the court that forfeiture was part of the plea agreement. The court then asked if the appellant or his counsel wished to address the court, and both indicated they had nothing to say.
{¶22} In Eppinger, the court reasoned that in return for the state's agreement to reduce the charges against him, the appellant agreed not to contest the forfeiture of the property listed in the indictment. When given the opportunity to question the items being forfeited at the plea hearing, the appellant did not object. Therefore, the court found no merit to the appellant's claim.
{¶23} In the case sub judice, appellant was aware of the forfeiture by the notice provided in the indictment and he agreed to it in exchange for his plea to reduced charges. Furthermore, the transcript of the plea hearing reflects that the trial and counsel discussed the three specifications on the record and appellant's counsel indicated that they were included in the plea form. Appellant agreed to the facts set forth by the State. During its recitation of the facts, the State noted that two firearms were found in the trunk of the vehicle that appellant was driving and that $2,726.00 in cash was found on the appellant's person which it believed was "proceeds." Transcript at 11. The State further asked that the guns "be forfeited because they were used to protect the sale." Transcript at 11. Appellant never objected. The trial court also incorporated the forfeiture of the specific items in the journal entry. Under these circumstances, we cannot conclude he was prejudiced by the trial court's inadvertent omission at sentencing of an oral recitation of the forfeiture he had agreed to under a plea agreement. Eppinger, supra and State v. Wellington, 8th Dist. Cuyahoga Nos. 100867, 100869, and 100870, 2014-Ohio-4473.
{¶24} Appellant's second assignment of error is overruled.
III
{¶25} Appellant, in his third assignment of error, argues that he received ineffective assistance of counsel when trial counsel failed to move for the waiver of court costs due to appellant's indigency.
{¶26} As noted by the court in State v. Hanford 8th Dist. Cuyahoga No. 106220, 2018-Ohio-1309 at paragraphs 15-17:
In order to establish a claim of ineffective assistance of counsel, the defendant must show that his trial counsel's performance was deficient in some aspect of his representation and that deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To show prejudice as the claim of ineffective assistance relates to the imposition of costs, the defendant must show that a reasonable probability exists that the trial court would have waived payment of the costs if such motion had been filed. State v. Graves, 8th Dist. Cuyahoga No. 103984, 2016-Ohio-7303, ¶ 13, citing State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762, ¶ 78. A "reasonable probability" is "probability sufficient to undermine confidence in the outcome" of the proceeding. Strickland at 694.
R.C. 2947.23(A)(1) governs the imposition of court costs and provides that "[i]n all criminal cases * * * the judge * * * shall include in the sentence the costs of prosecution * * * and render a judgment
against the defendant for such costs." The statute does not prohibit a court from assessing costs against an indigent defendant; rather, "it requires a court to assess costs against all convicted defendants." State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8; State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 12.
The trial court, however, has the discretion to waive court costs if the defendant makes a motion to waive costs. Brown at ¶ 13, citing State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. And pursuant to R.C. 2947.23(C), as amended by Am.Sub.H.B. 247, effective March 22, 2013, the trial court "retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * *, at the time of sentencing or any time thereafter." Therefore, under R.C. 2947.23(C), a defendant may file a motion to waive costs at any time. State v. Williams, 8th Dist. Cuyahoga No. 105590, 2018-Ohio-845, ¶ 39, citing State v. Beasley, Slip Opinion No. 2018-Ohio-493, ¶ 265. And because a defendant may move the court to waive costs at any time, he or she cannot demonstrate prejudice from trial counsel's failure to request a waiver of court costs at sentencing. State v. Mihalis, 8th Dist. Cuyahoga No. 104308, 2016-Ohio-8056, ¶ 33.
{¶27} Based on the foregoing, we find that appellant cannot demonstrate prejudice from trial counsel's failure to request a waiver of court costs at the time of sentencing.
{¶28} Appellant's third assignment of error is, therefore, overruled.
{¶29} For the foregoing reasons the judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to appellant. By: Baldwin, J. Gwin, P.J. and Wise, Earle, J. concur.