Opinion
CA2023-01-006
07-17-2023
STATE OF OHIO, Appellee, v. MANDY J. CHILDERS aka AMANDA J. CHILDERS, Appellant.
Ryan Agee, for appellant. Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case Nos. CR2021-05-0690 and CR2021-06-0719
Ryan Agee, for appellant.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.
OPINION
PIPER, J.
{¶ 1} On September 26, 2022, Mandy Childers pled guilty to one count of aggravated possession of drugs and was sentenced to 18 months in prison. The trial court declined to impose a fine on Childers but ordered her to pay court costs. Childers' appointed counsel did not object to, or seek a waiver of, court costs. Childers now appeals, raising a single assignment of error for review:
{¶ 2} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER OHIO LAW AND UNDER THE UNITED STATES CONSTITUTION.
{¶ 3} Childers argues her trial counsel was ineffective for not requesting that the trial court waive court costs. "R.C. 2947.23(A)(1)(a) requires a trial court to impose the costs of prosecution against all convicted criminal defendants." State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, ¶ 13. While the statute requires a judge to assess costs against all convicted criminal defendants, "waiver of costs is permitted -but not required- if the defendant is indigent." State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶ 14. R.C. 2947.23(C) permits a trial court "to waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or any time thereafter."
{¶ 4} The supreme court has held that when an indigent defendant makes an ineffective-assistance-of-counsel claim based upon counsel's failure to request a waiver of court costs, a reviewing court must apply the Strickland standard for determining whether a defendant received ineffective assistance of counsel. Davis at ¶ 1. Pursuant to that standard, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness and resulting prejudice, i.e., a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Vore, 12th Dist. Warren Nos. CA2012-06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 14.
{¶ 5} The failure to establish either prong negates the need to consider the other. State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 54. We have previously noted, "[w]here trial counsel has failed to request that the trial court waive court costs on behalf of a defendant who has previously been found indigent, 'a determination of prejudice for purposes of an ineffective-assistance-of-counsel analysis depends upon whether the facts and circumstances presented by the defendant establish that there is a reasonable probability that the trial court would have granted the request to waive costs had one been made.'" State v. Watts, 12th Dist. Warren No. CA2021-04-042, 2021-Ohio-4548, ¶ 7, quoting Davis at ¶ 16.
{¶ 6} In her brief, Childers does not address the deficiency prong of her ineffective-assistance-of-counsel claim. Rather, Childers merely states that her trial counsel did not request a waiver of court costs even though the trial court and her trial counsel discussed the waiver of a mandatory fine. She simply concludes that due to "being indigent, its [sic] very likely the Court would have granted the waiver of costs in this case, and thus [Childers] was prejudiced by this failure to request waiver [sic] of costs."
{¶ 7} Childers' failure to address the deficiency prong is fatal to her ineffective assistance of counsel claim. We do not presume deficient performance. Watts at ¶ 9. As this court has previously indicated, trial counsel may have decided not to seek a waiver or modification of court costs as a matter of strategy. Id. It is well established that strategy, even debatable strategy, is not a basis for finding ineffective assistance of counsel. State v. Gillespie, 12th Dist. Warren No. CA2021-01-004, 2021-Ohio-3650, ¶ 70.
{¶ 8} Furthermore, even if her trial counsel had been deficient, Childers would not prevail on her ineffective-assistance-of-counsel claim as she has failed to demonstrate prejudice. Though Childers was indigent, received appointed counsel, and benefited from the trial court's waiver of a fine, the record lacks evidence demonstrating a reasonable probability that the trial court would have granted a request to waive court costs had such a request been made. As the supreme court noted in Davis, "a determination of indigency alone does not rise to the level of creating a reasonable probability that the trial court would have waived costs had defense counsel moved the court to do so." Davis, 2020-Ohio-309 at ¶ 15. Additionally, the waiver of a fine based on indigency does not by itself create a reasonable probability that the trial court would have granted a motion to waive court costs.
State v. Parks, 2d Dist. Montgomery No. 28827, 2021-Ohio-3946, ¶ 13.
{¶ 9} Aside from the fact that she had appointed counsel and had a fine waived, Childers fails to identify pertinent facts demonstrating a reasonable probability that her request to waive court costs would have been granted. We decline the invitation to speculate or make unsupported assumptions. Accordingly, we find Childers has failed to satisfy the deficiency prong as well as the prejudice prong of her ineffective-assistance-of-counsel claim. There has been no demonstration of error, much less a constitutional violation, in the proceedings. Childers' claim of ineffective assistance of counsel is without merit and her sole assignment of error is overruled.
{¶ 10} Judgment affirmed.
HENDRICKSON, P.J., and BYRNE, J., concur.