Opinion
No. 106220
04-05-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. MICHAEL P. HANFORD DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Ruth R. Fischbein-Cohen 3552 Severn Rd., #613 Cleveland, OH 44118 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Holly Welsh Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-605749-A BEFORE: McCormack, J., E.A. Gallagher, A.J., and S. Gallagher, J.
ATTORNEY FOR APPELLANT
Ruth R. Fischbein-Cohen
3552 Severn Rd., #613
Cleveland, OH 44118
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor By: Holly Welsh
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} Defendant Michael Hanford appeals his conviction for murder following a guilty plea. For the reasons that follow, we affirm and remand.
Procedural History
{¶2} On May 2, 2016, Hanford was charged in a multicount indictment: Count 1 — aggravated murder in violation of R.C. 2903.01(A); Count 2 — murder in violation of R.C. 2903.02(A); Count 3 — murder in violation of R.C. 2903.02(B); Count 4 — felonious assault in violation of R.C. 2903.11(A)(1); Count 5 — felonious assault in violation of R.C. 2903.11(A)(2); Count 6 — carrying a concealed weapon in violation of R.C. 2923.12(A)(2); and Count 7 — tampering with evidence in violation of R.C. 2921.12(A)(1). Each count contained a forfeiture of a weapon (a knife) specification. The incident stems from the stabbing of Hanford's neighbor, James Kilbane, nine times during an argument Hanford was having with his girlfriend.
{¶3} On September 22, 2016, the court found, following a hearing, that Hanford was not competent to stand trial but could be restored to competency if provided with a course of treatment. The court ordered Hanford to Northcoast Behavioral Healthcare for inpatient treatment for competency restoration. In February 2017, Hanford was referred to the mental health and developmental disabilities court for eligibility screening, and his case was transferred to the mental health docket. Forensic psychiatrist, Dr. Megan Testa, opined that Hanford possessed the ability to understand the nature and objective of the court proceedings and had the capacity to assist in his defense.
{¶4} On July 12, 2017, Hanford withdrew his previously entered not guilty plea. He pleaded guilty to the murder charge in Count 2 and agreed to forfeit the weapon. In exchange, the state agreed to nolle the remaining charges. After hearing from the victim's family and defense counsel, the trial court imposed a sentence of life in prison, with the opportunity for parole after 15 years. The court waived any fine but ordered Hanford to pay court costs by working community work service in prison.
{¶5} On September 6, 2017, Hanford filed a pro se motion for leave to file a delayed appeal, which we granted. This court then appointed counsel to represent Hanford on appeal.
{¶6} Hanford now raises four assignments of error for our review:
I. Michael Hanford was not given credit for time served.
II. It was error for trial counsel not to move the court to waive court costs.
III. Michael Hanford's plea of guilty was not made knowingly, thereby rendering the plea as invalid and unconstitutional.
IV. Michael Hanford's bail was excessive; cruel and unusual punishment.
Jail-Time Credit
{¶7} In his first assignment of error, Hanford claims the trial court erred in failing to give him credit for jail time served. The court's sentencing entry states, "Jail credit days to date to be calculated by the sheriff." The state concedes the error and states that Hanford is entitled to 444 days of jail-time credit.
{¶8} Under R.C. 2967.191, a defendant is entitled to jail-time credit for confinement that is related to the offense for which he or she is being sentenced:
The department of rehabilitation and correction shall reduce the stated prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial * * * [and] confinement while awaiting transportation to the place where the prisoner is to serve the prisoner's prison term. * * * The department of rehabilitation and correction also shall reduce the stated prison term of a prisoner * * * by the total number of days, if any, that the prisoner previously served in the custody of the department of rehabilitation and correction arising out of the offense for which the prisoner was convicted and sentenced.Id.; State v. Fair, 136 Ohio App.3d 184, 2000-Ohio-1614, 736 N.E.2d 82 (3d Dist.).
{¶9} "Confinement" is construed as time in which one is not free to come and go as he or she wishes. State v. Napier, 93 Ohio St.3d 646, 648, 758 N.E.2d 1127 (2001). One is "confined" for purposes of the statute when he or she is confined for examination to determine competency to stand trial or treatment at a facility such as Northcoast Behavioral Healthcare System. State v. Lutz, 8th Dist. Cuyahoga No. 105595, 2017-Ohio-4077, ¶ 12.
{¶10} The trial court must determine and document how many days of jail-time credit a defendant is owed. State v. Armstrong, 8th Dist. Cuyahoga No. 105943, 2017-Ohio-8070, ¶ 13, citing State v. Clemons, 8th Dist. Cuyahoga No. 92054, 2009-Ohio-2726, ¶ 6.
{¶11} Here, the record reflects that the trial court failed to determine Hanford's jail-time credit both at the sentencing hearing and in the sentence entry. In the state's brief on appeal, it calculated Hanford's jail-time credit as follows: Cleveland city jail, April 24, 2016 - April 26, 2016, for 2 days; Cuyahoga county jail, April 26, 2016 - August 25, 2016, for 121 days; Northcoast Behavioral Healthcare, August 25, 2016 - February 15, 2017, for 174 days; and Cuyahoga county jail, February 15, 2017 - July 12, 2017, for 147 days. Thus, the state concedes that Hanford is entitled to 444 days of jail-time credit.
{¶12} Upon our review of the record, we find the trial court erred when it failed to credit Hanford's prison sentence with jail time, and we agree with the state's calculations. Hanford is entitled to jail-time credit of 444 days.
{¶13} Hanford's first assignment of error is sustained.
Court Costs
{¶14} In his second assignment of error, Hanford claims that his trial counsel was ineffective for failing to move the trial court to waive court costs. This argument has no merit.
{¶15} 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.
{¶16} 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.
{¶17} 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.
{¶18} Here, the record reflects that trial counsel advised the court that Hanford is indigent before the court imposed court costs, and counsel did not object when the court thereafter imposed costs and ordered Hanford to utilize community work service in prison to pay his costs. Even if counsel's actions were considered deficient in this regard, in light of the foregoing applicable law, Hanford cannot establish prejudice. His ineffective assistance claim therefore fails.
{¶19} Hanford's second assignment of error is overruled.
Guilty Plea
{¶20} In his third assignment of error, Hanford claims that his guilty plea was not knowingly, voluntarily, and intelligently made. In support, he argues that the facts demonstrate "the court did not touch the knowing or willing segment."
{¶21} When a defendant enters a plea in a criminal case, "the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution." State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). To ensure that a defendant enters a plea knowingly, voluntarily, and intelligently, a trial court must engage in an oral dialogue with the defendant in accordance with Crim.R. 11(C). Id. The underlying purpose of Crim.R. 11(C) is to convey certain information to a defendant so that he or she can make a voluntary and intelligent decision regarding whether to plead guilty. State v. Schmick, 8th Dist. Cuyahoga No. 95210, 2011-Ohio-2263, ¶ 5.
{¶22} Crim.R. 11(C)(2) requires that a trial court determine from a colloquy with the defendant whether the defendant understands (1) the nature of the charge and maximum penalty, (2) the effect of the guilty plea, and (3) the constitutional rights waived by a guilty plea. State v. Brown, 8th Dist. Cuyahoga No. 104095, 2017-Ohio-184, ¶ 5, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621. Before accepting the guilty plea, the court must address the defendant personally. Crim.R. 11(C)(2); State v. Evans, 8th Dist. Cuyahoga No. 100151, 2014-Ohio-3584, ¶ 9.
{¶23} The reviewing court conducts a de novo review to determine whether the trial court accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26. Where the issue concerns a nonconstitutional requirement, such as whether the defendant understood the nature of the charges or the maximum penalties for the offenses, we review for substantial compliance. See State v. Jordan, 8th Dist. Cuyahoga No. 103813, 2016-Ohio-5709, ¶ 46, citing Veney at ¶ 14-17. "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving." State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990); State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).
{¶24} After a thorough review of the record, we find that the court fully complied with all aspects of Crim.R. 11 when taking Hanford's guilty plea, and there is no indication from the record of the plea proceedings that Hanford's plea was anything but knowingly, voluntarily, or intelligently made.
{¶25} Here, the record demonstrates that the state advised the court that Hanford agreed to plead to an amended Count 2, murder, and in exchange, the state agreed to dismiss all remaining charges. The state also advised the court that the amended count is an unspecified felony and therefore carries a prison sentence of life with the possibility of parole after 15 years and mandatory five years postrelease control.
{¶26} Thereafter, the court inquired of Hanford's age and level of education, and the following colloquy occurred:
Court: Are you currently under the influence of any drugs, alcohol, or medication?
Defendant: I take drugs from a doctor.
Court: Do they cause you any trouble understanding things?
Defendant: No. I understand better with them. They do help me.
Court: Okay. And do you understand what's going on here today?
Defendant: Yeah. Yes.
Court: All right. Other than the plea offer, any kind of threat or promise made to you to get you to change your plea?
* * *
Defendant: Yeah, I understand my plea, you know, for the crime I've committed, so — but nobody threatened me or anything.
Court: Okay. Are you satisfied with the work performed by [defense counsel] for you?
Defendant: Yeah.
{¶27} The court then advised Hanford of his constitutional rights and explained that by entering the plea, Hanford was "waiving, you're giving up those rights." Hanford answered, "okay" after each advisement. The court then explained the sentence, stating that "[t]he sentence in this case is life imprisonment with the first opportunity to seek parole after 15 years," and he proceeded to explain postrelease control. Hanford replied, "Yes, sir."
{¶28} Defense counsel and the prosecutor agreed that the court complied with Crim.R. 11. The court then found that Hanford understood the nature of the charge, the effect of the plea, and the penalties that could be imposed and found Hanford's plea to be knowingly, intelligently, and voluntarily made. The court accepted Hanford's plea and found him guilty of murder.
{¶29} In light of the above, we find that the trial court complied with Crim.R. 11 in ensuring that Hanford's plea was knowingly, intelligently, and voluntarily entered. Hanford has failed to identify any part of the record that demonstrates any confusion, coercion, or lack of understanding of the proceedings or his plea.
{¶30} Hanford's third assignment of error is overruled.
Excessive Bail
{¶31} In his final assignment of error, Hanford argues that his $1 million bond was in violation of the Eighth Amendment to the United States Constitution's prohibition against "excessive bail." This argument has no merit.
{¶32} The amount of bail set in a criminal proceeding is within the sound discretion of the trial court. State v. Bridges, 8th Dist. Cuyahoga Nos. 102930 and 103090, 2015-Ohio-5428, ¶ 31, citing State v. Cogar, 5th Dist. Holmes No. 05CA009, 2006-Ohio-5218, ¶ 37. After conviction, however, "any error concerning the issue of pretrial bail is moot. * * * The proper procedure for seeking relief for excessive pretrial bail is through habeas corpus proceedings." State v. Towns, 8th Dist. Cuyahoga No. 88059, 2007-Ohio-529, ¶ 20. Hanford may therefore not raise this issue on direct appeal of his conviction.
{¶33} Hanford's final assignment of error is overruled.
{¶34} Judgment affirmed. The case is remanded to the trial court for the limited purpose of issuing a nunc pro tunc journal entry to credit Hanford's prison sentence with 444 days jail-time credit.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for execution of sentence and to issue the nunc pro tunc journal entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
TIM McCORMACK, JUDGE EILEEN A. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR