2023 Ohio 3762
Ohio Ct. App.2023Background
- Appellant Tarra M. Murray pleaded guilty to one count of aggravated possession of methamphetamine (third-degree felony) in February 2023.
- During the Crim.R. 11 plea colloquy the court told Murray: “You have a constitutional right not to testify, but if you wanted to you could,” and Murray stated she understood the rights she was waiving.
- A presentence investigation (PSI) showed indicia of indigency: unemployment, receipt of government assistance, limited education, mental-health and substance-abuse issues, two young children, and an extensive criminal history.
- At sentencing the court imposed 24 months imprisonment and a mandatory $5,000 fine, without any affidavit of indigency filed or express findings on Murray’s ability to pay.
- Murray appealed, raising (1) ineffective assistance of counsel for failing to file an affidavit of indigency prior to sentencing; (2) failure to strictly comply with Crim.R. 11(C)(2)(c) regarding the right not to testify; and (3) that her plea was not knowing, intelligent, and voluntary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not filing an affidavit of indigency before sentencing | Failure to file the affidavit was deficient and, because the PSI showed indigency, there is a reasonable probability the court would not have imposed the mandatory fine | Trial court properly imposed the mandatory fine absent an affidavit; counsel’s omission did not change the sentence | Reversed as to the $5,000 mandatory fine; counsel was ineffective because PSI showed a reasonable probability the court would have found Murray indigent had an affidavit been filed; remanded to allow filing and hold an indigency hearing under R.C. 2929.18(B)(1) and 2929.19(B)(5) |
| Whether the trial court failed to comply with Crim.R. 11(C)(2)(c) by not advising that silence could not be used against the defendant | The court’s phrasing was inadequate because it did not expressly tell Murray that her silence could not be used against her | The court’s advisement that she could not be compelled to testify reasonably conveyed the same protection; exact wording not required | No reversible error; court’s explanation that Murray could not be compelled to testify satisfied Crim.R. 11(C)(2)(c) |
| Whether Murray’s plea was involuntary or unintelligent due to the alleged Crim.R. 11 defect | The omission invalidated the plea; prejudice presumed when constitutional waiver not explained | Murray affirmed understanding and showed no confusion; record supports a knowing, voluntary plea | Plea was knowing, intelligent, and voluntary; assignments related to plea validity are overruled |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard)
- State v. Gipson, 80 Ohio St.3d 626 (trial must not impose mandatory fine if defendant files indigency affidavit and court finds indigency)
- State v. Dangler, 162 Ohio St.3d 1 (explains when Crim.R. 11 noncompliance removes prejudice requirement and framework for review)
- State v. Ballard, 66 Ohio St.2d 473 (plea colloquy need not be a word‑for‑word recitation of Crim.R. 11; rights must be explained in a reasonably intelligible manner)
- State v. Sarkozy, 117 Ohio St.3d 86 (complete failure to advise of a constitutional waiver can presume prejudice)