State v. Wertman, 2019 Ohio 4940

Background

David M. Wertman pleaded guilty to one count of Attempted Engaging in a Pattern of Corrupt Activity (4th‑degree felony) and was placed on three years of community control in July 2016.
Multiple community‑control‑violation (CCV) proceedings followed; Wertman admitted various violations and received short jail sanctions previously.
On May 10, 2019, after admitting a CCV, the trial court revoked community control and sentenced Wertman to six months in prison and assessed costs: $30 under R.C. 2949.091, $30 under R.C. 2743.70, and a $25 application fee under R.C. 120.36.
Wertman appealed, raising four assignments: (I) unlawful re‑imposition of the R.C. 2949.091 and R.C. 2743.70 fees; (II) unlawful imposition of the R.C. 120.36 appointed‑counsel application fee in a post‑conviction context; (III) the court should have waived fees because he is indigent; (IV) ineffective assistance for counsel’s failure to seek waiver/object.
The State conceded error as to the two statutory fees (R.C. 2949.091 and R.C. 2743.70); the court addressed each assignment and issued a mixed ruling: vacating the two statutory fees, affirming assessment of the R.C. 120.36 application fee, and sustaining ineffective‑assistance claim insofar as counsel failed to object to the unlawful fees.

Issues

Issue	State's Argument	Wertman's Argument	Held
I. May the trial court assess costs under R.C. 2949.091 and R.C. 2743.70 following a CCV?	Conceded error: those statutes apply when a defendant pleads guilty to an offense and are per case; inapplicable to CCV admission here.	Court already imposed those fees at original sentencing; they cannot be re‑assessed and are per case, not per violation.	Sustained. Assessment under R.C. 2949.091 and R.C. 2743.70 vacated.
II. May the court impose the $25 appointed‑counsel application fee under R.C. 120.36 for a CCV?	R.C. 120.36 explicitly requires assessing the application fee for a charge of violating a community control sanction; fee proper.	Argued CCV is a post‑conviction proceeding so the fee should not apply.	Overruled. Application fee under R.C. 120.36 properly assessed.
III. Did the trial court abuse its discretion by failing to waive fees given Wertman’s indigence?	Any dispute about waiver can be handled post‑judgment under R.C. 2947.23; statutory assessment of R.C. 120.36 does not require an immediate waiver‑finding on the record.	Court should have waived fees at sentencing because the record shows indigence.	Partly moot: fees under R.C. 2949.091 and R.C. 2743.70 vacated; R.C. 120.36 fee stands but may be addressed later under R.C. 2947.23 without remand.
IV. Was counsel ineffective for not seeking waiver/ objecting to the costs?	Generally, failure to object is not automatically ineffective; but counsel may be ineffective where plain error existed and objection should have been made.	Counsel was ineffective for failing to seek waiver and object to unlawful costs.	Sustained as to failure to object to the two unlawful statutory fees; counsel’s omission constituted ineffective assistance on that point.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective‑assistance two‑prong test)
Harrington v. Richter, 562 U.S. 86 (deferential Strickland review; burden to show prejudice)
United States v. Marcus, 560 U.S. 258 (plain‑error correction requires clear or obvious error affecting substantial rights)
United States v. Olano, 507 U.S. 725 (defendant bears burden to show plain error affected substantial rights)
State v. Long, 53 Ohio St.2d 91 (plain‑error standard in Ohio criminal cases)
State v. Barnes, 94 Ohio St.3d 21 (appellate discretion to correct unpreserved errors)
State v. Perry, 101 Ohio St.3d 118 (rules on appellate review and procedural default)
State v. White, 103 Ohio St.3d 580 (court costs assessment and indigency context)
State v. Beasley, 153 Ohio St.3d 497 (trial court retains jurisdiction to waive, suspend, or modify prosecution costs post‑sentencing)