STATE OF OHIO v. LECONTE CLIFTON
No. 105220
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 25, 2018
[Cite as State v. Clifton, 2018-Ohio-269.]
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-06-486129-A
BEFORE: Boyle, J., Stewart, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: January 25, 2018
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Amy Venesile
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Leconte Clifton, appeals from a judgment convicting him of aggravated murder with a three-year firearm specification. He raises three assignments of error for our review:
- Defendant‘s plea was not knowingly, intelligently, or voluntarily made because he was given inaccurate information regarding the maximum penalty involved, the court incorrectly advised and imposed a term of postrelease control, and the trial court did not inform him of the maximum penalty because it made no mention of potential fines.
- Appellant‘s sentence is void because it improperly includes a term of postrelease control for an aggravated murder conviction.
- The trial court erred by imposing costs where it found appellant indigent and failed to consider his inability to pay and appellant‘s right to effective assistance of counsel was violated where counsel failed to file an affidavit of indigency and the trial court imposed costs.
{¶2} We find merit in part to Clifton‘s second assignment of error, vacate the postrelease control portion of Clifton‘s sentence, and reverse the case to the trial court to issue a new judgment entry reflecting the fact that Clifton is not subject to postrelease control.
I. Procedural History and Factual Background
{¶3} In September 2007, Clifton entered into a plea with the state where he agreed to plead guilty to an amended indictment of aggravated murder in violation of
{¶4} In December 2016, this court granted Clifton‘s motion for delayed appeal from the September 2007 judgment convicting him of aggravated murder with a three-year firearm specification and sentencing him to 33 years to life in prison. Thus, it is from the September 2007 judgment that Clifton now appeals.
II. Voluntariness of Clifton‘s Plea
{¶5} In his first assignment of error, Clifton claims that his plea was not voluntarily, knowingly, and intelligently entered into for two reasons: (1) the trial court incorrectly informed him that he would be subject to five years of postrelease control rather than parole upon his release from prison, and (2) the trial court failed to inform him of the potential fine of $25,000 for aggravated murder.
{¶6} Under
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶7} Whether the trial court accepted a plea in compliance with
{¶8} The trial court must strictly comply with those provisions of
{¶9} Generally, the “failure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. As the Supreme Court explained in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, however, if the trial court fails to substantially comply with a requirement of
A. Postrelease Control and Parole
{¶10} Clifton was convicted of aggravated murder, which is an unclassified felony that is not subject to postrelease control under
{¶11} During the plea hearing in this case, the trial court incorrectly advised Clifton that he would be subject to five years of mandatory postrelease control if he ever got out of prison. It also advised him of the consequences of violating the conditions of postrelease control. Further, in the sentencing entry, the trial court wrongly stated that Clifton would be subject to five years of mandatory postrelease control. The trial court did not explain the parameters of parole to Clifton — nor did it have to.
{¶12} In Clark, the Ohio Supreme Court explained the following with respect to parole:
Parole is also a form of supervised release, but it is not merely an addition to an individual‘s sentence. When a person is paroled, he or she is released from confinement before the end of his or her sentence and remains in the custody of the state until the sentence expires or the Adult Parole Authority grants final release.
R.C. 2967.02(C) ;2967.13(E) ;2967.15(A) ;2967.16(C)(1) . If a paroled person violates the various conditions associated with the parole, he or she may be required to serve the remainder of the original sentence; that period could be more than nine months.Ohio Adm.Code 5120:1-1-19(C) .Even after a prisoner has met the minimum eligibility requirements, parole is not guaranteed; the Adult Parole Authority “has wide-ranging discretion in parole matters” and may refuse to grant release to an eligible offender. * * * Because parole is not certain to occur, trial courts are not required to explain it as part of the maximum possible penalty in a
Crim.R. 11 colloquy. * * *
{¶13} Clifton asserts that this case is analogous to the facts in Clark because the trial court “extensively mis-advised” him during the plea colloquy when it told him that if he was released from prison, he would be subject to a mandatory period of five years of postrelease control. He claims that under Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 839 N.E.2d 462, this incorrect recitation of the law failed to meet the substantial-compliance standard. He further maintains that he was prejudiced by the trial court‘s misinformation because the trial court failed to inform him about the possibility of parole he may face, as well as what could happen if he violated his parole.
{¶14} We note that the trial court‘s explanation of postrelease control in this case is distinguishable from what occurred in Clark where the trial court explained some “hybrid” version of postrelease control and parole to the defendant. Id. at ¶ 33. The Supreme Court explained in Clark:
[T]he trial judge attempted to give Clark what the judge thought was a more complete understanding of his sentence by explaining the concepts of postrelease control and parole. Using terms that varied in their meaning throughout the proceedings, the trial judge informed Clark that, upon serving 28 years in prison, he would be subject to a hybrid of the two concepts that does not exist under Ohio law. The trial judge‘s comments completely obfuscated the maximum sentence, to the point that it was unclear how the sentence would end and what sanctions Clark would face upon release from prison.
{¶15} The Supreme Court concluded that “[s]uch an incorrect recitation of the law fails to meet the substantial-compliance standard.” Id. at ¶ 39. The Supreme Court held, however, that the trial court “did not simply ignore [its] duties under
{¶16} Although the trial court‘s advisement in this case is distinguishable from the trial court‘s postrelease control parole “hybrid” explanation in Clark, we nonetheless agree with Clifton that the trial court here did not substantially comply with
{¶18} Like Clark, the trial court in this case did not substantially comply with a requirement of
{¶19} After a review of the record, we find that he did not. There is simply nothing in the record to suggest that Clifton would not have entered into his guilty plea had the trial court not erroneously informed him that he was subject to a mandatory
B. Maximum Fine
{¶20} Clifton further argues that the trial court failed to inform him that he could face a maximum potential fine of $25,000 for pleading guilty to aggravated murder. Maximum fines are part of the maximum penalty of an offense. State v. Flagg, 8th Dist. Cuyahoga Nos. 93248 and 93279, 2010-Ohio-4247, ¶ 33.
{¶21} Clifton cites to State v. Johnson, 8th Dist. Cuyahoga No. 91844, 2009-Ohio-2268, in support of his argument that the trial court “did not comply, even substantially, with
{¶22} This court has held, however, that Johnson is distinguishable because in Johnson, the state “conceded the trial court‘s error, so we were constrained to vacate
{¶23} Accordingly, Clifton‘s first assignment of error is overruled.
III. Sentence Contrary to Law
{¶24} In his second assignment of error, Clifton maintains that his sentence is contrary to law because the trial court sentenced him to a mandatory five-year period of postrelease control and failed to advise him of his appellate rights. As we previously stated, we agree in part.
{¶25}
{¶26} Clifton was convicted of aggravated murder, which is an unclassified felony that is not subject to postrelease control under
{¶27} Regarding the trial court‘s failure to advise Clifton of his appellate rights, we find no prejudice because this court granted his motion for delayed appeal. Clifton‘s second assignment of error is overruled in part and sustained in part.
IV. Court Costs
{¶28} In his third assignment of error, Clifton argues that the trial court erred when it imposed costs in the sentencing entry without orally notifying him at the sentencing hearing that it was imposing costs. He further argues that the trial court erred when it failed to consider his ability to pay costs. Finally, he maintains that his counsel was ineffective for failing to file an affidavit of indigency even after directed by the trial court to do so.
{¶29}
{¶30} In its discretion, however, a trial court may waive payment of court costs upon a defendant‘s motion if the defendant is indigent.
{¶31} When reviewing for abuse of discretion, we must remember that ““[t]he term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations.“” State v. Jenkins, 15 Ohio
{¶32} In Threatt, the Ohio Supreme Court held that a motion by an indigent criminal defendant to waive payment of costs must be made at the time of sentencing. Id. at paragraph two of the syllabus. “If the defendant makes such a motion, then the issue is preserved for appeal and will be reviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and costs are res judicata.” Id. at ¶ 23.
{¶33} Four years later, in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the Ohio Supreme Court held that a defendant‘s
{¶34} In this case, the trial court imposed court costs without orally notifying
{¶35} In this case, however, despite the trial court‘s failure to inform Clifton that it was going to impose costs, Clifton‘s defense counsel orally moved the court to waive costs twice during the sentencing hearing. The second time, the court informed Clifton‘s defense counsel that they needed to file an affidavit of indigency first and that it would consider the affidavit when it was filed. The trial court then imposed costs in the sentencing entry, effectively denying Clifton‘s motion to waive costs. See State v. Duncan, 8th Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 4 (motions not ruled on when a trial court enters final judgment are considered denied); State v. Ryerson, 12th Dist. Butler No. CA2003-06-153, 2004-Ohio-3353, ¶ 55 (there is a “general rule that pretrial motions not ruled upon will ordinarily be presumed to have been overruled“).
{¶37} When Clifton‘s defense counsel moved for a waiver of court costs during the sentencing hearing, they argued to the trial court that Clifton was obviously indigent because they had been appointed to represent him. Thus, the trial court was at least on notice that Clifton may be indigent, and it imposed costs anyway. Therefore, the fact that Clifton may be indigent was not a factor the trial court found relevant to imposing the court costs. See State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146 (trial court‘s imposition of court costs in spite of the fact that defendant was indigent was not an abuse of discretion); State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762 (the fact that the court found defendant indigent for purposes of appointing appellate counsel, yet still imposed court costs, shows the court would not have waived court costs even if a motion was filed).
{¶38} A claim of ineffective assistance of trial counsel requires both a showing that trial counsel‘s representation fell below an objective standard of reasonableness, and
{¶39} As this court held in Vanderhorst, “[a] claim of ineffective assistance of counsel in conjunction with the imposition of costs will be rejected on appeal where the defendant makes ‘no demonstration that a “reasonable probability” exists that the lower court would have waived payment of the costs’ if such motion had been filed.” Id. at ¶ 78, quoting State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919. Clifton has not demonstrated a reasonable probability here.
{¶40} Regarding Clifton‘s argument that the trial court failed to consider his ability to pay court costs, we find no merit to it. Clifton will be in prison for a considerable amount of time — at least 33 years.
“[C]osts are taxed against certain litigants for the purpose of lightening the burden on taxpayers financing the court system.“” [Threatt], 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15, quoting Strattman v. Studt, 20 Ohio St.2d 95, 102, 253 N.E.2d 749 (1969). “Although costs in criminal cases are assessed at sentencing and are included in the sentencing entry, costs are not punishment, but are more akin to a civil judgment for money.” Id. Thus, the purpose of
Ohio Adm.Code 5120-5-03 is the collection of a valid judgment to relieve the burden taxpayers would have to pay as a result of the convict‘s criminal actions.
{¶41} Further,
{¶42} If at some point Clifton‘s circumstances change and he no longer has the ability to pay costs — for example, if he becomes disabled such that he cannot work (in prison or after he gets out) — then he can move the court to waive, suspend, or modify payment of costs at that time pursuant to
{¶43} Clifton‘s third assignment of error is overruled.
{¶44} Judgment affirmed in part, reversed in part, and remanded for the trial court to issue a new judgment entry reflecting that Clifton is not subject to postrelease control.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR