STATE OF OHIO, Plaintiff - Appellee -vs- BENJAMIN A. DAVIS, Defendant - Appellant
Case No. 2017 CA 00055
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 6, 2020
2020-Ohio-1353
Hon. Patricia A. Delaney, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 6, 2020
APPEARANCES:
For Plaintiff-Appellee: BILL HAYES, Prosecuting Attorney, By: CLIFFORD J. MURPHY, Assistant Prosecuting Attorney, 20 North Second Street, 4th Floor, Newark, Ohio 43055
For Defendant-Appellant: JAMES A. ANZELMO, Anzelmo Law, 446 Howland Drive, Gahanna, Ohio 43230
{¶1} The Supreme Court of Ohio has remanded this case so this court “may conduct the ineffective-assistance-of-counsel analysis set forth in State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989).” State v. Davis, 2020-Ohio-309, ¶ 1 (Davis II).
STATEMENT OF FACTS AND THE CASE
{¶2} In State v. Davis, 5th Dist. Licking No. 17-CA-55, 2017-Ohio-9445, rev‘d and remanded, 2020-Ohio-309, (Davis I) Benjamin Davis claimed he received ineffective assistance of counsel because his trial counsel did not request a waiver of court costs as permitted by
neither in the affirmative nor in the negative. Instead, we conclude that when trial counsel fails to request that the trial court waive court costs on behalf of a defendant who has previously been found to be 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.
{¶3} The matter was remanded to this court to conduct the ineffective-assistance-of-counsel analysis set forth in Bradley, supra, in accordance with the opinion.
ANALYSIS
{¶4} Davis was convicted of Assault on a Peace Officer,
{¶5} In Davis I appellant argued the rationale used by the Eighth District Court of Appeals in State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861 was applicable. In Springer the trial court concluded counsel was ineffective for failing to ask the trial court to waive court costs, the defendant previously having been found indigent. We declined to adopt the rationale in Springer and concluded that Davis did not receive ineffective assistance of counsel because defendants have the opportunity to request
{¶6} We have reviewed the record in this matter and applied the analysis required by Bradley, and we conclude that appellant has not demonstrated that he satisfies either branch of the analysis required by that case.
{¶7} The Supreme Court of Ohio has directed 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 test in State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989)” and that:“[i]f a court analyzes the prejudice prong, then it must consider the facts and circumstances of the case objectively to determine whether the defendant established the necessary prejudice sufficient to support that claim—i.e., but for counsel‘s deficient performance, there exists a reasonable probability that the result of the proceeding would have been different.” Davis II, at ¶ 1. (Davis II)
{¶8} The court in Bradley, supra instructed that:
When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel‘s essential duties to his client. Next, and analytically separate from the question of whether the defendant‘s Sixth Amendment rights were
*** violated, there must be a determination as to whether the defense was prejudiced by counsel‘s ineffectiveness.” Id., at p.141–142, (Citations omitted.)
{¶9} In Davis II, the Supreme Court of Ohio refined the analysis of alleged prejudicial impact by noting that “[a]n appellate court‘s reliance on the fact that a defendant may move for a waiver of costs at a later time under
{¶10} A waiver of court costs is within the discretion of the trial court.
{¶11} We first review the record to determine whether trial counsel violated his essential duties to Davis by failing to request a waiver of court costs under
{¶12} We are guided by the United States Supreme Court ruling in Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) describing the deference to be used in such an analysis:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra,
350 U.S., at 101, 76 S.Ct., at 164. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
{¶13} The flexibility available to trial counsel after the adoption of
{¶14} We hold that trial counsel did not violate an essential duty to Davis by not filing a motion to waive costs at the sentencing hearing and that, therefore, he did not receive ineffective assistance of counsel in this case.
{¶15} Even if we had concluded that trial counsel‘s failure to file a motion to waive costs was a violation of his duty to Davis, our application of the second branch of the Bradley analysis would lead us to the same conclusion because the record lacks evidence of a reasonable probability of a different outcome.
REASONABLE PROBABILITY
{¶16} Davis relies on the trial court‘s findings that he was indigent for appointment of trial and appellant counsel to support his argument that there was a reasonable probability that the trial court would have waived costs. That argument was rejected in Davis II, supra.
{¶17} The trial court did find appellant indigent and appoint counsel for the trial and appellate components of this case. However, the holding of Davis, supra has made it clear that “[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” and, instead we must determine “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.” Id.at ¶ 15-16.
By: Baldwin, J.
Delaney, P.J. and
John Wise, J. concur.