State v. DossState v. Doss
{¶ 1} This is an appeal from a Gallia County Common Pleas Court judgment of conviction and sentence. Shelena Marie Doss, defendant below and appellant herein, pled guilty to drug possession in violation of
FIRST ASSIGNMENT OF ERROR:
“MS. DOSS WAS DEPRIVED OR HER RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT ACCEPTED AN UNKNOWING UNINTELLIGENT, AND INVOLUNTARY PLEA.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT IMPOSED A MANDATORY MINIMUM FINE OF $7,500 FOR MS. DOSS‘S THIRD-DEGREE FELONY CONVICTION IN VIOLATION OF
R.C. 2929.18(A)(3)(c) AND (B)(1).”
THIRD ASSIGNMENT OF ERROR:
“MS. DOSS WAS DEPRIVED OF HER RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION WHEN HER TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 2} On November 22, 2008, the Gallia County Grand Jury returned an indictment that charged appellant with drug possession (Count I) and allowing her property to be used for the commission of a felony drug offense in violation of
{¶ 3} At the change of plea hearing, the trial court endeavored to explain appellant‘s rights and to ensure that her plea was knowing and voluntary. Satisfied that it was, the court accepted appellant‘s plea and found her guilty of Count I. At the August 2, 2009 sentencing hearing, the trial court sentenced appellant to serve five years in prison, to pay a fine and to pay
I
{¶ 4} In her first assignment of error, appellant asserts that she entered her guilty plea unknowingly and involuntarily. In particular, she argues that the trial court failed to inform her of her right to compulsory process of witnesses and the fact that she was subject to the mandatory imposition of court costs.
{¶ 5} Our review of the July 8, 2009 sentencing hearing transcript reveals that the trial court asked appellant if she understood that she would “be giving up the right to have compulsory process or the use of subpoena power to bring folks in here to testify on your behalf.” Appellant answered in the affirmative to the court‘s inquiry. Although the transcript shows that appellant was informed of her right to compulsory process, she argues in her reply brief that she has an “eleventh-grade education” and did not understand what this meant. However, even assuming, arguendo, that appellant did not understand what “compulsory process” or “subpoena” meant, the trial court explained to her that “folks [could be brought] in here to testify on her behalf.” Appellant makes no argument that she did not understand this language and, even if she had, we would have great difficultly accepting her argument. Furthermore, the transcript
{¶ 6} As to appellant‘s assertion that the trial court did not explain at the change of plea hearing that she could be required to pay court costs, or be required to perform community service if she did not pay the costs, this information is to be given at sentencing, not at a change of plea hearing. See
{¶ 7} It is also worth mentioning that a defendant who challenges a guilty plea on the basis it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. State v. Stewart (1977), 51 Ohio St.2d 86, 93, 364 N.E.2d 1163; State v. Puckett, Scioto App. No. 03CA2920, 2005-Ohio-1640, at ¶11; also see
{¶ 8} For these reasons, we find no merit to appellant‘s argument that the trial court failed to comply with
II
{¶ 9} Appellant‘s second assignment of error involves the $7,500 fine that the trial court imposed at sentencing. The gist of her argument is that the fine is incompatible with statute and, thus, is invalid and renders her sentence void. We disagree.
{¶ 10} Appellant pled guilty to a third degree felony violation of
{¶ 11} A trial court speaks through its journal, not oral pronouncement. State v. Baker, Scioto App. No. 09CA3331, 2010-Ohio-5564, at ¶7; State v. Smith, Butler App. No. No. CA2009-02-038, 2010-Ohio-1721, at ¶ 59; State v. Hillman, Franklin App. Nos. 09AP-478, 09AP-479 & 09AP-480, 2010-Ohio-256, at ¶ 15. Here, the trial court did not repeat in its journal its comment about the “mandatory” fine. The August 3, 2009 sentencing entry imposes a $7,500 fine, but the word “mandatory” is omitted. We view the court‘s sentencing hearing statements as momentary confusion about the statute‘s terms. This is particularly true in view of the fact that during the July 8, 2009 change of plea hearing, the trial court correctly informed appellant she faced “a maximum fine of $10,000 . . . with a minimum mandatory thereof being one half thereof or $5,000.”
{¶ 12} Recently, this court considered a similar issue in State v. Weddington, Lawrence No. 10CA19, 2011-Ohio-1017. In that case, the trial court described the fine imposed as mandatory when, in fact, it was not. Id. at ¶25. That description was even carried into the journal entry. Id. A majority of this Court declined to recognize plain error, however, because the fine was within the permissible statutory range and the appellant failed to show that the
{¶ 13} We believe that the case sub judice presents a much stronger argument for disregarding the trial court‘s misstatement, as the term “mandatory” was not included in the judgment entry as it was in Weddington. We also fail to discern how appellant suffered prejudice in light of the fact that the fine the court ultimately imposed is within the court‘s statutory discretion. See
{¶ 14} For these reasons, we hereby overrule appellant‘s second assignment of error.
III
{¶ 15} In her third assignment of error, appellant advances several claims that she received ineffective assistance from trial counsel.
{¶ 16} Criminal defendants have a right to counsel, and this includes a right to the effective assistance from counsel. McCann v. Richardson (1970), 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763; State v. Lytle (Mar. 10, 1997), Ross App. No. 96CA2182; State v. Doles (Sept. 18, 1991), Ross App. No. 1660. To establish constitutionally ineffective assistance of counsel, a defendant must show that (1) counsel‘s performance was deficient, and (2) such deficient performance prejudiced the defense and deprived the defendant of a fair trial. See Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; also see State v. Issa (2001), 93 Ohio St.3d 49, 67, 752 N.E.2d 904; State v. Goff (1998), 82 Ohio St.3d 123, 139, 694 N.E.2d 916. In is important to recognize that both prongs of the Strickland test need not be analyzed if the claim of ineffective assistance can be resolved under one prong. See State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52. To establish the latter element,
{¶ 17} One of appellant‘s ineffective assistance claims is that counsel did not object that “the fine imposed was contrary to law.” Here, our ruling on appellant‘s second assignment of error renders this argument without merit. The $7,500 fine is not contrary to law.
{¶ 18} Appellant also argues that trial counsel should have (1) objected to imposition of a fine because she was “indigent,” (2) filed an indigency affidavit to seek avoidance of the fine, and (3) sought a waiver of court costs from the trial court.
{¶ 19} When considering a claim that trial counsel was ineffective for not filing an indigency affidavit under
{¶ 20} Our review of the record reveals little information regarding appellant‘s future ability to pay the fine and court costs. Nevertheless, the Presentence Investigation Report (PSI) indicates that appellant attended high school to the eleventh grade. Appellant answered “yes” when asked if in “good health” and further responded in the negative when asked about any “physical problems” or whether one had been to a mental health clinician. Appellant represented that she has no income, including no “welfare,” but she also has two children which may make her eligible for such monies in the future.4 By the same token, appellant also stated that she has no expenses, except for a “financial obligation [to] Gallipolis Municipal Court” and that she lives with her stepmother.
{¶ 21} A determination that appellant was indigent requires that the court consider both present and future ability to pay the fine and costs. See, generally, State v. Jacobs, 189 Ohio App.3d 283, 938 N.E.2d 79, 2010-Ohio-4010 at ¶11;
{¶ 22} Accordingly, we hereby overrule appellant‘s third assignment of error.
{¶ 23} Having considered all of the errors assigned and argued, we affirm the trial court‘s
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the appeal be affirmed and that appellee recover of appellant 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 Gallia County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment & Opinion
Kline, J.: Concurs in Judgment Only
For the Court
BY:
Peter B. Abele
Presiding Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.