STATE OF OHIO v. JESSICA N. EBLIN
Case No. CT2019-0036
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 25, 2020
[Cite as State v. Eblin, 2020-Ohio-1216.]
Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0738. JUDGMENT: Affirmed.
For Plaintiff-Appellee
D. MICHAEL HADDOX
Prosecuting Attorney
Muskingum County, Ohio
By: TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43701
For Defendant-Appellant
JAMES A. ANZELMO
Anzelmo Law
446 Howland Drive
Gahanna, Ohio 43230
{¶1} Jessica Eblin entered a no contest plea to one count of obstructing justice, a violation of
STATEMENT OF FACTS AND CASE
{¶2} The facts underlying the charges filed against appellant are irrelevant to the resolution of this appeal and are therefore omitted.
{¶3} Appellant was charged with one count of acting with purpose to hinder the discovery, apprehension, prosecution, conviction or punishment of another in violation of
{¶4} Appellant was found guilty and sentencing was scheduled for a later date. Appellant then retained new counsel and her appointed counsel withdrew. Appellant‘s retained counsel appeared with her at the sentencing hearing.
{¶5} Appellant was sentenced to a stated prison term of 18 months to run concurrently with the sentence imposed in a related case. (State v. Eblin, Muskingum County Court of Common Pleas, Case No. CR2019-0012). The court also ordered that
{¶6} Appellant filed a timely appeal and submits one assignment of error:
{¶7} “I. EBLIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE ONE OF THE OHIO CONSTITUTION.”
ANALYSIS
{¶8} Appellant encourages this court to adopt the rationale used by the Eighth District Court of Appeals in State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861, ¶46 where the trial court concluded counsel was ineffective for failing to ask the trial court waive court costs, the defendant previously having been found indigent. Appellant acknowledges that this court reached a contrary conclusion in State v. Davis, 5th Dist. Licking No. 17-CA-55, 2017-Ohio-9445, rev‘d and remanded, 2020-Ohio-309 concluding that the appellant therein did not receive ineffective assistance of counsel because defendants have the opportunity to request waiver of costs at any time and failure to do so at trial is no longer res judicata. (
{¶10} 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.” State v. Davis, 2020-Ohio-309 ¶1.
{¶11} 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 *142 counsel‘s ineffectiveness.”
Id, at p.141–142, (Internal citations omitted.)
{¶13} A waiver of court costs is within the discretion of the trial court.
ESSENTIAL DUTIES
{¶14} We first review the record to determine whether trial counsel failed in his essential duties to appellant by failing to request a waiver of court costs under
{¶15} 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.
{¶17} We hold that trial counsel does not violate an essential duty to appellant by not filing a motion to waive costs at the sentencing hearing and that, therefore, she did not receive ineffective assistance of counsel in this case.
REASONABLE PROBABILITY
{¶19} Appellant relies on the trial court‘s findings that she was indigent for appointment of trial and appellant counsel to support her argument that there was a reasonable probability that the trial court would have waived costs. That argument has been rejected in State v. Davis, supra and is not an accurate description of the record.
{¶20} The trial court did find appellant indigent and appoint counsel initially, but she retained counsel and discharged her appointed counsel prior to sentencing. (Notice of Substitution and Withdrawal of Counsel, March 8, 2019, Docket #31). Appellant‘s reliance on Springer, supra, even if it remained valid precedent, would be undermined by the fact that she retained counsel for her defense prior to sentencing. 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.
{¶21} Appellant has not presented any further facts or circumstances to support a finding that there was a reasonable probability that trial court would have granted the request to waive costs. We have reviewed the record before us and found nothing that
{¶22} Appellant‘s assignment of error is overruled and the decision of the Muskingum County Court of Common Pleas is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.