State of Ohio v. Brett Farless
Court of Appeals Nos. L-15-1060, L-15-1061
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
April 15, 2016
2016-Ohio-1571
Trial Court No. CR0201402772, CR0201402689
DECISION AND JUDGMENT
Decided: April 15, 2016
Julia R. Bates, Lucas County Prosecuting Attorney, and Jennifer M. Lambdin, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Golf, for appellant.
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PIETRYKOWSKI, J.
{1} Appellant, Brett Farless, appeals from two February 4, 2015 judgments of the Lucas County Court of Common Pleas in case Nos. CR0201402689 and CR0201402772. In both judgments, appellant was convicted and sentenced following the entry of a guilty plea to two counts of burglary. Appellant was sentenced to 16 years of
FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF APPELLANT BY IMPOSING COURT COSTS AND FINANCIAL SANCTIONS WITHOUT CONSIDERATION OF APPELLANT‘S PRESENT OR FUTURE ABILITY TO PAY.
SECOND ASSIGNMENT OF ERROR: APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §10 OF THE CONSTITUTION OF THE STATE OF OHIO.
{2} Appellant‘s two assignments of error will be addressed together so that each cost or financial sanction may be addressed separately. In his first assignment of error, appellant argues the trial court erred as a matter of law by imposing court costs and financial sanctions without first determining that he had the ability to pay based on a meaningful inquiry or consideration of the fact that he had been sentenced to 16 years of imprisonment.
{3} At the sentencing hearing and in its sentencing judgments, the court found appellant “ha[d], or reasonably could be expected to have, the means to pay all or part of
{4} Our standard of review on this issue is whether the imposition of costs and financial sanctions was contrary to law.
{5} In his second assignment of error, appellant argues his counsel rendered ineffective assistance by failing to object to the imposition of costs and financial sanctions. To establish a claim of ineffective assistance of appointed counsel, the defendant must show that his counsel‘s representation “fell below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and “prejudice arises from counsel‘s performance.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Generally, when the action of counsel amounts to a trial tactic, it cannot later be used in a challenge that the trial counsel rendered ineffective assistance of counsel. Strickland at 689; State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 116.
Some of the costs imposed by the court are mandatory and must be imposed regardless of whether the defendant has the ability to pay the cost.
{6}
{7} If the offender files a motion for waiver of payment of the court costs, the trial court has the discretion to waive payment of court costs.
{8}
{9}
{10} Likewise,
{11} Because of our limited review under
{12} Appellee argues that appellant will be able to work while serving his sentence in prison and up to 25 percent of his income can be used to pay for the costs of confinement and the payment of court-ordered restitution to the victims.
{13} The trial court in this case stated that it had considered the issue and found appellant “ha[d], or reasonably could be expected to have, the means to pay all or part of the applicable costs.”
{14} Upon a review of the evidence, we find there was no evidence before the court that appellant had any present ability to pay the cost of confinement or the cost of appointed counsel. During the sentencing hearing the court noted that appellant had a history, beginning in his teenage years, of alcohol abuse and drug abuse. Appellant indicated a desire to participate in a drug treatment program but his insurance did not cover the cost. He has a history of misdemeanor theft-related offenses of primarily elderly people to finance his addictions. Until the time of his arrest, appellant had been living off family support and part-time jobs for three years. He had been diagnosed with mental health disorders but did not take the prescribed medicine because of the cost. At the time of the current offenses, he was living with friends and at hotels. Appellant was
{15} However, as to his future ability to earn income, there was evidence appellant is a healthy 29-year-old man, although he had problems standing for long periods of time due to having a clubfoot. Furthermore, appellant had been sentenced to 16 years of imprisonment and will return to society as a convicted felon. Appellant also has been ordered to pay restitution to the victims and had other costs assessed at sentencing that cannot or have not been waived.
{16} Although there was little evidence of appellant‘s future earning ability, we find that there was evidence in the record that the court had complied with the applicable statutes and considered appellant‘s future ability to pay the costs of confinement and appointed counsel.
{17} While appellant argues that his counsel should have objected to the trial court‘s finding that appellant had a present or future ability to pay these costs, he has not identified any additional information his counsel could have presented which might have influenced the court‘s determination. Therefore, we find appellant has failed to meet his burden to show that his counsel‘s inaction fell below a reasonable standard.
{18} Appellant‘s first and second assignments of error are not well-taken.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Stephen A. Yarbrough, J.
James D. Jensen, P.J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.