STATE OF OHIO, Plaintiff-Appellee, - vs - DALE FIELD, Defendant-Appellant.
CASE NO. 2012-G-3082
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
2013-Ohio-2257
[Cite as State v. Field, 2013-Ohio-2257.]
THOMAS R. WRIGHT, J.
Judgment: Affirmed in part; reversed in part and remanded.
Jeffrey J. Holland, Holland & Muirden, 1343 Sharon-Copley Road, P.O. Box 345, Sharon Center, OH 44274 (For Appellee).
Dale Field, pro se, PID: A6000847, North Central Correctional Institution, P.O. Box 1812, Marion, OH 43302 (Appellant).
O P I N I O N
THOMAS R. WRIGHT, J.
{¶1} This appeal is from a final judgment in a criminal case before the Chardon Municipal Court. Appellant, Dale Field, was convicted of two charges of cruelty to animals and sentenced to five years of probation. In seeking reversal, appellant essentially challenges the validity of his guilty plea and the legality of certain aspects of his sentence.
{¶2} In January 2011, four criminal complaints were filed against appellant by an attorney with the Geauga County Humane Society. Under each complaint, appellant
{¶3} After initially entering a not guilty plea, appellant was found to be indigent, and the trial court appointed the Geauga County Public Defender to represent him. The original trial date was set for May 31, 2011, but the matter was continued in part because appellant had just begun to serve a three-year prison term stemming from a separate criminal case. Over the next nine months, no further proceedings were held in the “cruelty” action. However, in March 2012, appellant sent a notice to the trial court indicating that he was prepared to go forward.
{¶4} A pretrial conference was conducted in May 2012, during which appellant was represented by his appointed counsel. During that proceeding, appellant agreed to enter a guilty plea to two of the four pending complaints. In response, the state agreed to dismiss the other two charges. The two parties also agreed to make a joint recommendation to the trial court that appellant be placed on probation for a period of five years.
{¶5} On the same day as the pretrial conference, the trial court held a hearing on the change of plea. As part of the hearing, the trial court expressly discussed with appellant the legal effect of his plea and the nature of the rights he was waiving by not going to trial. At the end of this colloquy, appellant reaffirmed his desire to plead guilty to the two charges, and the court accepted the guilty plea. Moreover, following a brief discussion of the joint sentencing recommendation, the trial court also adopted it.
{¶6} In its final judgment, the trial court sentenced appellant to 90 days in jail, but suspended the entire term and placed him on probation for five full years. The court also did not impose a fine, but imposed general court costs. As the primary condition of the probation, appellant was forbidden from either owning or possessing an animal, except for bees.
{¶7} Appellant raised five assignments for review:
{¶8} “[1.] Defendant‘s plea was not knowingly, voluntarily, and intelligently given.
{¶9} “[2.] The charges of the defendant were against the manifest weight of the evidence.
{¶10} “[3.] The trial court abused its discretion in imposing costs upon the defendant without considering indigent status.
{¶11} “[4.] Defendant‘s counsel rendered ineffective assistance in failing to request waiver of costs.
{¶12} “[5.] The trial court abused its discretion in imposing the maximum of five years probation using the factor of his current incarceration.”
{¶13} Under his first assignment, appellant contends that he should be allowed to retract his guilty plea because the plea was deficient in two respects. First, he states that his plea was made unknowingly because he did not understand the basic elements of the offense of cruelty to animals under
{¶14} Pursuant to
{¶15}
“In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, or shall not accept such plea without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty.”
{¶17} “In State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, * * *, the Supreme Court of Ohio was asked to ‘clarify the trial judge‘s duties under
{¶18} In the context of a plea of guilty, a trial court is in compliance with
{¶19} Appellant correctly notes that the trial court did not address the elements of charged offenses. However, unlike a plea on a felony offense under
{¶20} As to appellant‘s separate contention that his guilty plea was coerced by his trial counsel, this court would emphasize that none of counsel‘s alleged statements are contained in the trial record. Since the substance of counsel‘s statements cannot be reviewed when they were made “outside” the record, appellant‘s “coercion” argument cannot be addressed in the direct appeal of his conviction. See States v. Adames, 6th Dist. No. L-98-1230, 1999 Ohio App. LEXIS 1375, *2 (Mar. 31, 1999).
{¶21} Given that appellant has failed to demonstrate that his guilty plea was not made in compliance with
{¶22} Under his next assignment, appellant argues that his conviction on the two charges of cruelty must be reversed as against the manifest weight of the evidence. He submits that the state would not have been able to prove that he was responsible for the
{¶23} Appellant‘s conviction was based upon a guilty plea and, therefore, no trial was ever held in the underlying case. In other words, since appellant admitted his guilt, the state was not required to prove the elements of the crimes through the submission of evidence. Under such circumstances, a challenge to the manifest weight of the evidence is inappropriate. The second assignment of error is also without merit.
{¶24} Under his third assignment, appellant maintains that the trial court abused its discretion in ordering him to pay court costs as part of his sentence. He asserts that, because the court previously ruled that he was indigent, it should have waived the statutory requirement that he pay court costs.
{¶25} The trial court proceeded to impose appellant‘s sentence as part of the same oral hearing in which the guilty plea was accepted. The transcript of that hearing readily shows that appellant‘s trial counsel never moved the trial court to waive the payment of court costs on the grounds that his client was indigent. Under most circumstances, the failure to orally move for the waiver of court costs at the time of sentencing constitutes a waiver of the issue itself. See State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, ¶5
{¶26} However, trial counsel never had a legitimate opportunity to raise the issue of the waiver of court costs because the trial court never stated during the hearing that appellant would be ordered to pay court costs.
{¶27} In relation to the imposition of court costs,
{¶28} “In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, and render a judgment against the defendant for such costs. At the time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
{¶29} “(a) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved payment schedule.
{¶30} “(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.”
{¶31} The first sentence of the foregoing requires trial courts to impose court costs even if there has been a prior finding of indigency. Clevenger, 2007-Ohio-4006, at ¶3. However, once the mandated order is made,
{¶32} As to the necessary procedure for sentencing,
{¶33} In addition,
{¶34} The trial court did not comply with either
{¶35} In the absence of any express reference to the payment of court costs during the oral hearing, appellant‘s trial counsel was not afforded a true opportunity to raise the waiver issue in accordance with
{¶36} To the extent that the trial court did not use the correct procedure when it ordered appellant to pay court costs, his third assignment of error is well-taken.
{¶37} In his fourth assignment, appellant contends that he was denied effective assistance of trial counsel because his appointed attorney did not move the trial court to waive the payment of court costs. Given our analysis under the third assignment, this court concludes that the lack of a waiver request was justified in light of the trial court‘s
{¶38} Under his final assignment, appellant argues that the trial court abused its discretion in placing him on probation for a period of five years, the maximum length for a misdemeanor offense. According to appellant, the trial court improperly predicated its decision upon the fact that he was presently serving a three-year sentence stemming from a separate prosecution in which he was found guilty of having sexual conduct with a minor.
{¶39} The transcript of the plea hearing definitively shows that the ruling to place appellant upon probation for five years was based upon a joint recommendation of both parties as part of the underlying plea agreement. The dialogue during the hearing also infers that the length of the probation period was viewed as a trade-off for the fact that appellant would not be required to serve any additional jail time in light of his conviction for cruelty to animals.
{¶40} As a general proposition, a criminal defendant will not be allowed to take advantage of an alleged error in sentencing which occurred as a direct result of a plea negotiation. State v. Baker, 3rd Dist. No. 1-11-49, 2012-Ohio-1890, ¶11. This principle has also been followed in regard to a sentencing recommendation in a misdemeanor case. State v. Stewart, 3rd Dist. No. 16-08-11, 2008-Ohio-5823, ¶13. Thus, appellant is foreclosed from challenging the length of his probation.
{¶41} Alternatively, this court would note that the primary condition of appellant‘s probation was the requirement that he not own or possess any animal, except for bees. If the length of appellant‘s probation were for three years or less, this condition would
{¶42} Based upon foregoing, appellant‘s fifth assignment does not have merit.
{¶43} Appellant‘s third assignment has merit. Accordingly, it is the judgment and order of this court that the judgment of the Chardon Municipal Court is reversed in part, and the case is hereby remanded for further proceedings consistent with this opinion. Specifically, the trial court shall conduct a costs only hearing in full compliance with
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concurs.