State of Ohio v. Damien Flowers
Court of Appeals No. L-14-1141
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: March 13, 2015
[Cite as State v. Flowers, 2015-Ohio-908.]
Trial Court No. CR0201401136
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Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
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YARBROUGH, P.J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common Pleas, convicting aрpellant, Damien Flowers, of one count of robbery in violation of
{¶ 2} Appellant was initially indicted on one count of aggravated robbery, with a firearm specification, in violation of
{¶ 3} Ultimately, appellant entered a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the lesser included offense of robbery in violation of
{¶ 4} At the sentencing hearing on May 29, 2014, the trial court ordered appellant to serve 30 months in prison. In addition, the triаl court found that appellant, upon his release, would have the ability to pay the costs of prosecution and fees. The trial court also ordered appellant to pay $173 in restitution. Appellant did not object to the imposition of the financial sanctions.
{¶ 5} In the subsequent judgment entry, the trial court stated, in pertinent part,
Defendant found to have, or reasonably may be expеcted to have, the means to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution as authorized by law. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs and to pay restitution in the amount of $173.00 to Vito’s Pizza. This order of reimbursement and restitution is a judgment enforceable pursuant to law by
the pаrties in whose favor it is entered. Defendant further ordered to pay the cost assessed pursuant to R.C. 9.92(C) ,2929.18 and2951.021 . Notification pursuant toR.C. 2947.23 given.
B. Assignments of Error
{¶ 6} Appellant has timely appealed the judgment of conviction, and now asserts two assignments оf error for our review:
I. The trial court committed plain error to the prejudice of Appellant at sentencing by imposing financial sanctions without consideration of Appellant’s presеnt or future ability to pay.
II. 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 thе State of Ohio.
II. Analysis
A. Imposition of Financial Sanctions
{¶ 7} In his first assignment of error, appellant argues that the trial court committed plain error when it imposed financial sanctions against him. In this case, the financial sanctions can be dividеd into two categories: (1) mandatory sanctions including the costs of prosecution imposed pursuant to
1. Mandatory Financial Sanctions Under R.C. 2947.23 and 9.92(C)
{¶ 8} First, relative to the mandatory costs imposed pursuant to
2. Discretionary Financial Sanctions Under R.C. 2929.18(A)(1), 2929.18(A)(5)(a)(ii), and 2941.51(D)
{¶ 9} The second category of finanсial sanctions imposed by the trial court are the award of restitution and the discretionary costs for confinement and appointed counsel.
{¶ 10}
{¶ 11} Before imposing these sanctions, the trial court “shall consider the offender’s present and future ability to pay the amount of the sanction or fine.”
{¶ 12} Similar to the financial sanctions under
{¶ 13} Here, the trial court аffirmatively stated that it found appellant has, or reasonably may be expected to have, the means to pay all or part of the applicable costs. Appellant argues thаt the trial court erred in its determination given the length of his sentence, and the likely additional time that will be imposed in federal court for violation of his parole. We disagree, and find that the trial court’s determination is supported by clear and convincing evidence of record. At the time of sentencing, appellant was only 32 years old. Further, he has completed his GED, and has been emplоyed up until this arrest. Therefore, we hold that the trial court did not err when it ordered appellant to pay restitution, and imposed the costs of confinement and appointed counsel. Comрare State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919, ¶ 15 (appellant unable to pay where he only made it to his sophomore year in high school, has never been gainfully employed, and will be incarcerated until he is 94 years old) and Jobe at ¶ 82 (appellant unable to pay where he only “completed the eighth grade, did not obtain a GED and has never held a job”) with State v. Willis, 6th Dist. Lucas No. L-11-1274, 2012-Ohio-6070, ¶ 20 (appellant able to pay where he had some college eduсation and a work history) and State v. Donaldson, 6th Dist. Lucas No. L-11-1264, 2012-Ohio-6064, ¶ 31 (appellant able to pay where he had 10th grade education, has held jobs in the past, and is only 41 years old).
B. Ineffective Assistance of Counsel
{¶ 15} Alternatively, appellant argues in his second assignment of error that his trial counsel was ineffective for failing to object to the imposition of financial sanctions. In order to demonstratе ineffective assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel’s performance fell below an objective standаrd of reasonableness, and a reasonable probability exists that, but for counsel’s error, the result of the proceedings would have been different. Id. at 687-688, 694.
{¶ 16} Here, we find that appellant has failed tо satisfy the elements for ineffective assistance of counsel. Relative to the imposition of the mandatory costs, we note that those costs have been held to apply even to indigеnt defendants. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. Nevertheless, a trial court, in its discretion, may waive the mandatory costs. See id.;
{¶ 17} Further, we do not find that trial counsel was ineffective relative to the imposition of the discretionary costs. The trial court determined that appellant was found
{¶ 18} Accordingly, appellant’s second assignment of error is not well-taken.
III. Conclusion
{¶ 19} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuаnt to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Stephen A. Yarbrough, P.J.
JUDGE
CONCUR.
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.