State of Ohio v. Darnell Gibson
Court of Appeals No. L-14-1162
Trial Court No. CR0201202846
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: August 31, 2015
[Cite as State v. Gibson, 2015-Ohio-3613.]
PIETRYKOWSKI, J.
Juliа R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.
{¶ 1} Defendant-appellant, Darnell Gibson, appeals the June 27, 2014 judgment of the Lucas County Court of Common Pleas which, following pleas of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), sentenced him to a total of 17 years in prison and ordered him to pay various costs.
{¶ 3} On June 27, 2014, appellant was sentenced to consecutive sentences totaling 17 years and ordered to pay thе costs of supervision, confinement, assigned counsel, prosecution, and the costs assessed under
{¶ 4} Appellant raises two assignments of error for our consideration:
- The trial court committed plain error to the prejudice of appellant at sentencing by imposing financial sanctions without proper notification and consideration of appellant‘s ability to pay.
- 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.
{¶ 6}
{¶ 7} Prior to the imposition of costs of assigned counsel and confinement, the trial court must first find that the defendant has or will have the ability to pay. Baughman at ¶ 43. As stated in Baughman, the court is not required to conduct a hearing on a defendant‘s ability to pay; rather, the record must contain some evidence that the court considered the defendant‘s financial ability to pay. Id., citing State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919, ¶ 13.
Defendant found to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs оf supervision, confinement, assigned counsel, and prosecution as authorized by law. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs. This order of reimbursement is a judgment enforceable pursuant to law by the parties in whose favor it is entered. Defendant further ordered to pay the сost assessed pursuant to
R.C. 9.92(C) ,2929.18 and2951.021 . Notification pursuant toR.C. 2947.23 given.
{¶ 9} At the June 23, 2014 sentencing hearing, the trial court further stated: “Defendant is ordered to pay all cost of prosecution. You are further ordered to pay court appointed counsel fees and, any fees permitted pursuant to
{¶ 10} Appellant argues that the trial court erred in imposing these sanctions where he was sentenced to 17 years of incarceration and had mental health issues. Arguing that the costs of confinement and appointed counsel were properly imposed, the state cites multiple cases from this cоurt where we concluded that the record supported the defendant‘s ability to pay. See State v. Flowers, 6th Dist. Lucas No. L-14-1141, 2015-Ohio-908 (defendant 32 at the time of sentencing, had his GED, and was employed
{¶ 11} In the present case, the record reveals that at the time of sentencing appellant was 42 years old and had received his GED while incarcerated. Appellant was married with no dependents and the record reveals no health or medical issues. However, the record showed that appellant receives social security disability benefits likely due to his mental health diagnoses. The record reveals no work history and a lengthy multi-state criminal record.
{¶ 12} Based on the foregoing and unlike the cases cites by the state, we find that the record does not support the imposition of the costs of prosecution and appointed counsel. See State v. Hart, 6th Dist. Lucas No. L-03-1073, 2004-Ohio-5511, ¶ 35 (though evidence in the record of social security benefits for a mental disability, the court failed to question thе defendant concerning the income). Accordingly, we find that appellant‘s first assignment of error is well-taken.
{¶ 13} In his second assignment of error, appellant argues his trial counsel was ineffective for failing to object to the imposition of financial sanctions. In order to demonstrate ineffective assistancе of counsel, appellant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant must show counsel‘s performance fell below an objective standard 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.
{¶ 14} Regarding the imposition of the mandatory costs, we note that those costs have been held to apply even to indigent 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. Id.;
{¶ 15} As to the imposition of discretionary costs, as set forth above, we determined that the recоrd does not support their imposition. However, appellant has not shown that a reasonable probability exists that the court would not have imposеd those costs had counsel objected. Whether to impose such costs is in the court‘s discretion. Accordingly, appellant was not denied the effeсtive assistance of counsel and his second assignment of error is not well-taken.
{¶ 16} On consideration whereof, we find that the judgment of the Lucas County Court of Commоn Pleas is affirmed, in part, and reversed, in part. The matter is
Judgment affirmed, in part, and reversed, in part.
A certified cоpy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Stephen A. Yarbrough, P.J. CONCUR.
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.