State v. HubbardState v. Hubbard
PLAINTIFF-APPELLEE
vs.
MYLAN J. HUBBARD
DEFENDANT-APPELLANT
JUDGMENT: SENTENCE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555914
BEFORE: McCormack, J., Keough, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: May 16, 2013
Robert L. Tobik
Cuyahoga County Public Defender
By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Erin Stone
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} This case came to be heard upon the accelerated calendar pursuant to
Procedural History
{¶2} Hubbard was indicted on one count of drug trafficking in violation of
{¶3} Thereafter, Hubbard entered into a plea agreement whereby he pleaded guilty to the drug possession charge, and the trafficking charge was dismissed. During the plea hearing, the court explained that there was a mandatory drug fine of $7,500, but it would consider indigency if defense counsel files the proper paperwork at the time of sentencing. The trial court then referred the case for a presentence investigation report. No affidavit of indigency was filed prior to sentencing.
{¶4} On August 13, 2012, the trial court held a sentencing hearing, during which time the court imposed a four-year prison term to be served concurrently with two other
Assignment of Error
Mylan Hubbard was denied effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when his attorney failed to file an indigency affidavit to waive the mandatory fine.
Law and Analysis
Ineffective Assistance of Counsel
{¶5} Hubbard contends that trial counsel rendered ineffective assistance of counsel when he failed to file an indigency affidavit for the purpose of waiving the mandatory drug fine of $7,500. He claims that if counsel had filed the affidavit, there is a reasonable probability that the trial court would have found Hubbard indigent and waived the mandatory fine. Hubbard argues that his sentence, therefore, must be vacated in its entirety and the case be remanded for a new sentence hearing.
{¶6} As the state concedes, and this court finds, to the extent that Hubbard‘s defense counsel failed to file an affidavit of indigency when faced with the imposition of a mandatory drug fine, Hubbard was denied effective assistance of counsel. In order to prevail on the ineffective assistance of counsel claim, a defendant must demonstrate that counsel was deficient in some aspect of his representation and this deficient performance
{¶7}
In addition to any prison term * * * and in addition to any other sanction that is imposed for the offense under this section, the court that sentences an offender who is convicted of or pleads guilty to a violation of division (A) of this section shall do * * * the following * * *:
(1)(a) If the violation is a felony of the first, second, or third degree, the court shall impose upon the offender the mandatory fine specified for the offense under division (B)(1) of section 2929.18 of the Revised Code unless, as specified in that division, the court determines that the offender is indigent.
{¶8}
* * * If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is
unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.
Therefore, in order for an offender to avoid the imposition of a fine at the time of sentencing, two things must occur: (1) the defendant must submit an affidavit of indigency to the court prior to sentencing; and (2) the court must make a determination that the offender is, in fact, indigent.
{¶9} Ohio courts have held that the failure to file an affidavit of indigency for purposes of waiving a mandatory fine constitutes ineffective assistance of counsel where the record shows a reasonable probability that the trial court would have found the defendant indigent and unable to pay the fine had the affidavit been filed. Gilmer at ¶ 5; State v. Huffman, 8th Dist. No. 63938, 1995 Ohio App. LEXIS 233, *13 (Jan. 26, 1995), citing State v. Powell, 78 Ohio App.3d 784, 605 N.E.2d 1337 (3d Dist.1992); State v. Parsley, 10th Dist. No. 09AP-612, 2010-Ohio-1689.
{¶10} In this case, there is a reasonable probability that the trial court would have found Hubbard to be indigent and unable to pay the mandatory drug fine of $7,500. The record reveals the following: Hubbard has an extensive criminal history, beginning as a juvenile through the present time; he has been in and out of jail throughout the years; he has failed to financially support his children; and the presentence investigation report does not indicate evidence of employment. Moreover, at his arraignment, the court, in fact, found Hubbard to be indigent and it appointed counsel.
{¶12} Accordingly, to the extent Hubbard‘s trial counsel failed to file an affidavit of indigency when Hubbard was faced with the imposition of the mandatory drug fine of $7,500, we find that Hubbard was denied effective assistance of counsel.
Sentencing
{¶13} Hubbard contends that his entire sentence should be vacated in its entirety and the case be remanded for a new sentencing hearing. We disagree.
{¶14} In certifying a conflict among the districts, the Ohio Supreme Court recently considered whether a trial court‘s failure to impose the statutorily mandated fine required by
A motion to correct an illegal sentence presupposes a valid conviction and may not, therefore, be used to challenge alleged errors in proceedings that occur prior to the imposition of sentence. Edwards v. State (1996), 112 Nev. 704, 708, 918 P.2d 321, quoting Allen v. United States (D.C.1985), 495 A.2d 1145, 1149. It is, however, an appropriate vehicle for raising the claim that a sentence is facially illegal at any time. Id. The scope of relief based on a rule * * * is likewise constrained to the narrow function of correcting only the illegal sentence. Id. at ¶ 25.
Moore at ¶ 15, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 25-26.
{¶16} The court further applied this analysis to a trial court‘s failure to properly impose a mandatory driver‘s license suspension. In determining that a mandatory driver‘s license suspension was analogous to postrelease control, the court concluded that because a suspension is a statutorily mandated term, the sentence is void, in part, when the trial court does not include that term in sentencing. State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 16, citing Fischer. Resentencing, therefore, is limited to the imposition of the mandatory driver‘s license suspension. Id. at ¶ 18.
{¶18} Similarly, in this case, we find that only that portion of the sentence pertaining to the mandatory drug fine is void. The ineffective assistance of counsel claim pertains only to the failure to file an affidavit of indigency for purposes of waiving the mandatory fine. There is no argument or evidence that this claim impacted any other aspect of Hubbard‘s sentence. Because we determined that Hubbard was denied effective assistance of counsel when trial counsel failed to file an affidavit of indigency in facing the imposition of the mandatory drug fine of $7,500, we find that only that part of the sentence imposing the fine is void and must be set aside.
{¶19} Accordingly, Hubbard‘s assignment of error is sustained. We remand for resentencing, in part, consistent with
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR