State v. Kelly
Karyn Justice, Portsmouth, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis, Assistant Scioto County Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Wilkin, J.
{¶1} This is an appeal of a Scioto County Court of Common Pleas judgment entry in which Daryl E. Kelly (“Kelly“) was convicted of trafficking in a fentanyl-related compound. On appeal Kelly contends he received ineffective assistance of counsel because his counsel did not request a waiver of court costs. Kelly further claims the sentence he received as a result of a negotiated plea was contrary to law. After reviewing the parties’ arguments, the record, and thе applicable law, we find no merit to the assignments of error and affirm the judgment of the trial court.
BACKGROUND
{¶2} On March 23, 2022 a Scioto County grand jury indicted Kelly with ten counts: Count 1, trafficking in a fentanyl-related compound, in violation of
{¶3} On December 22, 2022, at arraignment, Kelly entered a not guilty plea and the trial court appointed counsel to represent him. Then, on February 14, 2023, Kelly retained private counsel.
{¶4} On November 27, 2023, Kelly plead guilty to Count 1, trafficking in a fentanyl-related compound, and the remaining nine counts were dismissed. The trial court subsequently held a sentencing hearing on November 30, 2023. At the hearing, the trial court considered the factors contained in
{¶5} Additionally, the trial court found that Kelly was indigent and therefore waived the mandatory fine attendant with Count 1, and also did not impose a discretionary fine, in light of the prison sentence. However, at sentencing the trial court further indicated: “I am going to order you to pay the costs of prosecution in this matter. I am going to find that he‘s eligible – that he has the present and future ability to pay this financial sanction.” The trial court therefore ordered Kelly to pay the costs of the proceeding and required ODRC to withhold funds in the appropriate amount from Kеlly‘s account to pay the costs.
{¶6} Kelly did not file a notice of appeal from the original judgment until filing a motion for leave to file a delayed appeal on August 29, 2024. His motion for leave to file a delayed appeal was granted on October 7, 2024, and this appeal followed.
ASSIGNMENTS OF ERROR
I. APPELLANT DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL.
II. APPELLANT‘S SENTENCE IS CONTRARY TO LAW.
FIRST ASSIGNMENT OF ERROR
{¶7} In his first assignment of error, Kelly asserts that hе received ineffective assistance of counsel when his counsel did not request that the trial court waive the costs because he was indigent. In so doing, Kelly acknowledges
{¶8} The State responds that Kelly‘s trial counsel not only succeeded in procuring a negotiated plea in which Kelly would plead to one count with the remaining nine counts being dismissed, but also counsel ensured as part of the plea agreement that Kelly would not be required to pay the mandatory fine. Further, the State contends that Kelly merely speculates on appeal that the trial court would have waived the costs had his trial counsel requested the court to waive the court costs, and thus, Kelly has failed to show prejudice according to ineffective counsel jurisprudence. The State asserts that, as a negotiated plea, the plea and sentence is not subject to appellate review.
A. Law
1. Court Costs.
{¶9}
2. Ineffective Assistance of Counsel
{¶10} To prеvail on a claim of ineffective assistance of counsel as it pertains to the waiver of court costs, as in other circumstances, “a criminal defendant must establish (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different. Rister at ¶ 20, quoting State v. Cremeans, 2022-Ohio-4832, ¶ 20 (4th Dist.), citing State v. Wilson, 2019-Ohio-2754, ¶ 25 (4th Dist.). “Failure to satisfy either part of the test is fatal to the claim.” Id. quoting State v. Trout, 2020-Ohio-3940, ¶ 31 (4th Dist.), citing Wilson at ¶ 25.
B. Analysis.
{¶11} The Supreme Court of Ohio has held, “when an indigent defendant makes an ineffective-assistance-of-counsel claim based upon сounsel‘s failure to request a waiver of court costs, a court must objectively consider the facts and circumstances to determine whether the defendant established the necessary prejudice sufficient to support that claim (i.e., but for counsel‘s deficient performance, a reasonable probability exists that the result of the proceeding would have been different).” State v. Lansing, 2025-Ohio-4641, ¶ 12 (4th Dist.), citing State v. Davis, 2020-Ohio-309, ¶ 15. The Supreme Court of Ohio also underscored that “when considering the question of whether counsel was
{¶12} In addition, “a determination of indigency alone does not rise to the level of creating a reasonable probability that the trial court would have waived costs had defense counsel requested the court to do so.” Id. citing Davis at ¶ 15. We have also observed that if a trial court finds that a defendant has the ability to work and pay cоurt costs in the future, the trial court may decide not to waive the costs. State v. Goff, 2023-Ohio-4823, ¶ 41 (4th Dist.). In fact, ”
{¶13} In the instant case, the record shows that the trial court fully considered Kelly‘s indigency, as is shown by the fact the trial court did not impose the mandatory fine. Moreover, the trial court considered the issue of costs and specifically found that Kelly had the present and future ability to рay. Further, while the trial court found Kelly to be indigent, it is clear that he also
{¶14} We find that Kelly has not established his counsel was ineffective. First, we find that Kelly has not demonstrated that his counsel‘s performance was deficient. With the adoption of
{¶15} Second, we find that Kelly has simply not met his burden of establishing prejudice in light of the fact that indigency status alone is not determinative of whether court costs should be paid. See State v. Lansing, 2025-Ohio-4641, ¶14 (4th Dist.). Here, the record demonstrates that the trial court was aware of Kelly‘s financial situation, including that he had the ability to pay costs in the future, which it deemed an important fact in its requiring him to
SECOND ASSIGNMENT OF ERROR
{¶16} In his second assignment of error, although acknowledging that the parties jointly recommended a mandatory definite sentence of six years’ incarceration up to nine years as an indefinite sentence, Kelly now asserts that the imposition of more than the minimum mandatory sentence is contrary to law. Specifically, Kelly cites
{¶17} The State responds that Kelly provided no explanation as to why the trial court should have imposed a sentence less than what had been jointly recommended. In addition, the State asserts that a guilty plea waives all claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea, unless an appellant asserts that his plea was involuntary, and here, Kelly does not assert that his plea was infirm. Finally, the State avers that
A. Law
1. Standard of Review
{¶18} We review Kelly‘s sentence pursuant to the dictates of
[t]he court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the mаtter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of
section 2929.13 , division (B)(2)(e) or (C)(4) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶19} However,
{¶20} The Supreme Court has recognized that ” ‘contrary to law’ [means] ‘in violation of statute or legal regulations at a given time[.]’ ” State v. Jones, 2020-Ohio-6729, ¶ 34, quoting Black‘s Law Dictionary 328 (6th Ed.1990). Therefore, ” ‘a sentence is generally not contrary to law if the trial court considered the
{¶21} The Supreme Court of Ohio outlined the purpose behind the policy in
The General Assembly intended a jointly agreed-upon sentence to be protected from review precisely because the parties agreed that the sentence is appropriate. Once a defendant stipulates that a particular sentence is justified, the sentencing judge no longer needs to independently justify the sentence.
State v. McFarland, 2023-Ohio-3499, ¶ 14 (4th Dist.), quoting State v. Porterfield, 2005-Ohio-3095, ¶ 25.
B. Analysis.
{¶22} In his second assignment of error, Kelly acknowledges that the trial court followed the parties’ jointly-recommеnded sentence, but states that the trial court‘s imposition of more than the mandatory minimum sentence for a first-degree felony is contrary to law. Kelly also concedes that the trial court stated it considered
{¶23} The Supreme Court of Ohio clarified that appellate courts are prohibited from second-guessing a trial court‘s weighing of the
{¶24} Contrary to Kelly‘s argument, a trial court is not required to state the reasons for its findings under
{¶25} In the case sub judice, at both the sentencing hearing and in its judgment entry, the trial court stated that it considered the
{¶26} Accordingly, we cannot find that the sentence is contrary to law. We therefore overrule Kelly‘s second assignment of error, as it is without merit.
CONCLUSION
{¶27} Based оn the record of the trial court and parties’ argument, Kelly has not shown how he was prejudiced by his counsel‘s performance regarding the trial court‘s decision to impose court costs. Further, the trial court considered the
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and any pending motions are denied as moot. Appellant shall pay the costs.
The Court finds there were reаsonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.