STATE OF OHIO, PLAINTIFF-APPELLEE vs. RYAN MACKEY, DEFENDANT-APPELLANT
No. 99390
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 24, 2013
2013-Ohio-4698
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-560185
AFFIRMED IN PART; REVERSED IN PART AND REMANDED
BEFORE: Keough, J., Stewart, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: October 24, 2013
Donald Gallick
The Law Office of Donald Gallick, L.L.C.
190 North Union Street, #102
Akron, Ohio 44304
Ashley L. Jones
75 Public Square
Suite 714
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: William Leland
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Ryan Mackey, appeals from the triаl court‘s judgment, rendered after a guilty plea, finding him guilty of multiple counts of drug trafficking and sentencing him to a total of three years incarceration and $15,000 in fines.
I. Background
{¶2} Mackey and four codefendants were charged with multiple counts of drug trafficking, drug possession, and possession of criminal tools. Mackey eventually pled guilty to Count 1, drug trafficking in violation of
{¶3} The trial court1 subsequently sentenced Mackey to six months incarceration on Count 1; twenty-four months each on Counts 3, 6, 12, and 15; and three years each on Counts 9 and 18.2 The court ordered the sentences to be served concurrently. The court also sentenced Mackey tо mandatory minimum fines of $7,500 on Counts 9 and 18, for a total of $15,000 in fines.
{¶4} Mackey argues that the trial court did not comply with
{¶5} Under
{¶6} A trial court must strictly comply with the dictates of
{¶7} Mackеy contends that the trial court never advised him at the plea colloquy of the mandatory fine, and that the judge only mentioned the fine in passing when she asked another defendant about his plea on a second-degree felony drug trafficking count, and the prosecutor interjected that “I was going to indicate to the court as relates to defendant Comb and defendant Mackey, those felonies of the second degree carry a mandatory minimum fine of $7,500, half of the $15,000.” The judge asked Comb if he understood and then stated, “It‘s a mandatory $7,500 fine on Mr. Mackey, right?” Mackey contends that the judge never personally informed him of the potential mandatory fine.
{¶8} The record, however, refleсts that when the trial judge was explaining the possible penalties for each count to Mackey, she specifically told him that Count 9 was punishable by “anywhere from two to eight years in prison and a fine of up to $15,000.” When the judge asked Mackey if he understood, Mackey responded affirmatively.
{¶9} Moreover, a defendant must show prejudice before a plea will be vacated for a trial court‘s error involving
{¶10} Mackey does not assеrt that he would not have pled guilty if the trial court had told him the mandatory minimum fine was $7,500. Instead, he argues that because the trial court allegedly did not explain the mandatory fine during thе plea colloquy, he was not able to file an affidavit of indigency prior to sentencing to seek a waiver of the fine.
R.C. 2929.18(B)(1) clearly requires that a sentencing court shаll impose a mandatory fine upon an offender unless (1) the 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 (2) the court determines that the offender is in fact an indigent person and is unable to pay the mandatory fine.
{¶12} The Gipson court further found that although the phrase “prior to sentencing” suggests that a defendant must file his affidavit prior to the sentencing hearing to invoke the statutory procedure for avoiding the mandatory fine, an affidavit of indigency may be properly filed with the clerk of court and time-stamped at any time prior to the filing of the trial court‘s journal entry reflecting the sentencing decision. Id., paragraph one of the syllabus; see also State v. Shepard, 8th Dist. Cuyahoga No. 95433, 2011-Ohio-2525, ¶ 8, citing Gipson. Thus, Mackey could have filed an affidavit of indigency after sentencing but prior to entry of the trial court‘s sentencing judgment.
{¶13} Mackey has not demonstrated that he was prejudiced by the triаl court‘s explanation of the fines, and has not presented any evidence nor made any argument that he would not have entered his plea if the trial court had explained that there was a mandatory minimum fine of $7,500 on Counts 9 and 18. In fact, neither Mackey nor his counsel raised any objection at the plea colloquy or sentencing to thе imposition of the fines. Without any evidence that the plea would not have otherwise been made, Mackey
{¶14} With respect to Mackey‘s assertion that the multi-defendant plea colloquy in this case violated
{¶15} We must reverse the trial court‘s sentencing judgment with respect to Count 18, however, because the record rеflects that the trial judge never took a plea from Mackey on this count. Accordingly, the judgment is affirmed in part, reversed in part, and remanded for a plea hearing on Count 18.
{¶16} Affirmed in part; reversed in part and remanded.
It is ordered that the parties share equally 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
KATHLEEN ANN KEOUGH, JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
MELODY J. STEWART, A.J., CONCURS IN JUDGMENT ONLY