State v. MaloyState v. Maloy
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Julia R. Bates, Lucas County Prosecuting Attorney, and Lindsay D. Navarre, Assistant Prosecuting Attorney, and J. Christopher Anderson, Assistant Prosecuting Attorney, for appellee.
Spiros P. Cocoves, for appellant.
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YARBROUGH, J.
{¶1} This is an appeal from the judgment of the Lucas County Court of Common Pleas, sentencing appellant to 73 years in prison, and ordering him to pay the “costs of
{¶2} On March 30, 2010, the Lucas County Grand Jury issued a 15-count indictment against appellant. The indictment was based on appellant‘s actions in seven separate incidents, and included charges of aggrаvated burglary, aggravated robbery, kidnapping, and rape. Fourteen of those counts included a firearm specification. On September 20, 2011, appellant withdrew his earlier plea of not guilty, and entered a plea of no contest to the following: Count 1, aggravated burglary in violation of
{¶3} After being found guilty by the trial court of the charges to which he pleaded no contest, a sentencing hearing was held on November 15, 2010. At the hearing, the trial court sentenced appellant to ninе years in prison on Count 1 with an
{¶4} The trial court also held that “Defendant found to have, or reasonably may be expected 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. 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 cost assessed pursuant to
{¶5} Appellant has timely appealed and now raises the following two assignments of error.
{¶6} 1. “THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. MALOY WHEN IT SENTENCED HIM TO NON-MINIMUM, CONSECUTIVE SENTENCES BASED ON FACTS NOT ALLEGED IN THE INDICTMENT NOR ADMITTED BY MR. MALOY, IN VIOLATION OF HIS RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW UNDER THE FIFTH, SIXTH, AND
{¶7} 2. “THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. MALOY WHEN IT ORDERED HIM TO PAY UNSPECIFIED COSTS, INCLUDING COURT APPOINTED FEES, WITHOUT FIRST DETERMINING THE ABILITY TO PAY THOSE COSTS OR, IN THE ALTERNATIVE, TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE AN OBJECTION TO THE IMPOSITION OF THESE COSTS, ALL IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING PROVISIONS OF THE OHIO CONSTITUTION.”
{¶8} As to appellant‘s first assignment of error, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus, held that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than minimum sentences.” Appellant raises the familiar argument that this portion of Foster has been made invalid by the United States Supreme Court‘s decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517. Therefore, appellant contends that the trial court was required to follow the pre-Foster sentencing requirements, аnd its failure to do so violated his right to due process. However,
{¶9} Under his second assignment of error, appellant contends thаt nothing in the record supports the trial court‘s finding that he has any present or future ability to pay any costs or fees while serving his 73-year sentence. In this case, the monetary penalty ordered by the trial court can bе broken down into three categories. First are the mandatory costs of prosecution imposed pursuant to
{¶10} In addressing the mandatory costs, it is well settled that “an indigent defendant must move a trial court to waive payment of costs at the time of sentencing. If the defendant makеs such a motion, then the issue is preserved for appeal and will be reviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and costs are res judicata.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, ¶ 23. Here, the record is clear that no mоtion was made to waive payment of the mandatory costs.
{¶11} Appellant alternatively argues that trial counsel was ineffective for failing to object to the trial court‘s imposition of these costs. To demonstrate ineffective assistance of counsel, appellant must satisfy the twо-prong test developed in Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. That is, appellant must show that counsel‘s performance fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for counsеl‘s error, the result of the proceedings would have been different. Strickland at 687-688. Here, appellant has failed to demonstrate that the result of the proceedings would have been different had the purported errors not occurred.
{¶12}
{¶13} The second cаtegory of costs imposed by the trial court is the costs of confinement.
{¶14} Like the costs of confinement, the imposition of costs for appointed counsel also depends on appellant‘s ability to pay.
{¶15} Here, the trial court affirmatively stated that it found the appellant has, or reasonably may be expected to have, the means to pay all or part of the applicable costs. Appellant, however, argues that the record is devoid of any evidence that supports the trial court‘s determination of his ability to pay. We agree. Although appellant is now in his early 20s, the record indicates that he only made it to his sophomore year in high school and has never been gainfully employed.2 Moreover, appellant will be incarcerated
{¶16} Based on the foregoing, the judgment of the Lucas County Court of Common Pleas is affirmed in part and reversed in part. The portion of the court‘s sentencing order requiring appellant to pay the costs of his confinement and appointed counsel is vacated. The imposition of all other costs is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A).
JUDGMENT AFFIRMED, IN PART AND REVERSED, IN PART.
A certified copy 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
Arlene Singer, J. ____________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter оf 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.