2003 Ohio 5352 | Ohio Ct. App. | 2003
{¶ 2} On February 6, 1998, appellant was indicted by a Portage County Grand Jury of possession of marijuana, complicity to trafficking in drugs, possession of criminal tools and funding of marijuana trafficking. At his arraignment, appellant entered a plea of not guilty.
{¶ 3} On April 22, 1998, pursuant to a plea agreement, appellant issued a written guilty plea with the trial court to the charges of possession of marijuana, in violation of R.C.
{¶ 4} On May 15, 1998, following a sentencing hearing, the trial court filed its judgment entry sentencing appellant to three years of incarceration on each count, the terms to be served consecutively.1 As part of his sentence, appellant was also assessed a mandatory fine of $5,000 for each count, and his driver's license was suspended for five years.
{¶ 5} During appellant's incarceration, the Portage County Sheriff, pursuant to a writ of execution, seized an aluminum canoe owned by appellant. The canoe was later sold at an auction, and its proceeds were applied to appellant's fines and court costs.
{¶ 6} On February 19, 1999, appellant filed a pro se motion to vacate the trial court's order requiring payment of court costs, fines and/or restitution. As part of his motion to vacate, appellant attached an affidavit of indigency which stated that he had no means of financial support and no assets of any value. Ultimately, the trial court denied appellant's motion to vacate.
{¶ 7} On April 15, 1999, appellant filed a pro se delayed motion to withdraw his guilty plea. Appellant argued that his guilty plea should be withdrawn because the trial court failed to inform him that he was not eligible for parole and failed to inform him of the maximum penalty for his offenses. On May 6, 1999, the trial court issued a judgment entry denying appellant's delayed motion to withdraw his guilty plea.
{¶ 8} Appellant then filed an appeal with this court regarding the trial court's denial of his delayed motion to withdraw his guilty plea. We affirmed the judgment of the trial court and found that appellant substantially understood the implications of his plea and the rights that he waived.
{¶ 9} On November 2, 2001, appellant filed with the trial court a pro se motion to correct an illegal sentence. Appellant argued that his sentence violated the double jeopardy clause of both the Ohio Constitution and United States Constitution. Furthermore, appellant contended that the trial court erred by failing to consider the minimum sentence of one year, and did not conform with the mandates of R.C.
{¶ 10} The trial court issued a judgment entry on November 9, 2002, which overruled appellant's motion to correct an illegal sentence. Subsequently, this court granted appellant's motion for leave to file a delayed appeal and allowed for appointment of counsel.
{¶ 11} In the present appeal, appellant sets forth six assignments of error for our consideration:
{¶ 12} "[1.] Appellant's convictions for both funding of marijuana trafficking and possession of marijuana violate the double jeopardy clauses as set forth in the United States Constitution and R.C.
{¶ 13} "[2.] The trial court erred by imposing sentences greater than the minimum sentence available upon appellant, in violation of R.C.
{¶ 14} "[3.] The trial court erred by imposing consecutive sentences upon appellant.
{¶ 15} "[4.] The trial court violated appellant's right to due process, as set forth in the United States and Ohio Constitutions, by issuing a judgment of forfeiture concerning appellant's property.
{¶ 16} "[5.] The trial court erred in imposing $10,000 in fines upon appellant when the court had clear evidence before it of appellant's indigence.
{¶ 17} "[6] The appellant received ineffective assistance of counsel in violation of his rights pursuant to the
{¶ 18} In his first assignment of error, appellant contends that the counts of possession of marijuana and funding of marijuana trafficking are allied offenses of similar import under R.C.
{¶ 19} As an initial matter, we note that appellant failed to properly object to the trial court's failure to merge the two counts. Appellant's failure to raise the issue of merger in the trial court constitutes a waiver of the error claimed. State v. Comen (1990),
{¶ 20} Despite our finding that appellant has waived any challenge to the issue of merger, further examination clarifies that the trial court did not err in failing to merge the two offenses. R.C.
{¶ 21} "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 22} "(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
{¶ 23} R.C.
{¶ 24} Based upon R.C.
{¶ 25} "In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses." Id.
{¶ 26} When examining the first step, the statutory elements of each offense must be compared in the abstract. Rance at 637. In other words, the court should align the elements of each offense, and inquire whether the statutory elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other. State v. Childs,
{¶ 27} Appellant concedes that when compared in isolation the elements of both offenses do not correspond to such a degree that the commission of one crime will result in the commission of the other. Nevertheless, appellant argues that by comparing the elements of each offense in conjunction with the specifications of each offense such correspondence is present. We disagree.
{¶ 28} Generally, when a specification does not charge a separate offense, it "cannot merge with a substantive offense." State v. Dennis,
{¶ 29} In the instant case, the specifications for each offense are identical. Both explained that appellant, at the time of the commission of the offense, was in possession of $119,080. The specifications further explain that this money was used or intended to be used to commit, or to facilitate the commission of the offense.
{¶ 30} First we note that the specifications cannot be merged with each offense as to facilitate an abstract comparison. Also, the specifications do not represent separate offenses charged against appellant. Thus, we must limit our review, under R.C.
{¶ 31} Appellant's second assignment of error contends that the trial court erred by failing to specify any of the factors under R.C.
{¶ 32} In pertinent part R.C.
{¶ 33} "(B) * * * if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense[,] * * * unless one or more of the following applies:
{¶ 34} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 35} "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 36} In State v. Edmonson,
{¶ 37} Appellant points out that the trial court failed to expressly state on the record that it had found either or both of the two statutory requirements. Appellant, however, fails to observe that his sentence was based upon a jointly recommended sentence.
{¶ 38} We have previously held that "[b]ecause the court was imposing a jointly recommended sentence, * * * the Edmonson requirements relating to R.C.
{¶ 39} In the case sub judice, appellant entered a written plea agreement with the trial court which stated that appellant was pleading guilty to possession of marijuana and funding of marijuana trafficking. It further stated that each count was to carry a maximum penalty of one to five years in prison.
{¶ 40} At the sentencing hearing the prosecutor stated:
{¶ 41} "[p]ursuant to Rule 11(F) negotiations between the State of Ohio and the defense, the defendant agreed and the state agreed the appropriate sentence would be for the defendant to serve three years in prison on each count, and that three years on each count would run consecutively."
{¶ 42} Following the prosecutor's statement, appellant's trial counsel agreed that the negotiations as stated were pursuant to Crim.R. 11(F), and the recommended sentence would be three years on each of the counts, to run consecutively.
{¶ 43} The record indicates that appellant freely and knowingly entered into the plea agreement and jointly recommended sentence.2
The only issue is whether the law authorizes the recommended sentence. "`[A] jointly recommended sentence is authorized by law and not subject to appellate review if the prison term imposed does not exceed the maximum term prescribed by statute for such offense.'" Salsgiver at 2, quoting State v. Bristow (Jan. 29, 1999), 3d Dist. No. 3-98-21, 1999 Ohio App. LEXIS 941, at 6. In the case sub judice, each offense was a felony of the third degree, which carries a maximum statutory penalty of five years incarceration. The imposed recommended sentence was for three years on each count. This is well within the maximum term prescribed by statute. Therefore, the trial court was not required to state its findings, under R.C.
{¶ 44} Under his third assignment of error, appellant contends that the trial court erred by failing to present on the record its findings relating to the statutory requirements of R.C.
{¶ 45} Appellant correctly states that the trial court must make its findings relating to R.C.
{¶ 46} We find the case of State v. Harris (Dec. 31, 2001), 10th Dist. No. 01AP-340, 2001 Ohio App. LEXIS 5989, to be analogous to the case at bar. In Harris, the trial court sentenced the defendant to a prison term of two years on each of three separate counts, to be served consecutively. Id. at 2. This consecutive sentence was based upon a joint recommendation between the defendant and the prosecution. Id. Ultimately, the court in Harris found "[w]hile defendant asserts that the trial court failed to state the specific reasons for imposing consecutive sentences, such findings were unnecessary because the sentence imposed was an agreed sentence * * *." Id. at 10. Such is the case here, in which appellant and the prosecution set forth an agreed upon recommended sentence of three years for each count, to run consecutively.
{¶ 47} Since the trial court adopted the parties' recommended sentence for consecutive terms of incarceration, the trial court was not required to state its findings on the record. Accordingly, appellant's third assignment of error is meritless.
{¶ 48} In his fourth assignment of error, appellant contends that his due process rights were violated by the issuance of a judgment of forfeiture for various pieces of his property without notification and/or a forfeiture hearing.3 Specifically, appellant claims that the following items of personal property have been usurped by the Portage County Police Department prior to his receipt of proper notification and/or a forfeiture hearing: (1) $119,080 confiscated during the commission of the offenses charged; (2) $487.18 taken from appellant's pants pocket; (3) a Bayliner boat; and (4) an aluminum canoe.
{¶ 49} First, we will examine appellant's claims as to the $119,080, $487.18, and the Bayliner boat. Appellant argues that if these items have been forfeited, appellant's due process rights have been violated since appellant received no notification of such forfeiture, and no forfeiture hearing was held.
{¶ 50} After reviewing the record, it is unclear as to the whereabouts and status of these three pieces of property. Absent from the record is any evidence that the property has been forfeited or otherwise disposed of by the police department.
{¶ 51} It is well established that it is the defendant's responsibility to provide the reviewing court with a record of the facts, testimony, and evidentiary matters that are necessary to support his or her assignments of error. Volodkevich v. Volodkevich (1989),
{¶ 52} As to the canoe, the record demonstrates that a canoe was seized by police authorities, pursuant to a writ of execution ordered by the trial court, and later forfeited. The seizure and forfeiture of the canoe were made pursuant to R.C.
{¶ 53} Our analysis of this issue begins with an examination of R.C.
{¶ 54} "If a nonindigent person convicted of a felony fails to pay the costs of prosecution pursuant to section
{¶ 55} "When a levy is made upon property under such execution, a writ shall forthwith be issued by the clerk for the sale thereof, and such sheriff shall sell the property and make return thereof, and after paying the costs of conviction, execution, and sale, pay the balance to the person authorized to receive it."5
{¶ 56} The language of R.C.
{¶ 57} "R.C.
{¶ 58} Although White dealt specifically with R.C.
{¶ 59} "`In both criminal and civil cases, costs are taxed against certain litigants for the purpose of lightening the burden on taxpayers financing the court system. As we view it, statutory provisions for payment of court costs were not enacted to serve a punitive, retributive, or rehabilitative purpose, as are fines.'
{¶ 60} "In this present matter, the trial court imposed court costs, not fines, against appellant. We also note that R.C.
{¶ 61} Based upon the foregoing analysis, it is evident that the trial court was not required to hold a hearing prior to the seizure and forfeiture of appellant's canoe, regardless of his possible indigent status. This portion of appellant's assignment of error is also not well taken. Appellant's fourth assignment of error is without merit.
{¶ 62} In his fifth assignment of error, appellant argues that the trial court erred in imposing $10,000 in mandatory fines when evidence of appellant's indigence was before the trial court. Appellant points to his presentence investigation report and the trial court's previous finding of appellant's indigency, which warranted appointment of counsel, as evidence of his indigency.
{¶ 63} We must first evaluate R.C.
{¶ 64} "For a first, second, or third degree felony violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense pursuant to division (A)(3) of this section. If an offender alleges in an affidavit filed with the courtprior to sentencing that the offender is indigent and unable to pay themandatory fine and if the court determines the offender is an indigentperson and is unable to pay the mandatory fine described in thisdivision, the court shall not impose the mandatory fine upon theoffender." (Emphasis added.)
{¶ 65} R.C.
{¶ 66} In the instant case appellant failed to supply the trial court with an affidavit attesting to his indigency. Instead, appellant requests that we rely upon his presentence investigation report and the trial court's previous finding of indigency for appointment of counsel as evidence of his indigency for sentencing purposes. We decline to do so.
{¶ 67} In State v. Gipson,
{¶ 68} Furthermore, in State v. Grissom, 11th Dist. No. 2001-L-107, 2002-Ohio-5154, 2002 Ohio App. LEXIS 5206, this court was presented with the issue of whether the trial court erred by imposing mandatory fines when a defendant failed to submit an affidavit of indigency, but had previously been found to be an indigent for the purpose of appointment of counsel. We found that there is an important distinction to be made between indigency as it relates to a defendant's right to counsel and proof of indigency required to avoid a mandatory statutory fine. Id. at ¶ 34.
{¶ 69} The trial court, when determining indegency for avoidance of a mandatory fine, has wide latitude to determine whether an offender is in fact indigent. Id. at ¶ 35. In other words, when deciding whether a defendant is an indigent for the purpose of appointment of counsel, the trial court need only inquire into the defendant's indigency status at the time the request for counsel was made. Id. However, when evaluating indigency for the avoidance of a mandatory fine, the trial court may inquire into the defandant's ability to pay the mandatory fine in the future, and is not limited to the indigency status of the defendant at the time the fine was imposed. Id.
{¶ 70} This being the case, the trial court's finding that appellant was an indigent requiring appointment of counsel is irrelevant to our determination of whether appellant was an indigent and entitled to avoid a mandatory fine. Due to appellant's failure to supply the trial court with an affidavit of indigency prior to sentencing, we find that the requirements of R.C.
{¶ 71} Finally, appellant's sixth assignment of error contends that he received ineffective assistance of counsel. Appellant's issue for review queries whether his trial counsel was ineffective where the record reveals that counsel failed to object to or request a hearing concerning: (1) appellant's guilty plea to and conviction of allied offenses of similar import; and (2) appellant's sentence to mandatory fines, despite defendant's inability to pay.
{¶ 72} To establish ineffective assistance of counsel, appellant must demonstrate "(1) deficient performance by counsel, i.e., that, in light of all the circumstances, counsel fell below an objective standard of reasonable representation, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's unprofessional errors, the proceeding's result would have been different." State v. Group,
{¶ 73} A threshold issue is whether appellant's counsel erred by failing to object to his guilty plea or by failing to file an affidavit of indigency prior to the trial court's sentence to pay mandatory fines. We previously found in appellant's first assignment of error that possession of marijuana and funding of marijuana trafficking are not allied offenses of similar import. Therefore, appellant's counsel did not err by failing to object to appellant's guilty plea in this respect.
{¶ 74} Appellant also argues that he received ineffective assistance of counsel due to counsel's failure to supply the trial court with an affidavit of indigency regarding mandatory fines. It is important to recognize that judicial scrutiny of counsel's performance must be highly deferential, indulging a strong presumption that counsel's conduct "falls within the wide range of reasonable professional assistance." Strickland v. Washington (1984),
{¶ 75} We previously found that counsel's failure to file an affidavit of indigency prior to appellant's sentencing precluded appellant from objecting to the trial court's imposition of the mandatory fines. Ohio Courts have held that the failure to file an affidavit attesting to a defendant's indigency only establishes ineffective assistance of counsel when the record shows a reasonable probability that the trial court would have found the defendant indigent. See, e.g.,State v. Powell (1992),
{¶ 76} Here, the presentencing investigation report provides evidence regarding appellant's employment history and educational background. The report shows that appellant was unemployed at the time of his arrest and collecting $159 per week in unemployment. His most recent job as a welder and electrician paid $9 an hour. Appellant's educational background was limited to a high school degree and a one hundred and twenty-hour security course.
{¶ 77} Based upon the above information, it is reasonable to conclude that appellant could have proven himself indigent had his counsel submitted an affidavit of indigency. Therefore, to the limited extent that appellant's trial counsel failed to file an affidavit of indigency when appellant faced imposition of a mandatory fine, we find that appellant was denied effective assistance of counsel.
{¶ 78} Appellant's sixth assignment of error is with merit. This matter is remanded to the trial court to allow appellant to file an affidavit of indigency as to the imposition of the $10,000 mandatory fine. The trial court is then required to hold a hearing to determine the indigency status of appellant and proceed in accordance with R.C.
{¶ 79} Based upon the foregoing analysis we find appellant's first, second, third, fourth, and fifth assignments of error to be without merit. Appellant's sixth assignment of error is with merit. The judgment of the trial court is affirmed in part and reversed in part and the matter is remanded for further proceedings consistent with our findings.
WILLIAM M. O'NEILL and CYNTHIA WESTCOTT RICE, JJ., concur.
