STATE OF OHIO v. TARRA M. MURRAY
CASE NO. 2023-P-0016
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
October 16, 2023
[Cite as State v. Murray, 2023-Ohio-3762.]
OPINION
Decided: October 16, 2023
Judgment: Affirmed in part and reversed in part; remanded
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Wesley C. Buchanan and Kimberlyn Seccuro, 50 South Main Street, Suite 625, Akron, OH 44308 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{1} Appellant, Tarra M. Murray (“Ms. Murray“), appeals from the judgment entry of the Portage County Court of Common Pleas that sentenced her to a 24-month term of imprisonment and imposed a mandatory $5,000 fine after accepting her guilty plea to one count of aggravated possession of drugs.
{2} Ms. Murray raises three assignments of error, contending (1) she received ineffective assistance of counsel because her counsel failed to file an affidavit of indigency prior to sentencing and the trial court imposed a $5,000 fine; (2) the trial court failed to strictly comply with
{3} After a thorough review of the record and pertinent law, we find Ms. Murray‘s first assignment of error to be with merit. If her counsel had filed an affidavit of indigency, there is a reasonable probability the trial court would not have imposed a fine. The presentence investigation (“PSI“) reveals evidence of indigency, i.e., Ms. Murray is on government assistance, she has a limited educational background, and she has an extensive criminal history. The trial court‘s imposition of the $5,000 mandatory fine is reversed, and this matter is remanded to allow Ms. Murray to file an affidavit of indigency and for the trial court to hold a hearing to determine her indigency status in accordance with
{4} We find Ms. Murray‘s remaining assignments of error to be without merit because there is no requirement pursuant to
{5} The judgment of the Portage County Court of Common Pleas is affirmed in part and reversed in part as to the imposition of the $5,000 mandatory fine. This matter is remanded to allow Ms. Murray to file an affidavit of indigency and for the trial court to hold a hearing to determine her indigency status in accordance with
Substantive and Procedural History
{6} In February 2023, Ms. Murray pleaded guilty to one count of aggravated possession of drugs, methamphetamine, a third-degree felony, in violation of
{7} At the plea hearing, the trial court engaged Ms. Murray in a
{8} After accepting her guilty plea, the trial court reviewed that Ms. Murray violated several conditions of her bond by testing positive for drugs and failing to report for screening. The trial court ordered another drug screen and set the matter for a PSI.
{9} The PSI revealed Ms. Murray has an extensive criminal history of largely theft and drug abuse offenses, she is unemployed, she receives government assistance, and she has a limited educational background.
{10} Approximately one month later, the trial court held a sentencing hearing. After hearing from the state, defense counsel, and Ms. Murray, the trial court sentenced Ms. Murray to a 24-month term of imprisonment. The trial court also imposed
{11} Ms. Murray raises three assignments of error for our review:
{12} “[1.] Tarra received ineffective assistance of counsel.
{13} “[2.] The trial court failed to strictly comply with
{14} “[3.] Tarra‘s plea was not knowingly, intelligently, or voluntarily entered into.”
Ineffective Assistance of Counsel
{15} In her first assignment of error, Ms. Murray contends her trial counsel was ineffective for failing to submit an affidavit of indigency with the clerk‘s office prior to sentencing.
{16} To establish a claim of ineffective assistance of counsel, an appellant must demonstrate (1) her counsel was deficient in some aspect of his representation, and (2) there is a reasonable probability that, were it not for counsel‘s errors, the result of the proceedings would have been different. State v. Laudermilk, 11th Dist. Portage No. 2021-P-0054, 2022-Ohio-659, paragraph 58; see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{17} The failure to file an affidavit attesting to a defendant‘s indigency establishes ineffective assistance of counsel when the record shows a reasonable probability that the trial court would have found the defendant indigent. State v. McDowell, 11th Dist. Portage No. 2001-P-0149, 2003-Ohio-5352, paragraph 75. See also State v. Hodge, 2d Dist. Montgomery No. 23964, 2011-Ohio-633, paragraph 66.
{18} We review the imposition of costs and financial sanctions under
{19} Pursuant to
{20} Thus, under Ohio law, a trial court must impose a mandatory fine unless (1) the offender files an affidavit of indigency prior to sentencing, and (2) “the trial court finds that the offender is an indigent person and is unable to pay the mandatory fines.” State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998). In making its indigency determination, the court must consider both the offender‘s present and future ability to pay the fine.
{21} Ms. Murray pleaded guilty to one count of aggravated possession of drugs, a third-degree felony, in violation of
{22} In this case, the trial court made no findings of indigency and Ms. Murray‘s ability to pay. We do, however, have the benefit of the PSI, which indicates she is on government assistance (for food stamps, housing, and medical insurance), and she is unemployed. Further, her education is limited to a high school diploma, she has two young children, she suffers from mental health issues and drug addiction, and she has an extensive criminal history.
{23} Based upon this, it is reasonable to conclude Ms. Murray could have proven herself indigent had her counsel filed an affidavit of indigency prior to sentencing. Further, her counsel was obviously aware of her indigency. He was her appointed counsel and informed the court at the sentencing hearing that he reviewed Ms. Murray‘s PSI with her. Thus, we find Ms. Murray was denied effective assistance of counsel.
{24} In a similar case, McDowell, supra, we found counsel was ineffective because there was a reasonable probability the trial court would have made a finding of indigency had counsel submitted an affidavit of indigency. Id. at paragraph 77. The appellant‘s PSI provided evidence of the appellant‘s employment history, which revealed he was making no more than $9 per hour, and he had a limited educational background. Id. at paragraph 76. We reversed as to the imposition of the mandatory fine and remanded to allow the appellant to file an affidavit of indigency and for the trial court to hold a hearing to determine his indigency status in accordance with
{25} Likewise, in State v. Warren, 5th Dist. Fairfield No. 18-CA-42, 2019-Ohio-2927, the Fifth District determined that a reasonable probability existed that the trial court would have found the appellant indigent had his trial counsel filed an affidavit of indigency prior to sentencing. Id. at paragraph 101. The appellant‘s affidavit for appointed counsel indicated he was unemployed, homeless, and had no income, and his PSI indicated he had an extensive criminal history. Id. at paragraph 100. See also Hodge, supra, at paragraph 71 (A reasonable probability existed that the trial court would have found the appellant indigent and unable to pay the mandatory fine for his felony drug offense had defense counsel filed an affidavit of indigency prior to sentencing).
{26} Ms. Murray‘s first assignment is with merit. This matter is reversed as to the imposition of the $5,000 mandatory fine and remanded to allow Ms. Murray to file an affidavit of indigency and for the trial court to hold a hearing to determine her indigency status in accordance with
Crim.R. 11(C)(2)(c) - The “Right Not to Testify”
{27} Ms. Murray‘s second and third assignments of error concern whether the trial court sufficiently advised her that she cannot be compelled to testify against herself; thus, we will address them together. More specifically, in her second assignment of error, Ms. Murray contends the trial court failed to strictly comply with
{29}
{30} In relevant part,
{31} “In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally * * * and doing all of the following:
{32} “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
{33} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{34} “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.” (Emphasis added.)
{35} In State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286 (2020), the Supreme Court of Ohio explained that when a criminal defendant seeks to have his conviction reversed on appeal, the traditional rule is he must establish that an error occurred in the trial-court proceedings and he was prejudiced by that error. Id. at paragraph 13.
{36} There are limited exceptions to the prejudice component. When a trial court fails to explain the constitutional rights a defendant waives by pleading guilty or no contest, we presume the plea was entered involuntarily and unknowingly, and no showing of prejudice is required. Id. at paragraph 14. Similarly, a trial court‘s complete failure to comply with a portion of
{37} On appellate review, the questions to be answered are “(1) has the trial court complied with the relevant provision of the rule? (2) if the court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?” Id. at paragraph 17.
{38} In Caudell, a comparable case, we explained “[t]he Supreme Court of Ohio has held that the preferred method of informing a criminal defendant of his or her constitutional rights during
{39} Ms. Murray contends the trial court erred by failing to inform her that her “right to remain silent could not be used against her.” Our review of the plea hearing transcript reveals the trial court informed Ms. Murray, “You have a constitutional right not to testify, but if you wanted to you could.” Ms. Murray confirmed she understood the rights she was waiving by making a guilty plea.
{40} We rejected the same argument in State v. Hayes, 11th Dist. Portage No. 2014-P-0044, 2016-Ohio-2794, in which the trial court asked the appellant if he understood he was not required to testify against himself. Id. at paragraph 9. The appellant contended the trial court failed to inform him he had the right to remain silent and his silence could not be used against him. Id. at paragraph 13. In sum, we determined the trial court strictly complied with
{41} Likewise in State v. Phillips, 8th Dist. Cuyahoga No. 108423, 2020-Ohio-800, the Eighth District rejected the appellant‘s contention that the trial court‘s advisement was inadequate because it did not advise him the state would not be permitted to comment on his silence if he chose not to testify. Id. at paragraph 7. The court reviewed its past holdings, noting that “when a defendant is instructed that he has the right not to testify at trial, it follows that he has a right to remain silent at trial and cannot be compelled to testify against himself.” Id. at paragraph 8, quoting State v. McElroy, 8th Dist. Cuyahoga No. 104639, 2017-Ohio-1049, paragraphs 27-28. See also State v. Jones, 8th Dist. Cuyahoga No. 104189, 2016-Ohio-5712, paragraphs 10-12; State v. Eckles, 173 Ohio App.3d 606, 2007-Ohio-6220, 879 N.E.2d 829, paragraph 39 (7th Dist.) (
{42} As we explained in Caudell, “[t]he text of
{43} In this case, the record reveals the court explained to Ms. Murray she had a constitutional right not to testify, i.e., she could not be compelled to testify against herself. She affirmatively stated she understood the rights she was waiving, and she expressed no confusion during the
{44} Thus, the trial court did not fail to advise Ms. Murray she could not be compelled to testify against herself, and her plea was knowingly, intelligently, and voluntarily made. In sum, Ms. Murray failed to demonstrate the trial court did not comply with
{45} Ms. Murray‘s second and third assignments of error are without merit.
{46} The judgment of the Portage County Court of Common Pleas is affirmed in part and reversed in part as to the imposition of the $5,000 mandatory fine. This matter is remanded to allow Ms. Murray to file an affidavit of indigency and for the trial court to hold a hearing to determine her indigency status in accordance with
EUGENE A. LUCCI, J.,
ROBERT J. PATTON, J.,
concur.