{¶ 2} Appellant sets forth the following assignments of error from his conviction and sentence:
{¶ 3} "First Assignment of Error
{¶ 4} "The defendant-appellant was denied the effective assistance of counsel at trial, in violation of his
{¶ 5} "Second Assignment of Error
{¶ 6} "Defendant-appellant's sentences should be reversed as the trial court failed to comply with the mandates of Revised Code §
{¶ 7} "Third Assignment of Error
{¶ 8} "The trial court erred when it found the defendant-appellant had the ability to ordered [sic] the defendant-appellant to pay the cost of prosecution, supervision, incarceration, costs, and attorney fees."
{¶ 9} On January 13, 2003, appellant was indicted on charges of possession of crack cocaine, aggravated possession of drugs, and aggravated trafficking in drugs. The indictment resulted from a narcotics investigation conducted by the Drug Enforcement Agency Task Force on or about October 25, 2002, at 5383 Lewis Avenue, in Toledo, Lucas County, Ohio. The task force agents were responding to a phone call from a resident of the trailer park regarding suspected drug activity at lot 152. The agents arrived at the suspect lot and observed two cars pull up, one being driven by appellant.
{¶ 10} During the course of the investigation, appellant voluntarily provided his driver's license to Special Agent Roger Rettig. The record clerk found a warrant for appellant's arrest, and appellant was placed under arrest. Pursuant to the arrest a search was conducted of his person. The search revealed one plastic bag containing crack cocaine, a schedule II controlled substance, and one bag containing 3, 4 methylenedioxyamphitamine hydrochloride, a drug similar to ecstasy and a schedule I controlled substance.
{¶ 11} Appellant initially retained private counsel. Subsequently, however, the trial court granted counsel's motion for leave to withdraw, and on March 28, 2003, attorney Thomas Tomczak was appointed as counsel on behalf of appellant. Appellant later indicated he did not believe Tomczak was working in his best interest and asked the court to appoint another attorney to represent him. When the court refused his request, appellant stated that he would represent himself. On April 23, 2003, the trial court found appellant competent to represent himself, but ordered Tomczak to remain as advisory counsel. Thereafter, Tomczak filed a motion to suppress on behalf of appellant.
{¶ 12} On June 3, 2003, a hearing was scheduled to proceed on the motion to suppress. At the hearing, however, appellant expressed his belief that he had been "cloned" by the federal government. Accordingly, the court referred appellant to the Court Diagnostic and Treatment Center to determine his competence to stand trial.
{¶ 13} On July 8, 2003, a hearing was held to determine appellant's competence to stand trial pursuant to R.C.
{¶ 14} On September 30, 2003, the matter proceeded to trial. Initially, the court again addressed the issue of appellant's self-representation. After the court fully informed him of the risks of self-representation, appellant indicated that he still wished to proceed as his own counsel with Tomczak acting as advisory counsel. The court then heard the matter of the motion to suppress. After denying that motion, the case proceeded to trial, at the conclusion of which the jury found appellant guilty of Count 1, possession of crack cocaine, a violation of R.C.
{¶ 15} Appellant was sentenced to serve a term of twelve months on the possession of crack cocaine conviction and a term of five years on the aggravated possession of drugs conviction, those sentences to be served concurrently. This appeal followed.
{¶ 16} In his first assignment of error, appellant asserts that he was denied the effective assistance of counsel in the proceedings below. Specifically, appellant argues that trial counsel failed to recognize appellant's mental illness and erred by not requesting a second evaluation of appellant's competency. Although appellant acted as his own counsel during the motion to suppress hearing and trial below, prior to the court's determination at the motion to suppress hearing that appellant could represent himself, attorney Tomczak was acting as appellant's counsel.
{¶ 17} The right to counsel established by the
{¶ 18} The competency of a defendant is presumed. The presumption is rebutted only when a preponderance of the evidence shows that due to his present mental condition, the defendant was unable to understand the nature of the proceedings against him and could not assist in his defense. R.C.
{¶ 19} Furthermore, it has been held that where there is no indication that a second examination would reveal a different conclusion, a defendant is hard-pressed to establish ineffective assistance of counsel for failing to request a second exam. State v. Womack, 6th Dist. No. L-04-1092,
{¶ 20} The report provided by the evaluating psychologist after the second competency evaluation revealed that, although appellant may have some unusual and delusional beliefs, he demonstrated a good understanding of the trial process and of the seriousness of the charges against him. Appellant's statements while discussing a possible plea agreement in chambers prior to trial illustrate his comprehension of the matter.
{¶ 21} "THE COURT: Okay. I wanted to make sure you understood the differences because tomorrow or whatever the end of the trial is if you're convicted, you're subjecting yourself to a lot more time.
{¶ 22} "MR. ROBINSON: That's all right. I know I'm going to beat it on appeal.
{¶ 23} "MR. TOMCZAK: So you understand if you got seven or eight months to go if you took the deal. The point being is that it's going to take that long to perfect an appeal through the Appellate Court.
{¶ 24} "MR. ROBINSON: It will probably take longer.
{¶ 25} "MR. TOMCZAK: I wanted to make sure you understood it.
{¶ 26} "MR. ROBINSON: I'll have a federal lawsuit. I've already discussed this with other attorneys. They're waiting on my conviction.
{¶ 27} "THE COURT: Well, I'm not suggesting that's good advice or bad advice or if it takes another year for this to be resolved by the Court of Appeals.
{¶ 28} "MR. ROBINSON: I'll end up doing more time. I'm not looking at the time anymore. This has cost me basically everything that I own. Time is not of relevance to me because I already know I'll beat these cases. It doesn't make a difference.
{¶ 29} "THE COURT: That's good. I hope you do.
{¶ 30} "MR. ROBINSON: I know I will. There's no — I mean the only way that I would take a deal if I was offered probation and that's not being offered to me. I'll take it to trial.
{¶ 31} "THE COURT: Okay."
{¶ 32} While appellant's actions and comments throughout the proceeding suggest he may have been mentally disturbed, nothing in the record signifies he did not understand the nature of the proceedings and charges against him. Accordingly, appellant's trial counsel was not ineffective for failing to request a second competency examination.
{¶ 33} Appellant also argues his trial counsel was ineffective for failing to investigate whether appellant met the statutory requirements for the insanity defense. R.C.
{¶ 34} "Q: When you were arrested, you had crack and ecstasy in your pockets?
{¶ 35} "A: When I was searched after these warrants were ran.
{¶ 36} "Q: You had ecstasy?
{¶ 37} "A: That's not ecstasy.
{¶ 38} "Q: The MDA and the crack was in your inside coat pocket, correct?
{¶ 39} "A: Yes, that's correct.
{¶ 40} "Q: You knew it was in there, didn't you?
{¶ 41} "A: I knew it was in there."
{¶ 42} Based on the foregoing, we find appellant failed to meet the burden of establishing that he was denied the effective assistance of counsel in the trial below. Appellant's first assignment of error is not well-taken.
{¶ 43} In his second assignment of error, appellant argues that his sentence was contrary to law because the sentencing judge imposed more than the minimum sentences on both counts, but failed to make the required findings.
{¶ 44} At the outset, we note that a defendant who is convicted of a felony may appeal a prison sentence that was imposed on the ground that the sentence is contrary to law. R.C.
{¶ 45} Appellant was convicted of a fourth degree felony drug offense and a second degree felony drug offense. As to these offenses, R.C.
{¶ 46} "Except as provided in division (E) or (F) of this section, for a felony of the first or second degree and for a felony drug offense that is a violation of any provision of Chapter
{¶ 47} "(1) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under section
{¶ 48} "(2) A community control sanction or combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under section
{¶ 49} Accordingly, for a second degree felony offense and for a fourth degree felony drug offense, a prison term is deemed necessary unless the court makes the findings specified in R.C.
{¶ 50} In addition, R.C.
{¶ 51} "Except as provided in division (C), (D)(1), (D)(2), (D)(3), or (G) of this section, in section
{¶ 52} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 53} "(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."
{¶ 54} For the fourth degree felony drug offense conviction, possession of crack cocaine, the court could sentence appellant to a prison term of 6 to 18 months. R.C.
{¶ 55} At the sentencing hearing, the trial court began by giving both appellant and counsel an opportunity to address the court, and stating that it considered the principles and purposes of sentencing set forth in R.C.
{¶ 56} In his third assignment of error, appellant argues that the trial court's order finding him to reasonably have the means to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution and ordering appellant to reimburse the state of Ohio and Lucas County for such costs is contrary to law. Appellant further asserts that the trial court made no inquiry of his present or future ability to pay. The rules governing the imposition of costs, fees, and sanctions are not uniform; various sections of the Ohio Revised Code govern each type of charge. For this reason, we must address each item individually.
{¶ 57} R.C.
{¶ 58} Costs of confinement in a state institution may be imposed upon an offender pursuant to R.C.
{¶ 59} "Before imposing a financial sanction under section
{¶ 60} R.C.
{¶ 61} "However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay."
{¶ 62} R.C.
{¶ 63} In the proceedings below, the court assessed the above costs to appellant with no inquiry into his present or future ability to pay. It did not address the issue at the sentencing hearing and only referenced the imposition of costs in the judgment entry. It follows that the court did not make the required findings of R.C.
{¶ 64} On consideration whereof, the court finds that appellant was not prejudiced or prevented from having a fair trial. The judgment of conviction and sentence, however, is affirmed in part and reversed in part. The trial court's judgment ordering appellant to pay the costs of supervision, confinement and assigned counsel is vacated. Appellant and appellee are each ordered to pay one-half of the costs of this appeal pursuant to App. R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
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, amended 1/1/98.
Handwork, J., Pietrykowski, J., Arlene Singer, P.J., Concur.