STATE OF OHIO v. GARY SHEPARD
No. 95433
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 26, 2011
2011-Ohio-2525
Case No. CR-531451; Criminal Appeal from the Cuyahoga County Court of Common Pleas
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Timothy R. Sterkel
1414 South Green Road
Suite 310
Cleveland, OH 44121
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Tiffany Hill
T. Allan Regas
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 2} On December 15, 2009, Shepard was indicted on eight counts centered on drug possession аnd trafficking. Each count included forfeiture and schoolyard specifications. Shepard entered a plea deal with the state that amended Count 1 of the indictment by removing the schoolyard specification, resulting in a charge of drug trafficking with a forfeiture specification, a felony of the second degree. The state agreed to nolle the remaining seven counts. Count 1 as amended carried a mandatory sentence of two years of incarceration, as opposed to a mandatory three-year sentence before the amendment. The trial court did not specifically acknowledge the amendment on the record during the plea colloquy, but took the plea under the terms as outlined above. Thus, Shepard pleaded guilty to drug trafficking with a forfeiture speсification and was sentenced to a two-year term of incarceration. He forfeited $6,111 and a cell phone.
{¶ 3} Shepard raises three assignments of error, which we will address in turn. Shepard‘s first assignment оf error is as follows: “The trial court committed reversible error when it accepted appellant‘s guilty plea to count one of the indictment.” More specifically, Shepard claims the trial court erred by not accepting the proposed amendment to the indictment on the record and then accepting his plea to “count one of the indictment.” Such
{¶ 4} We review de novo the trial court‘s acceptance of a plea. State v. Sample, Cuyahoga App. No. 81357, 2003-Ohio-2756. “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligеntly, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. Under
{¶ 5} The standard of review for determining whether a plea was knowing, intelligent, and voluntary within the meaning of
{¶ 6} In the current case, Shepard agreed to plead to an amended Count 1. The amendment deleted the schoolyard specificаtion and left the remaining drug trafficking charge with the forfeiture specification as indicted. This lowered the charge to a felony of the second degree from a felony of the first degree. During the plеa colloquy, the trial court did not specifically or formally “accept” the amendment. Nevertheless, in reciting the charge being plead to, the court correctly eliminated the schoolyard specification and stated the charge was a felony of the second degree. Moreover, the June 21, 2010 sentencing entry correctly reflected the amendment of Count 1. Although the court failed to formally accept the amendment during the colloquy, the court recited everyone‘s understanding of the amendment. The trial court substantially complied with the
{¶ 7} Shepard‘s second assignment of error is as follows: “The trial court committed errоr when it imposed a fine against appellant.” Shepard argues that because he was found indigent at his arraignment and his trial counsel orally moved to suspend the fine at
{¶ 8}
{¶ 9} The statute does not wholesale prohibit the court from imposing a fine. Rather it requires the defendant to establish the inability to pay the fine once the affidаvit of indigency is filed. Id. The required filing of an affidavit of indigency for purposes of avoiding a mandatory fine is, in effect, a jurisdictional issue. According to the statute, the trial court must impose a mandatory fine unlеss the affidavit is timely filed. Id.; see
{¶ 11} Shepard‘s third assignment of error is as follows: “Appellant was denied his right to effective assistance of trial counsel guaranteed by thе Sixth Amendment to the United States Constitution and Article 10, Section I of the Ohio Constitution.” Shepard claims his trial counsel was ineffective by allowing Shepard to plead to Count 1 as indicted instead of as amended and by failing to file the affidavit of indigency pursuant to
{¶ 12} In order to substantiate a claim of ineffective assistance of counsel, the apрellant must show that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced the defendant so as to deprive
{¶ 13} In the current case, Shepard first argues that his trial counsel rendered ineffective assistance by allowing Shepard to plead to Count 1 as indicted rather than as amended. Even if we assume that Shepard‘s trial counsel was deficient for failing to perfect the record, Shepard suffered no prejudice from this minor oversight. He received the benefit of the deal he brokered with the state, and the sentencing entry correctly reflected that he pleaded to Count 1 as amended. The schoolyard specification was deleted, and both the entry and the transcript from the plea colloquy properly reflect he pleaded to a felony of the second degree.
{¶ 14} Shepard next argues that the trial counsel‘s failure to file the affidavit of indigency prior to the sentеncing hearing deprived him of the right to seek suspension of the fine based on his inability to pay. The failure
{¶ 15} The Ohio Supreme Court stated that timely filing means “the affidavit must be delivered to the clerk of court for purposes of filing and must be indorsed by the clerk of court, i.e., time-stamped, prior to the filing of the journаl entry reflecting the trial court‘s sentencing decision.” Gipson, 80 Ohio St.3d at paragraph one of the syllabus. Although not addressed by either party, on June 18, 2010, Shepard filed a motion to reconsider the mandatory fine that included the affidavit of indigency. The trial court‘s sentencing entry was not journalized until June 21, 2010. Shepard‘s trial counsel therefore complied with the mandate of
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into exеcution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
SEAN C. GALLAGHER, JUDGE
COLLEEN CONWAY COONEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR