STATE OF OHIO v. ROBERT TAYLOR
Appellate Case No. 27700
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
July 20, 2018
2018-Ohio-2858
Trial Court Case No. 2016-CR-1970 (Criminal Appeal from Common Pleas Court)
OPINION
Rendered on the 20th day of July, 2018.
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 125 West Main Street, Suite 201, Fairborn, Ohio 45324 Attorney for Defendant-Appellant
{¶ 1} Robert Taylor pled guilty in the Montgomery County Court of Common Pleas to kidnapping and gross sexual imposition of a person less than thirteen years of age. The trial court sentenced him to five years of community control and ordered him to pay a supervision fee of $250, court-appointed counsel fees of $130, and court costs.
{¶ 2} Taylor appeals from his conviction, claiming that the trial court erred in ordering him to pay a court-appointed counsel fee. Taylor also claims that his trial counsel was ineffective by failing to request a waiver of the court-appointed counsel fee, the supervision fee, and court costs. For the following reasons, the judgment of the trial court will be affirmed in part and reversed in part, and the matter will be remanded for the filing of an amended judgment entry that omits the imposition of court-appointed counsel fees.
I. Procedural History
{¶ 3} On October 19, 2016, Taylor was indicted for one count of rape of a person less than thirteen years of age in violation of
{¶ 4} On the scheduled trial date, Taylor accepted a plea bargain offered by the State, whereby Taylor agreed to plead guilty by bill of information to one count of kidnapping in violation of
{¶ 6} Taylor appeals from his conviction, raising two assignments of error related to the monetary portions of his sentence.
II. Ability to Pay Court-Appointed Counsel Fees
{¶ 7} In his first assignment of error, Taylor claims that the trial court “erred in ordering [him] to pay court-appointed counsel fees.” Taylor contends that the $130 court-appointed counsel fee imposed by the trial court should be vacated, because the trial court failed to notify him of the fee at the sentencing hearing and failed to consider his ability to pay the fee before it was imposed.
{¶ 8} At the outset, a trial court‘s order to pay court-appointed counsel fees is distinguishable from both court costs and financial sanctions, which are also distinguishable from each other.
{¶ 9} Pursuant to
{¶ 10} Under
{¶ 11} Court-appointed counsel fees and expenses approved by a court are not court costs or a financial sanction, and they are not directly enforceable as a criminal sanction.
{¶ 12} Nevertheless, “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.”
{¶ 13} It is not the defendant‘s burden to show that he has the means to pay court-appointed counsel fees. Absent a contrary determination by the court, the mandate of the statute is that appointed counsel‘s fees are paid by the county. Stated simply, counsel‘s fees are paid by the county unless evidence shows that he or she is able to pay.
{¶ 14} To properly impose court-appointed counsel fees, the trial court must (1) consider the defendant‘s ability-to-pay and the amount thereof, and (2) notify the defendant of the imposition of court-appointed counsel fees at sentencing. Shirk at ¶ 9; Springs at ¶ 10. “[A] trial court errs when it orders a defendant to pay court-appointed counsel fees without notifying the defendant of that requirement at sentencing and determining the defendant‘s ability to pay those fees.” (Citation omitted.) State v. Mitchell, 2d Dist. Clark No. 2014-CA-108, 2016-Ohio-1422, ¶ 24.
{¶ 15} In this case, the record establishes that the trial court properly notified Taylor of his obligation to pay the court-appointed counsel fees at the sentencing hearing and included the order to pay the fee in the sentencing entry. However, the trial court did not expressly state at the sentencing hearing that it found Taylor had the ability to pay the imposed court-appointed counsel fees.
{¶ 16} The State urges this court to infer that the trial court determined Taylor had the ability to pay the fee from the trial court‘s review of the PSI, which contains information regarding Taylor‘s monthly income, employment history, and health.
{¶ 17} Several appellate districts have held that the trial court must make an “affirmative determination on the record” that the defendant has, or reasonably may be expected to have, the means to pay all or some part of the cost of the legal services rendered to him. E.g., Galion v. Martin, 3d Dist. Crawford No. 3-91-6, 1991 WL 261835, *5 (Dec. 12, 1991); State v. Watkins, 96 Ohio App.3d 195, 198, 644 N.E.2d 1049 (1st Dist.1994) (relying on Galion); State v. Dahms, 6th Dist. Sandusky No. S-11-028, 2012-Ohio-3181, ¶ 29; State v. McGee, 7th Dist. Jefferson No. 02-JE-39, 2003-Ohio-2239, ¶ 8; State v. Drew, 8th Dist. Cuyahoga No. 83563, 2004-Ohio-3609, ¶ 9; State v. Dunaway, 12th Dist. Butler No. CA2001-12-280, 2003-Ohio-1062, ¶ 39. However, what satisfies the trial court‘s duty to make an “affirmative determination on the record” varies among the districts.
{¶ 18} For example, the Twelfth District Court of Appeals has held that “a trial court complies with its duty to make an ‘affirmative determination on the record’ under
{¶ 19} In contrast, the Sixth and Third District Courts of Appeals, for example, have required the trial court to make a specific finding regarding a defendant‘s ability to pay court-appointed counsel fees in order satisfy its duty to make an affirmative determination on the record. See, e.g., State v. Talley, 6th Dist. Lucas No. L-15-1187, 2016-Ohio-8010, 74 N.E.3d 868, ¶ 44 (holding that no hearing is required but “there must be a finding on the record that the offender has the ability to pay and that determination must be supported by clear and convincing evidence of record“); State v. Ramsey, 3d Dist. Marion No. 9-10-55, 2012-Ohio-134, ¶ 22.
{¶ 20} This court has not specifically addressed whether the ability-to-pay determination for court-appointed counsel fees can be inferred from a trial court‘s statement that it has reviewed a PSI, which contains information relevant to that determination. We conclude that it cannot.
{¶ 21} As stated above,
{¶ 22} In this case, the trial court reviewed the PSI, which included information about Taylor‘s age, employment history, income, and physical health. We can possibly infer from the trial court‘s review of the PSI that the trial court was aware of information relevant to the determination of Taylor‘s ability to pay court-appointed counsel fees, and, even as a matter of postdiction, that there was enough information for the court to have found that Taylor had or reasonably could be expected to have the ability to pay some appointed-counsel fees. Nevertheless, the court did not affirmatively find that Taylor has or will have the means to pay some or all of his counsel‘s fees and expenses. Since there was no determination that Taylor has or will have the means to pay his court-appointed counsel fees, the court erred in ordering Taylor to pay those fees.2
{¶ 23} Taylor‘s first assignment of error is sustained.
III. Ineffective Assistance of Counsel
{¶ 24} In his second assignment of error, Taylor claims that his trial counsel rendered ineffective assistance by failing to seek a waiver of court costs, the supervision fee, and the court-appointed counsel fees. Taylor asks that the court costs, supervision fee, and court-appointed counsel fees imposed by the trial court be vacated
{¶ 25} To establish ineffective assistance of counsel, a defendant must demonstrate both that trial counsel‘s conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688. A defendant is entitled to “reasonable competence” from his or her attorney, not “perfect advocacy.” See Maryland v. Kulbicki, 136 S.Ct. 2, 5 (2015), citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam).
{¶ 26} ”Strickland and its progeny establish that when a court is presented with an ineffective-assistance-of-counsel claim, it should look to the full record presented by the defendant to determine whether the defendant satisfied his [or her] burden to prove deficient performance.” Reeves v. Alabama, 583 U.S. ___, 138 S.Ct. 22, 26, 199 L.Ed.2d 341 (2017). Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel‘s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.).
{¶ 27} With respect to the court-appointed counsel fees, we have already determined that the trial court erred in ordering the payment of those fees without an express finding regarding Taylor‘s ability to pay those fees. Taylor‘s claim of ineffective assistance of counsel with respect to those fees is moot.
{¶ 28} With respect to the court‘s imposition of court costs, the trial court was required to impose court costs in Taylor‘s case. Although Taylor‘s trial counsel could have requested a waiver of the payment of those costs at sentencing, counsel‘s failure to do so does not prevent Taylor from now seeking a waiver of those costs.
{¶ 29} Finally, when a defendant has been sentenced to community control,
{¶ 30} Even if Taylor‘s defense counsel had been deficient in failing to request a waiver of the supervision fee, Taylor has not established that there was a reasonable probability that the trial court would have granted the waiver had counsel made such a request. At sentencing, Taylor was 53 years old with an 11th grade education. The PSI indicated that Taylor was financially supported by Social Security disability benefits. Although Taylor advised the PSI examiner that he did not remember how long he had received the benefits, the PSI indicated that during a PSI conducted in 2012, Taylor had reported that he received Social Security disability benefits in the amount of $683 per month. The PSI also indicated that Taylor has a child who
{¶ 31} The PSI examiner noted that Taylor reported having no mental disabilities; however, Taylor claimed that he suffers from short-term memory loss due to being injured in a hit and run accident in 2009, during which he suffered a collapsed lung and a broken hip and collar bone. The PSI investigator reported that Taylor “displayed large memory gaps during his PSI interview.” Taylor reported that his hip has not been replaced since the accident, which causes him to limp while walking and sometimes requires the assistance of a cane. While Taylor claimed he could not recall the names and locations of his prior employers, the PSI examiner noted Taylor had previously reported that he worked various jobs at Personnel World Temporary Services from 1982 to 1990 and at Millards from 1992 to 1995.
{¶ 32} At sentencing, the trial court stated that it had carefully reviewed the PSI. Although the court did not specifically find that Taylor had a present or future ability to pay a supervision fee of $250, the trial court could have reasonably determined that Taylor has the ability to pay the supervision fee. On this record, we cannot find that there was reasonably probability that the trial court would have waived the supervision fee had counsel requested a waiver.
{¶ 33} Taylor‘s second assignment of error is overruled.
Conclusion
{¶ 34} The judgment of the trial court will be reversed as to the imposition of court-appointed counsel fees and affirmed in all other respects. The matter will be remanded for the filing of an amended judgment entry that omits the imposition of court-appointed counsel fees.
DONOVAN, J. concurs.
WELBAUM, J., dissenting:
{¶ 35} I respectfully dissent from the majority‘s holding that, prior to imposing court-appointed counsel fees, the trial court must make an explicit finding as to whether a defendant has the ability to pay the fees and must specify the amount of fees the defendant can or reasonably may be expected to pay.
{¶ 36}
{¶ 37} The trial court‘s duty to make an ability-to-pay determination under
{¶ 38} Given the similarities between
{¶ 39} Because the trial court indicated that it reviewed the PSI in this case, and the PSI contained information indicating that Taylor had the ability to pay court-appointed counsel fees, I would overrule Taylor‘s first assignment of error and affirm the judgment of the trial court.
Copies mailed to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
David R. Miles
Hon. Dennis J. Adkins