STATE OF OHIO v. ROBERTA L. THOMAS
Appellate Case No. 2020-CA-27
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
May 21, 2021
2021-Ohio-1746
Trial Court Case No. 2020-CRB-490 (Criminal Appeal from Municipal Court)
Rendered on the 21st day of May, 2021.
ROGER A. STEFFAN, Atty. Reg. No. 0086330 and MARK M. FEINSTEIN, Atty. Reg. no. 0065183, Champaign County Municipal Court Prosecutor‘s Office, 205 South Main Street, Urbana, Ohio 43078
Attorneys for Plaintiff-Appellee
JAMES A. ANZELMO, Atty. Reg. No. 0068229, 446 Howland Drive, Gahanna, Ohio 43230
Attorney for Defendant-Appellant
TUCKER, P.J.
Facts and Procedural History
{2} During the course of a contentious divorce, Thomas dumped trash and other detritus onto her husband‘s property. As a result, she was charged with criminal mischief in violation of Saint Paris Village Ordinance (Village Ordinance) No.
Analysis
{3} Thomas‘s sole assignment of error is as follows:
Roberta Thomas received ineffective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.
Thomas asserts that trial counsel provided ineffective assistance because she did not
{4} Though court costs and a fine are distinсt financial obligations, consistent with Thomas‘s argument, we will consider them together.
{5} In State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, the Ohio Supreme Court ruled that “when an indigent defendant makes an ineffective assistance of counsel claim based upon counsel‘s failure to request a waiver of court costs, a reviewing court must apply the test in State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989), which adopted the standard *** announced in [Strickland v. Washington, 446 U.S. 668, 194 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] *** .” Id. at ¶ 1. Under this standard, a defendant must establish that “counsel‘s performance fell below an objective standаrd of reasonableness and that there exists a reasonable probability that, but for counsel‘s error, the result of the procеeding would have been different.” Davis at ¶ 10, citing Bradley, paragraphs two and three of the syllabus. A reasonable probability is established when counsel‘s error “undermine[s] confidence in the outcome.” Id., quoting Strickland at 694.
{6} When reviewing an attorney‘s failure to file an affidavit reflecting a defendant‘s indigenсy and then to request a waiver of a mandatory fine, we, in this analogous circumstance, have concluded that a Bradley/Strickland ineffective assistance of counsel analysis is required. State v. Fultz, 2d Dist. Champaign No. 2018-CA-22, 2019-Ohio-2593, ¶ 37. For purpоses of this appeal, we will analyze trial counsel‘s failure to request that a fine not be imposed under the ineffective assistаnce of counsel standard.
{7} The only indication in the record that Thomas was indigent was that she had appointed counsel. But the record also reflected that Thomas, age 34, was employed by the Graham Local School District as an aide and a bus driver аnd had been so employed for five years. Counsel was informed at the sentencing hearing that Thomas‘s total financial obligation wаs to be $399, and that the trial court would allow payment over time with a minimum obligation of $20 per month.
{8} The Eighth District Court of Appeals, in State v. Ledbetter, 8th Dist. Cuyahoga No. 104077, 2017-Ohio-89, explained as follows why the analysis is different when deciding whether to appoint counsel versus whether to waive court costs or not impose a fine:
[Ledbetter] pоints to the finding that he was indigent for purposes of appointment of counsel. However, that determination is qualitatively different than a finding that a person does not have the present or future ability to pay a fine or court costs. A finding of indigency for the purposes of being provided with counsel is a narrow examination of the resources a person has at the time to be able to hire аn attorney. The considerations for the indigency for representation do not examine a person‘s future ability to hire an attorney. The determination of indigency for purposes of the payment of fines and costs are therefore different. Fines and costs constitute a debt that continues into the future whereby a person can make payments over time or work off the debt through cоmmunity work service.
Considerations of a future ability to do community work service or to make payments are necessary and unique tо the court‘s inquiry for the payments of fines and costs. This is why a finding of indigency for purposes of appointment of counsel is not sufficient tо warrant a waiver of costs and fines at sentencing.
Id. at ¶ 18, citing State v. Simpson, 8th Dist. Cuyahoga No. 101088, 2014-Ohio-4580, ¶ 20.
{9} Given this difference and the record in this case, we cannot conclude that trial counsel provided ineffective assistance by not requesting a waiver of court costs and that a fine not be imposed. This сonclusion is based upon Thomas‘s employment, the total obligation being $399, and the allowance of a $20 per month payment рlan. Given these circumstances, the record does not demonstrate that Thomas was indigent as it related to her ability to pay the court costs and fine.
{10} Turning to the second part of the test and assuming deficient performance, it also is not apparent to a reasonable probability that the trial court would have waived the court costs and not imposed a fine, if requested, under the circumstances presented.1 In short, we conclude that Thomas has not established either prong of the ineffective assistance of counsel test on this record. As such, Thomas‘s sole assignment of error is overruled.
{11} The judgment of the Champaign County Municipal Court is affirmed.
HALL, J. and EPLEY, J., concur.
Copies sent to:
Roger A. Steffan
Mark M. Feinstein
James A. Anzelmo
Hon. Gil S. Weithman