STATE OF OHIO, Aрpellee v. DARREN JEFFREY TOMLINSON, Appellant
C.A. No. 25924
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 14, 2013
2013-Ohio-3520
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 08 2231 (A)
Dated: August 14, 2013
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant Darren Tomlinson moved to reopen his appeal from his convictions in the Summit County Court of Common Pleas. This Court granted his application to reopen, and the matter is now before us. For the reasons set forth below, we vacate our prior decision and reverse.
I.
{¶2} On August 19, 2010, Mr. Tomlinson was indicted on two counts of possessing cocaine, in violation of
{¶3} A jоint trial for Mr. Tomlinson and his co-defendant, Ms. Symphone Smith, commenced on March 21, 2011. Thereafter, a jury found Mr. Tomlinson guilty on all counts with the exception of the two trafficking counts. The trial court sentenced Mr. Tomlinson to a total of eleven years in prison.
{¶4} Mr. Tomlinson appealed and this Court affirmed his convictiоns. See State v. Tomlinson, 9th Dist. Summit No. 25924, 2012-Ohio-1441. Subsequently, Mr. Tomlinson filed a motion to reopen which we granted.
II.
{¶5} In State v. Graves, 9th Dist. Lorain No. 08CA009397, 2011-Ohio-5997, this Court explained our obligations in a reopened appeal:
Under
Rule 26(B)(9) of the Ohio Rules of Appellate Procedure , “[i]f th[is][C]ourt finds that thе performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency, [it] shall vacate its prior judgment and enter the appropriate judgment. If th[is][C]ourt does not so find, [it] shall issue an order confirming its prior judgment.” Deficient performance by a lawyer is a performance that falls below an objective standard of reasonable representation. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, [] ¶ 204, citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A defendant is prejudiced by the deficiency if there is a reasonable probability that, but for his lawyer‘s errors, the result of the proceeding would have been different. [Hale at ¶ 204, ]citing Strickland [at 694.] “A reasonable probability is а probability sufficient to undermine confidence in the outcome.” Strickland [at] 694.
Graves at ¶ 9. Upon our review of the record, we have concluded that the performanсe of Mr. Tomlinson‘s appellate counsel was deficient. Consequently, we vacate our opinion in State v. Tomlinson, 9th Dist. Summit No. 25924, 2012-Ohio-1441, and enter the following judgment.
III.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY FAILING TO PROVIDE DUE PROCESS AS OUTLINED IN
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT FOLLOWING
{¶6} Mr. Tomlinson essentially asserts in his first and third assignments of error that the trial court failed to comply with
{¶7} At the time of Mr. Tomlinson‘s sentencing hearing,
[i]n all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs. At the time the judge or magistratе imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
(a) If the defendant fails to pay that judgment or fails to timely makе payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community servicе in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved pаyment schedule.
(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the speсified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.
Former
{¶8} “This Court has concluded that ‘[t]he statute requires both that the trial court (1) notify the defendant at the time of sentencing that costs will be assessed so that he has an opportunity to seek a waiver, and (2) notify the defendant that his failure to pay the costs could result in imposition of community service, but that he would reсeive credit toward the costs from any community service imposed.‘” State v. Boone, 9th Dist. Summit No. 26104, 2013-Ohio-2664, ¶ 29, quoting State v. Williams, 9th Dist. Summit No. 26014, 2012-Ohio-5873, ¶ 23. In the instant matter, the trial court failed to inform Mr. Tomlinson of the notifications required by
ASSIGNMENT OF ERROR II
THE TRIAL COURT DENIED MR. TOMLINSON HIS RIGHTS UNDER
{¶9} Mr. Tomlinson asserts in his second assignmеnt that the trial court erred in imposing a mandatory financial sanction without determining Mr. Tomlinson‘s ability to pay that sanction. We agree.
{¶10} At the time of Mr. Tomlinson‘s sentencing hearing,
{¶11} While the trial court‘s journal entries prior tо sentencing indicate that a “summary pre-sentence investigation and report” was ordered, there is nothing which suggests one was actually completed. A pre-sentence investigation report is not mentioned at the sentencing hearing or in the judgment entry of conviction, and none is present in the record on appeal. Moreover, the State has not asserted that a pre-sentence investigation report was completed but not made рart of the record on appeal. Further, while there is discussion at the sentencing hearing that seems to indicate that Mr. Tomlinson was able to retain сounsel for trial, Mr. Tomlinson‘s trial counsel also indicated that Mr. Tomlinson had no funds to retain counsel for appeal. See Williams at ¶ 19, quoting State v. Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 29 (noting in a parentheticаl that “‘[a]n offender‘s ability to pay a fine over a period of time is not equivalent to the ability to pay legal counsel a retainer fee at the outset of the criminal proceedings[]‘“). There was no discussion about Mr. Tomlinson‘s ability to pay the mandatory fine, nor is there any financial information in the rеcord before us that would have allowed the trial court to make that determination. Thus, Mr. Tomlinson did not have an opportunity to challenge his ability to рay the fine. Finally, the trial court did not expressly state at the sentencing hearing or in the judgment entry of conviction that it considered Mr. Tomlinson‘s ability to pay thе fine before ordering him to pay it.1
IV.
{¶13} This Court sustains Mr. Tomlinson‘s assignments of error and remands the matter to the Summit County Court of Common Pleas for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant tо
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which timе the period for review shall begin to run.
Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
CARR, J. CONCURRING IN JUDGMENT ONLY.
{¶14} Although I agree that this matter must be remanded for resentencing, I would not vacate our prior decision in Mr. Tоmlinson‘s direct appeal. Instead, I would confirm our prior judgment, but remand the matter to the trial court for the proper imposition of court costs. State v. DeBruce, 9th Dist. Summit No. 25574, 2012-Ohio-454 2012, ¶ 36-38.
APPEARANCES:
HEATHER R. JOHNSTON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prоsecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.