State v. TurnerState v. Turner
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Paul Dobson, Wood County Prosecuting Attorney, and Gwen Howe-Gebers and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee.
Lawrence A. Gold, for appellant.
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I. Introduction
{¶ 1} This is an Anders appeal. Appellant, Michael Turner, appeals the judgment of the Wood County Court of Common Pleas, revoking his community control sanctions and sentencing him to a prison term of one year following his admission to violating the terms of his community control.
{¶ 2} On March 17, 2011, Turner was indicted on one count of possession of cocaine in violation of
{¶ 3} While on community control, Turner tested positive for cocaine use on two separate occasions. In addition to his impermissible drug use, Turner violated the terms of his community control by leaving the state of Ohio without permission and failing to notify his probation officer that he was charged with various traffic offenses. Consequently, the trial court held a community control violation hearing, at which Turner stipulated to violating the terms of his community control. The court accepted Turner‘s stipulation and found him to be in violation of the terms of his community control. The trial court held a disposition hearing on November 2, 2012, at which the court sentenced him to the one-year prison term it previously reserved as part of his original sentence. Turner‘s timely appeal followed.
{¶ 5} Anders, supra, and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978), set forth the procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue. In Anders, the United States Supreme Court held that if counsel, after a conscientious examination of the case, determines it to be wholly frivolous, he should so advise the court and request permission to withdraw. Anders at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id.
{¶ 6} Counsel must also furnish his client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters that he chooses. Id. Once these requirements have been satisfied, the appellate court must then conduct a full examination of the proceedings held below to determine if the appeal is indeed frivolous. If the appellate court determines that the appeal is frivolous, it may grant counsel‘s request to withdraw and dismiss the appeal without violating constitutional requirements, or it may proceed to a decision on the merits if state law so requires. Id.
{¶ 7} In this case, Turner‘s counsel has satisfied the requirements set forth in Anders. Accordingly, this court shall proceed with an examination of the potential assignments of error set forth by Turner‘s counsel and the entire record below to determine if this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 8} In his Anders brief, Turner‘s counsel assigns the following possible errors:
I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE PREJUDICE OF APPELLANT AT SENTENCING BY IMPOSING FINANCIAL SANCTIONS WITHOUT CONSIDERATION OF APPELLANT‘S ABILITY TO PAY.
II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §10 OF THE CONSTITUTION OF THE STATE OF OHIO.
{¶ 9} Turner has not filed a pro se brief.
II. Analysis
A. Imposition of Financial Sanctions
{¶ 10} In his first potential assignment of error, Turner argues that the trial court erred in ordering him to pay court costs and a $500 fine without first inquiring into his ability to pay such expenses. Further, he contends that the trial court erred in imposing court costs without explaining to him what would happen if he failed to pay.
{¶ 11} As to Turner‘s contention that the trial court should have first determined that he was able to pay for the court costs and the fine, we must disagree. Former
{¶ 12} In addition to court costs imposed pursuant to
{¶ 14} Next, we consider Turner‘s contention that the trial court failed to properly notify him of the consequences of failing to pay court costs. Regarding such notification, former
{¶ 15} At the time the judge or magistrate 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 make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service 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 payment schedule.
(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified
{¶ 16} Here, the state concedes that “the trial court did not comply with the former version of
{¶ 17} Accordingly, we find Turner‘s first potential assignment of error well-taken. Generally, under Anders, we would appoint new appellate counsel for appellant to brief and argue this issue. However, the record demonstrates that the trial court failed to comply with
{¶ 18} In remedying the trial court‘s failure to provide proper notification under
B. Ineffective Assistance of Counsel
{¶ 19} In his second potential assignment of error, Turner asserts that he received ineffective assistance of counsel.
[A] court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel‘s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Id. at 697.
{¶ 21} Here, Turner argues that his trial counsel was ineffective for failing to object to the imposition of financial sanctions at sentencing. However, Turner has failed to demonstrate that the result of the proceedings would have been different had defense counsel objected.
{¶ 22} Concerning the imposition of financial sanctions, it is well settled that “an indigent defendant must move a trial court to waive payment of costs at the time of sentencing.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23. Upon a defendant‘s motion, the trial court possesses the discretion to waive such costs. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶ 8; State v. Phillips, 6th Dist.
{¶ 23} Accordingly, Turner‘s second potential assignment of error is not well-taken.
III. Conclusion
{¶ 24} We hereby grant appellate counsel‘s motion to withdraw, and instruct the trial court to appoint new counsel to represent Turner at resentencing as it pertains to the imposition of court costs. The judgment of the Wood County Court of Common Pleas is reversed, and this matter is remanded to the trial court solely for resentencing consistent with the requirements of
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Stephen A. Yarbrough, J. CONCUR.
JUDGE