STATE OF OHIO v. ERIC L. VEAL
C.A. CASE NO. 25253
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
April 19, 2013
[Cite as State v. Veal, 2013-Ohio-1577.]
FROELICH, J.
T.C. NO. 12CR745 (Criminal appeal from Common Pleas Court)
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
FROELICH, J.
{¶ 1} After Eric L. Veal pled guilty to felonious assault, a second-degree
{¶ 2} In his first assignment of error, Veal claims that “[t]he trial court erred in assessing costs without evaluating Veal‘s ability to pay.”
{¶ 3} Under
{¶ 4} Court costs are governed by
{¶ 5} In this case, the trial court told Veal that it was sentencing him to two years in prison, that “there‘s no restitution due, but [I‘m going to] order that you pay court costs.” Veal did not object to the order that he pay court costs or claim that he was indigent and could not pay the costs. Because the court was required to impose court costs, was not required to consider Veal‘s ability to pay before imposing them, and was not asked to waive the payment of costs due to Veal‘s indigence, the trial court did not err in ordering Veal to pay court costs without considering his ability to pay.
{¶ 6} In his brief, Veal also asserts that his trial counsel provided ineffective assistance by failing to object to the imposition of court costs or to seek a waiver of payment of those costs.
{¶ 7} To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated 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 result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 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. Id.
{¶ 8} The record provides limited information relevant to whether a request for a waiver of court costs would have been successful. The record reflects that Veal had appointed counsel in the trial court and on appeal due to his indigence. However, “[t]he
{¶ 9} Veal‘s first assignment of error is overruled.
{¶ 10} In his second assignment of error, Veal claims that “[t]he trial court erred by failing to notify Veal he could be ordered to perform community service if he fails to pay the court costs.”
{¶ 11} At the time of Veal‘s sentencing in April 2012, the trial court was required to notify him of certain consequences of failing to pay court costs.
(a) If the defendant fails to pay that judgment [for costs] 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 [and]
(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.
Former
{¶ 12} Reviewing the version of
{¶ 13} The State acknowledges that the trial court failed to notify Veal that he could be required to perform community service should he fail to pay court costs. The transcript of Veal‘s plea and sentencing hearing also reflects that notice was not given.
{¶ 14} The Tenth District recently held that since the defendant did not object to the judge‘s lack of advice at sentencing concerning the possibility of community service, the plain error standard should be applied. State v. Jackson, 10th Dist. Franklin Nos. 12AP-768, 12AP-769, 2013-Ohio-1152, ¶ 17. The court noted that the defendant was sentenced to 14 years in prison, that the State garnishes inmate accounts to collect court costs, and that the legislature might change the requirements by the time the defendant is released. The appellate court found no plain error in the court‘s lack of notice that the defendant might be required to perform community service after his release, and it overruled the assignment of error.
{¶ 16} We recognize that 2012 Sub.H.B. 247 made several substantive changes to
{¶ 17} 2012 Sub.H.B. 247 also authorized courts to cancel claims for costs due the court, if the amounts are uncollectible. The provisions state, “If at any time the court finds that an amount owing to the court is due and uncollectible, in whole or in part, the court may direct the clerk of the court to cancel all or part of the claim. The clerk shall then effect the cancellation.” See
{¶ 18} Unlike an order of community service as a condition of probation or community control, a court cannot imprison a person for failure to work to satisfy a civil obligation, such as costs. State v. Ellis, 2d Dist. Montgomery No. 22189, 2008-Ohio-2719, ¶ 19. Contrast State v. Daugherty, 2d Dist. Montgomery No. 20779, 2006-Ohio-240 (a defendant‘s failure to perform community service is properly addressed either as a violation of community control or as indirect contempt). This is true whether it is nominally for indirect contempt or for a “violation” of
{¶ 19} Veal‘s second assignment of error is sustained.
{¶ 20} Pursuant to the law in effect at the time of Veal‘s sentencing, the trial court erred by not instructing him as required by
HALL, J. and WELBAUM, J., concur.
Michele D. Phipps
Lucas W. Wilder
Hon. Barbara P. Gorman