STATE OF OHIO, Plaintiff-Appellee, v. DAVID WEATHERS, Defendant-Appellant.
CASE NO. CA2012-02-036
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/25/2013
[Cite as State v. Weathers, 2013-Ohio-1104.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-02-0300
John T. Willard, P.O. Box 35, Hamilton, Ohio 45218, for defendant-appellant
M. POWELL, J.
{1} Defendant-appellant, David Weathers, appeals a decision of the Butler County Court of Common Pleas imposing court costs following a resentencing hearing.
{2} In 2010, a jury found appellant guilty of domestic violence, felonious assault, and violation of a protection order. All three offenses stemmed from an altercation during which aрpellant grabbed his girlfriend by the throat, pulled her out of her car, and punched her in the face. At the time of the incident, the protection order against appellant was in
{3} Appellant appealed his sentence. On December 30, 2011, this court reversed appellant‘s sentence and remanded the case to the trial court for resеntencing. This court found that the three offenses were allied offenses of similar import and that the trial court committed plain error by not merging them. State v. Weathers, 12th Dist. No. CA2011-01-013, 2011-Ohio-6793, ¶ 24-25.
{4} The trial court held a resentencing hearing on January 19, 2012. At thе hearing, the state elected to proceed with the felonious assault charge. Consequently, the trial court merged the domestic violence charge and the violation of the proteсtion order charge with the felonious assault charge, sentenced appellant to five years in prison on the felonious assault charge, and imposed court costs.
{5} Appellant appeals, raising two assignments of error.
{6} Assignment of Error No. 1:
{7} THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
{8} Appellant argues hе received ineffective assistance of counsel at the resentencing hearing because (1) there was no entry in the record appointing an attorney to represent him, and (2) the attornеy who appeared at the hearing on his behalf challenged whether the violation of the protection order was a mergeable offense, notwithstanding our decision in Weathers.
{9} To establish ineffective assistance of counsel, appellant must show that his trial
{10} The record shows that following appellant‘s indictment, local counsel Daniel Hurr represented appellant, including during his 2010 jury trial and sentencing hearing. On appeal of his sentence, however, appellant was represented by the state public defender‘s office. We issued our decision in Weathers on December 30, 2011. On January 11, 2012, eight days before the resentencing hearing, the public defender‘s office moved the trial court to appoint local counsel to represent appellant at the resentencing hearing. Attorney Hurr represented appellant at the resentencing hearing. There is no entry in the record indicating Attorney Hurr‘s appointment.
{11} While there is no such journal entry, the record indicates that Attorney Hurr was appellant‘s counsel of record аt the hearing. The trial court started the resentencing hearing, stating: “Let the record reflect that David Weathers appears with counsel, Dan Hurr.” Thereafter, throughout the hearing, Attorney Hurr acted as аppellant‘s counsel. Thus, it may be presumed Attorney Hurr was appointed by the trial court at some point in the proceedings.
{12} In addition, neither appellant nor the state objected to Attornеy Hurr representing appellant at the hearing. Nor did appellant bring to the attention of the trial court the alleged lack of a journal entry appointing Attorney Hurr as his counsel. An appellаte court
{13} During the resentencing hearing, and after the state elected to proceed with the felonious assault charge, the trial court merged the domestic violence charge and the violation of the protection order charge with the felonious assault charge. The court then told the parties it would “proceed to sentencing solely on Count Two charging felonious assault.” At that point, Attorney Hurr questioned whether the violation of the protection order was a mergeable offense under the Ohio Supreme Court‘s test in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-1. The trial court rejected Attorney Hurr‘s argument and ultimately sentenced appellant to five years in prison.
{14} Because appellant was represented by an attorney at the resentencing hearing, and because the trial court merged two offenses with the felоnious assault charge and clearly rejected Attorney Hurr‘s mergeable offense argument, we find that appellant was not prejudiced by his counsel‘s performance. Accordingly, appellant did not receive ineffective assistance of counsel at the resentencing hearing. See Madrigal, 87 Ohio St.3d at 389; Gilbert, 2011-Ohio-4340 at ¶ 73.
{15} Appellant‘s first assignment of error is overruled.
{16} Assignment of Error No. 2:
{17} IT WAS ERROR FOR THE TRIAL COURT TO NEGLECT TO ADVISE THE DEFENDANT/APPELLANT WHEN COURT COSTS WERE IMPOSED, THAT THE COSTS INCLUDED JURY FEES AND THAT FAILURE TO PAY SAID COSTS COULD RESULT IN THE IMPOSITION OF COMMUNITY SERVICE TO PAY THE SAME AT THE RATE NOT TO
{18} Appellant challenges the trial court‘s imposition of court costs on the ground the court failed to notify appellant that court costs included jury fees, and that, should he fail to pay the costs, he could be ordered to perform community service. The state concedes the trial court failed to comply with
{19} “In all criminal cases, *** the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under [
(i) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approvеd 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.
(ii) 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.
{20} In the case at bar, the trial court imposed court costs during the resentencing hearing but failed to advise appellant that court costs included jury fees and that, should appellant fail to pay the costs, he could be ordered to perform community service. The trial court therefore committed error when it failed to so notify appеllant, as required under
{22} Likewise, the Second Appellate District held that the proper remedy was to “eliminat[e] the possibility that [a defendant] can ever be required to perform community service if he fails to pay court costs.” State v. Henderson, 2nd Dist. No. 24701, 2012-Ohio-3283, ¶ 12-13.
{23} This remedy was rejеcted by the First and Ninth Appellate Districts. The Ninth Appellate District held that when a trial court fails to comply with
{24} The First Appellate District adopted the reasoning of the Ninth Appеllate District and held that “the proper remedy for a trial court‘s failure to comply with
{25} We choose to follow thе reasoning and holding of the Ninth Appellate District. Consequently, we reverse that portion of the trial court‘s judgment imposing court costs, affirm the remainder of the trial court‘s judgment, and remand the matter to thе trial court for the proper imposition of court costs in accordance with
{26} Appellant‘s second assignment of error is well-taken and sustained.
{27} Judgment affirmed in part, reversed in part, and remanded.
HENDRICKSON, P.J., and S. POWELL, J., concur.