STATE OF OHIO, Plaintiff-Appellee, v. MATTHEW WAYNE WILLISON, Defendant-Appellant.
Case No. 18CA18
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
RELEASED 01/17/2019
[Cite as State v. Willison, 2019-Ohio-220.]
Hoover, J.
DECISION AND JUDGMENT ENTRY
James A. Anzelmo, Anzelmo Law, Gahanna, Ohio, for defendant-appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for plaintiff-appellee.
Hoover, J.
{1} Matthew Wayne Willison pleaded guilty to trafficking in heroin in the Athens County Court of Common Pleas. After accepting the plea, the trial court found him guilty, imposed a nine-month prison sentence, and ordered that he pay court costs. On appeal, Willison contends that his guilty plea was not entered knowingly, intelligently, and voluntarily; and that he received ineffective assistance of counsel.
{2} For the following reasons, we conclude that both of Willison‘s assignments of error are without merit, and affirm the judgment of the trial court.
I. Facts and Procedural History
{4} On June 13, 2018, a change-of-plea hearing was held. Counsel informed the court that a negotiated plea agreement had been reached and summarized that agreement as follows:
[Prosecuting Attorney:] * * * It‘s my understanding that the Defendant will plead guilty to the indictment charging him with one count of trafficking in heroine [sic]. Violation of
2925.03(A)(1) , a felony of the fifth degree. The facts that gave rise to this matter on or about April the 17th of this year, of last year, Defendant sold half a gram of heroine [sic] to a confidential informant from his home in Chauncey in Athens County, Ohio for $100.00. There would be a joint sentence agreement that the Defendant serve six months in prison with no early release and costs be payable $25.00 per month within twelve months of sentencing. DNA collection and three years of optional post release control. The Defendant does not fall under TCAP as it‘s a drug trafficking offense which takes him out of TCAP. He‘s previously been to prison as well and so uh, a prison sentence would be appropriate for this Defendant and that‘s my understanding of the agreement.* * *
[The Court:] Good. Mr. Francis.
[Defense Attorney:] Uh, yes your honor. We are going to change our plea from not guilty to guilty of the original charge of F5 trafficking. Mr. Driscoll correctly stated the agreement for the stated offense. The agreement is six months prison.
Sentence him today. Uh, give him credit for time previously served and obviously he owes court costs and I believe that is everything. We are asking the Court to sentence today and the defense will waive any PSI process. Thank you your honor.
[The Court:] Mr. Willison you‘ve heard what your attorney said. Is this what you wish to do?
[Willison:] Yes sir.
{5} A “Plea of Guilty[,] Judgment Entry of Guilty” document was also filed on June 13, 2018. The document, signed by Willison, summarized the negotiated plea agreement as follows:
I understand the nature of these charges and the possible defenses I might have. I am satisfied with my attorney‘s advice regarding any defenses I might have. I am satisfied with my attorney‘s advice, counsel and competence. I am not now under the influence of drugs or alcohol. No threats have been made to me. No promises have been made to me, except as part of this plea agreement, stated entirely as follows: Defendant will plead guilty to the indictment and stipulate to the facts in the indictment, bill of particulars, and sufficient facts for a finding of guilt. As Defendant was indicted for Drug Trafficking, this takes the sentence out of the requirements of TCAP; Defendant has previously been convicted of a felony offense, and previously has served a prison term. AGREED and JOINT sentencing recommendation of: Six Months prison; Court costs payable at a rate of no less than $25/month within 12 months of sentencing;
DNA collection; and 3 years of optional post-release control. Defendant agrees not to file for judicial release or accept any other kind of early release, including but not limited to transitional control or intensive program prison. The State‘s agreement is contingent upon Defendant following his bond conditions, being a law abiding citizen, complying with the PSI process and any other negotiated terms. Sentence today.
(Emphasis sic.)
{6} Willison subsequently entered a plea of guilty to trafficking in heroin in violation of
{8} Ultimately, the trial court sentenced Willison to a total of nine months in prison. The trial court also ordered Willison to pay court costs. His conviction and sentence were journalized by way of entry dated June 18, 2018. Willison filed a timely notice of appeal.
II. Assignments of Error
{9} Willison assigns the following errors for our review:
First Assignment of Error:
Matthew Willison did not knowingly, intelligently and voluntarily enter his guilty plea to drug trafficking, in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.
Second Assignment of Error:
Willison 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.
III. Law and Analysis
A. Validity of Guilty Plea
{11} ” ‘When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.’ ” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). In determining whether a guilty or no contest plea was entered knowingly, intelligently, and voluntarily, an appellate court examines the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards. State v. Cooper, 4th Dist. Athens No. 11CA15, 2011-Ohio-6890, ¶ 35.
{12} ”
{13} Substantial compliance with
{14} But strict compliance with
{16} Recently, in State v. Howland, 4th Dist. Highland No. 17CA3, 2018-Ohio-613, this court was faced with a near identical argument. In Howland, the defendant pleaded guilty to possession of methamphetamine. Id. at ¶ 3. The trial court conducted a
{17} Here, other than the positive drug screen, Willison cites to nothing in the record that indicates he was under the influence of drugs to the point that he could not understand the plea proceedings. Following the parties recitation of the plea agreement, the trial court asked Willison “Is this what you wish to do?” and Willison responded “Yes sir.” The trial court asked “Your not under the influence of any drug or alcohol as you sit here today are you?” and Willison responded “No.” The record further shows that the trial court conducted a proper
{18} Next, Willison contends that his plea was not knowingly, intelligently, and voluntarily made because following his request for the furlough the State modified the terms of the plea agreement, and the trial court accepted the modification without conducting a new
{19} Again, this court was recently faced with a similar argument in State v. Billiter, 2018-Ohio-733, 106 N.E.3d 785 (4th Dist.). In Billiter, the defendant pleaded guilty to four drug trafficking counts pursuant to a negotiated plea agreement. Id. at ¶ 4. Under the terms of the negotiated plea agreement the defendant was to receive an aggregate three-year prison term with eligibility for judicial release at two years. Id. The trial court conducted a
{20} On appeal, the defendant argued that his plea was not knowingly, intelligently, and voluntarily made. Id. at ¶ 12. We rejected the argument, at ¶ 24, concluding:
[W]e find that the trial court complied with
Crim.R. 11(C) during the initial plea colloquy in September 2015. Even though the sentence was increased from that of the original plea bargain, both parties agreed to the increased sentence. After examining the totality of the circumstances, we determine that the trial court complied with the constitutional and procedural safeguards and that [defendant‘s] plea was entered knowingly, intelligently, and voluntarily.
{21} In the case sub judice, as in Billiter, the trial court complied with the
{22} Based on the forgoing, we overrule Willison‘s first assignment of error.
B. Assistance of Counsel
{23} In his second assignment of error, Willison contends that because he is an indigent defendant with appointed counsel, his counsel provided ineffective assistance by failing to request at the sentencing hearing that the trial court waive court costs.
{24} Criminal defendants have a right to counsel, including a right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), fn. 14. To establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
{25} In all criminal cases the judge must include in the sentence the costs of prosecution and render a judgment against the defendant for such costs, even if the defendant is indigent.
{26} ”
{27} Here, as initial matter, we note that Willison agreed to pay court costs as part of the negotiated plea agreement. Thus, we cannot say that his counsel acted deficiently by filing to request a waiver of court costs at sentencing. Nevertheless, even if we were to assume, arguendo, that trial counsel acted deficiently by failing to request a waiver of costs at sentencing,
IV. Conclusion
{28} Having overruled both of Willison‘s assignments of error, we affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
By: Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.